Richard Kiendi Mulandi v Samuel Ndivo Kimeu & James Mutwota Muthama [2018] KEHC 7059 (KLR)

REPUBLIC OF  KENYA

IN THE HIGH COURT OF KENYA  AT MAKUENI

ELC  NO. 85  OF 2017

RICHARD KIENDI  MULANDI.......................................PLAINTIFF

VERSUS

SAMUEL  NDIVO KIMEU.....................................1ST DEFENDANT

JAMES MUTWOTA MUTHAMA........................2ND DEFENDANT

JUDGMENT

1) By his  plaint dated the  26th  November, 2007  and filed  in court on even date, the plaintiff  prays for judgment  against the defendants jointly and severally for;

i. Declaration that the plaintiff  is the rightful  owner of land parcel number  2032 Ikalyoni Adjudication Section.

ii. An order for injunction against the defendants  jointly and severally from alienating  , transferring or trespassing thereto on land parcel number 2032 Ikalyoni Adjudication  Section.

iii. Cost and interest of the suit

2) The plaintiff’s claim is denied by the defendants in their joint statement of defence and counterclaim dated 22nd April, 2008 and filed in court on 23rd April, 2008.

3) In their counterclaim, the defendants pray for judgment to be entered  in favour of the second defendant for;

i. Mesne profits for loss of use from 2006 up to date vacating land parcel number 2031 Ikalyoni Adjudication Section, Makueni District

ii. Costs of the suit.

4) On the 28th April 2008, the plaintiff filed a reply to defence and counterclaim dated the same date.  In paragraph 6 of  his reply to defence and defence to counter claim, the plaintiff has averred that the counterclaim is bad in law, incompetent as it does not comply with the mandatory provisions of the  law and reserved the right to apply for its striking out at  an opportune time.

5) When the matter came up for  hearing  on 21st November, 2017, the court, with the consent of the parties herein, directed that the matter proceeds from where it had reached based on the fact that one witness did  testify before Lenaola, J  as he then was, on the 6th October, 2009.

6) During  the hearing  the plaintiff, Richard Kiendi Mulandi (PW2), adopted his undated statement filed in court on the 3rd November, 2014.  His case was that parcel number  205 Ikalyoni  belongs to his grandfather.  He  said that he has sued  the first defendant  who is  his cousin in order to recover ownership  of the said  land parcel number 205.  He disclosed that the first defendants parents moved into his father’s  compound when their home became infested with  flees and jiggers and pointed out that his grandfather allowed the first defendant’s parents to live on the land  out of good will. He went on to say  that  demarcation process  began in 1994. He added  that  when they appeared  before the Land Adjudication Committee, the committee  erroneously held that the defendants were the owners of  the land  in dispute on the basis of the developments they had made on the ground.

7) He said that he  did not appear before the arbitration board because they wanted permission to do a traditional oath against the defendants. He also said  that permission could only be granted  to perform the traditional oath during the objection proceedings. It was also his evidence that he and others sued  over land parcels  number  204  and 205 Ikalyoni and that during  the objection proceedings No. 391 in  Makueni District, they  found  out  that  the first defendant had  alienated part of land parcel number 205 to extract land parcel number 2032 Ikalyoni  Adjudication Section which  he then sold to the second defendant.  According  to him, the outcome of the objection proceedings  was that the Tribunal held  that   he was the rightful owner of both  land parcels number  204 and 205. He said that the Tribunal directed   that the defendant’s name should  be deleted from the register of both land  parcel numbers 204 and 205.

8) The plaintiff’s  evidence  in cross-examination was  that the suit land  was  his.  He said that  he was the one who  filed  objection proceedings number 390.  He agreed that there were proceedings  initiated by his  father before the Adjudication Officer and that the latter did  not rule in his  father’s favour.  He said that land parcel number 2032 is occupied by the  second  defendant who purchased  the same from  the first defendant in or around the year 2003.  It was also his evidence that the Adjudication Officer surveyed parcels number 204 and 205.

9) In  his evidence in re-examination, the plaintiff told the court that the two parcels are in his name.

10) The  plaintiff   called three (3) witnesses in support  of his case.  These were Godwin  Mutembei Njoki (PW1), Peter Ndivo Kilonzo (PW3) and Mukeko Mutungi(PW4). This is what the  three had to say regarding  the subject matter of  this suit.

11) Godwin’s (PW1) evidence in chief was that he is from the Land Adjudication office in Makueni. He went on to say the records for plot  number 2032 show that the  registered proprietor  is James Mutwota   and that the plot was extracted from plot  number 205 through an objection on 28th October, 2003. He  pointed out that Samuel Ndivo Kimeu was the owner of plot number  205. He said that subdivision was done before the determination of the objection. He added that the dispute is about ownership of plot number 2032 and that he gave consent  to refer the  dispute in court vide the letter dated  9th October, 2007 (PEX no.1).  He also said that he had a  letter dated 28th August, 2007 that confirms that plot number  2032 belongs to the plaintiff.

12) Godwin’s(PW1) evidence in cross-examination was that the plaintiff was not a party during   the proceedings before the Arbitration Officer. He revealed that objection proceedings number 391 of 2003 was with regard to plot numbers  204 and 205 where the parties were the two defendants.  Godwin (PW1) added that the plaintiff always  insisted that he was entitled to plot number  2032 which was a sub-division of plot number 205. He said that in the proceedings before the Adjudication Board, plot number 205 was given to the first defendant and pointed out  that it was a mistake to subdivide  the said land before  the objection was determined.  He said that a surveyor was meant to go and map out  plot number 2032 in favour of the first defendant. He  accepted  that the Land Adjudication Officer may have made a mistake regarding  the dispute herein. He said that he disagrees with  letter dated 10thMay, 2007 (DEX 4 ) that  indicates  that the plaintiff should  appeal against  the  decision that was arrived  at in the dispute resolution.

13) Godwin’s (PW1) evidence  in re-examination was that plot number 205 still exists. He also said  that plot number 2032 exists in their   records.

14) Peter Ndivo  Kilonzo  (PW3) told the court that Samuel  Ndivo (first  defendant) sold  land   to James  Mutwota  (the second defendant)  before the issue  of its ownership  could be  determined. He revealed that the adjudication process erred when it transferred  the land in question to the defendants.

15) Peter’s (PW3) evidence in cross-examination was that parcel number 205 Ikalyoni is family land which the plaintiff inherited since his parents are deceased.  He said that the Adjudication Officer registered plot number  204 in the name of   Samuel’s brother while  plot  number 205 was registered  in the first  defendant’s name. He said that the Adjudication Officer decided that plots number 204 and 205 Ikalyoni belonged to the first defendant and his brother.

16) He said that the plaintiff  was in possession of part of plot number 205 while the second defendant was in occupation of plot number  2032.  He revealed that no one was residing in plots numbers 204 and 205 since the first defendant  were ordered  to move out of  the parcels  in question and they did so.

17) Mukeku Mutungi’s (PW4) evidence in  chief was that when the first defendant moved into  land  parcels known as 204 and 205 Ikalyoni  which  were   then unregistered, it  was purely on humanitarian  basis. That when the surveyors went to the  witness’s home area in  1994 they  registered the family of the first defendant as the owners of the suit land  since they had planted coffee and fruit trees on the parcels of land in question. He said that when the plaintiff appeared before the Land Adjudication Committee,  the latter erroneously held  that the defendants were the  owners of  the land because they had been farming on the land in dispute. He  pointed out that the defendants had  however moved out of the land.

18) It was also Mukeko’s (PW4) evidence that the plaintiff filed objection proceedings number 391 in respect of  parcels number 204 and 205 where it was held  that the first defendant  had alienated  part of  parcel number  205 to extract parcel number  2032 Ikalyoni Adjudication which  he proceeded to sell to the second defendant.

19) His evidence in cross-examination  was that the land  initially  belonged to the plaintiff’s grandfather. He added  that he only learnt of sale of the suit land which the plaintiff still uses when they made enquires  at the lands office.

20) The case for the second defendant was that he knew the history of plot number  205 as belonging  to the first defendant who had been in occupation of it  ever since he was born. He said that he purchased a portion of plot 205 from the first  defendant who had  offered it for sale. He said that he had a sale agreement  dated 10th August, 2003 (Dex No.  1). That  after acquiring the land, he started developing it. He said that he reported  to the adjudication officer so  that his  portion could be extracted from plot  number  205.  He went  on to say the objection committee  in its finding  held that plot  205 had no dispute  and  as such, he was given  number  2032 which was extracted from  the said plot  number 205.  He said   that he continued developing  his plot number  2032 when the plaintiff  raised a complaint and proceeded  to destroy his crops and  plants such as beans, banana plants,  mango and guava trees. It  was  his evidence  that he reported the  matter to Kilome Police  Station from where the  matter was  referred to the Land Adjudication  and Settlement  Department  Makueni.

21) His  evidence in cross-examination was that the first defendant  did not show him that he owned the land that he had offered  for sale. Regarding  the letter dated 7th April, 2008 (Dex  No. 7)  the second  defendant   told  the court that it shows  that plot number  205 belongs to the first  defendant.  The second  defendant  went on to say that the plaintiff’s  name was not in the records when he purchased the land and pointed  out that the plaintiff’s name  came up after the adjudication proceedings by  which  time he (the  second defendant) had already purchased the land. He revealed  that the  plaintiff’s  name was registered after he won  the adjudication proceedings.

22) It was also  his evidence that previously  plot numbers  204  and 205 were in the name of the first defendant.

23) His evidence  in re-examination was that Dex No. 7 came  up 5 years after he purchased the land.

24) The case for the first defendant was  that he is the rightful owner of plot number  205 from which plot  number 2032 was excised and given to the second defendant.  He said  that he was the one who sold the portion of 205 i.e  plot   number   2032 to the second defendant.

25) According  to the first defendant, plot  number  205 belonged  to his late father, Kimeu Mbatha, who  lived in the land in the early 1890s. He pointed out that his late father was buried  on the  land in question.

26) The first  defendant  told the court  that during the demarcation  of the adjudication section in 1994, the parcel belonging  to his  late father was divided into  two (2) portions namely plot number  205  which was registered in his name and plot number 204 which  was registered  in the  name of David  Kimeu Mbatha. He went on to say that the plaintiff’s father, Mulandi Nzioka, filed a case with the Land Adjudication Committee the same being  number  IKA/1/94P/NOS 205 and 204. He said that Adjudication Committee concluded that plot  number 205 was his  while plot number 204 belonged to  David   Kimeu Mbatha.

27) The first defendant told the court that he continued to develop his plot number 205 after the conclusion of the case  until the year 2003 when he decided  to sell a portion of it  to second  defendant.

28) He said that the objection  that the plaintiff  later filed concerning plot number 205 was determined in his  absence. He  added that the plaintiff was awarded plot number  205  after plot number 2032 had  already been extracted. According  to him, the appeal  before  the Minister is pending  hearing and determination.

29) His evidence in cross examination was that there were  no objection proceedings when he sold the land to the second   defendant. He said   that he appealed after the board  ruled  in favour  of the plaintiff after failing  to grant him a  chance to be heard .

30) Jackson Mwanthi Ndetis (DW1) evidence  in chief was that plot number 205 belongs to the first  defendant. He said  that he witnessed the sale of a portion of plot number 205 by the  plaintiff to the second defendant.

31) His evidence in cross-examination was that he knows that there is an appeal pending before the Minister.

32) David Kimeu Kimeu  Mbatha’s  (DW2) evidence in chief was that he is a brother of the first defendant and  that plot  numbers   204 and 205 belonged  to his father.  He went  on to say  plot  number  2032 was  excisioned  from plot number  205 and later sold to the second  defendant by the  first  defendant. He was not  cross-examined.

33) By the time of writing  this  judgement , only  the plaintiff’s  counsel had filed   her submissions.

34) The plaintiff’s counsel was of the opinion  that  there are  five (5) issues  for determination. The five issues according  to her were;

i. Whether  or not  the plaintiff was the registered proprietor  of land parcel No. 204 and 205  Ikalyoni  Adjudication section.

ii. Whether  or not  the 1st  defendant, without  the plaintiff’s father’s knowledge caused Land Parcel No. 205 Ikalyoni Adjudication section to be subdivided and plot no. 2032 curved  out.

iii. Whether  or not the sale of plot No. 2032 curved out of Land Parcel 205 Ikalyoni Adjudication section was   legally sold to the 2nd  defendant.

iv. Whether or not the plaintiff did not appeal in Objection Proceedings No. 390 on 22/4/2006 and whether  failure   to appeal meant accepting the Adjudication Committee’s  decision.

v. Whether or not the 2nd  defendant  is entitled to mesne profits for loss of use from 2006 to date of vacating  land parcel no. 2032.

35) On the issue of whether or not the plaintiff is the registered owner of parcel number  204 and 205 Ikolyoni adjudication section, the  plaintiff’s counsel submitted that  the letter  dated 7th April, 2008 from the Ministry of Lands which is document number  6 in the  defendant’s  list of documents   indicate that parcels number 204 and 205 Ikalyoni adjudication section are registered in the plaintiff’s name. The counsel pointed out the letter dated 7th May, 2007 and listed as document   number 4 in the defendants’ list of documents shows that  even though it warns the plaintiff  to desist from encroaching  on land  parcel 2032, the  objection  proceedings  reveal  that the  land was awarded to him.

36) On the issue of whether  or not the first defendant without the plaintiff’s father’s knowledge caused land  parcel number  205 Ikalyoni adjudication section to be subdivided and plot number  2032 curved out,  the counsel submitted that the evidence of the plaintiff shows that the first defendant’s family was allowed to settle  on the land  since their own land was infested  with fleas and jiggers.

37) Regarding the issue of whether or not the sale of plot number  2032  that  was curved   out  of land parcel number 205 Ikalyoni adjudication  section was legally sold to the second defendant, the plaintiff’s counsel submitted that since the first defendant was and still is not the owner of land parcel number  2032, he could not pass a   better title.

38) On the issue of whether  or not the plaintiff appealed in  objection proceedings 390 and whether his  failure to appeal meant that he had accepted the adjudication committee’s  decision, the counsel  submitted  that the plaintiff stated that he was advised  that the taking  of oath could only be granted during the objection stage and hence  he opted not to appeal.

39) On the issue  of  whether or not the second defendant is entitled  to mesne profits, the counsel submitted that the latter  had  admitted that he was in occupation and use of the suit land and hence he was the one who  ought to compensate  the plaintiff.

40) Having read the evidence on record and the submissions filed by the plaintiff’s counsel, I am of the view that the  issues for determination can be  reduced to the following;

i.  Who is the registered  proprietor  of plot number  204 and 205

ii. Whether the extraction  of plot number  2032 from plot  number 205 and its subsequent  sale to the second  defendant  by the first defendant   was valid.

iii. Whether   the second  defendant is entitled  to mesne profits.

41) From the evidence on record the plaintiff was the one who filed the objection proceedings  number   391 in Makueni  as can be seen from the plaintiff’s evidence and that of  the two defendants in cross-examination .  There is evidence  to show that  the determination of the objection proceedings  was that the plaintiff was found to be the owner of land  parcels number 204 and 205.

42) The determination ordered that the names of the defendant to be deleted from the register. Even though the first defendant informed the court that he appealed  to the minister after the determination of the objection proceedings, he did not tell the court the steps, if any, that he has put in  place to have the appeal heard. The onus was upon him to have the appeal heard and determined.

43) Based  on the determination in the objection proceedings number 391, the extraction of plot number 2032 from parcel number  205 is not valid. It therefore follows that the sale to the second defendant by the  first defendant  cannot hold. In the circumstances, I hold that  the proprietor of plot number 204 and 205  is the plaintiff  herein.  I have already stated that the extraction  of plot number 2032  from plot number 205 and subsequent sale to the second defendant by the  first defendant is not valid and as such, the second  defendant  cannot be entitled  to mesne profits.

44) In a nutshell, my finding  is that the counterclaim by the second defendant  has no merits  and same must  fail. I am also satisfied  that the plaintiff has demonstrated that he  has a cause of action against the two defendants on a balance of probabilities.  In the circumstances, I will dismiss the second defendant’s counterclaim with costs to the  plaintiff . I will also proceed to enter judgement for the plaintiff and against the two defendants  jointly and severally in terms of prayers (i) and (ii)  of his plaint.  It is so ordered.

Signed, dated and delivered  at Makueni this 30th day of April, 2018

MBOGO C.G

JUDGE

In the presence of ;

Mr. Muthiani holding brief  for Mr. Makundi for the  1st  and 2nd  defendant.

Mr.  Mwangangi  holding brief  Mrs.Mutua  for the plaintiff.

Mr. Kwemboi Court Assistant.

MBOGO C.G, JUDGE

30/4/2018