Risper Atieno Ojwang v Margaret Ochola Otieno [2018] KEELC 124 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MIGORI

ELC CASE NO. 779  OF 2017

(FORMELY KISII ELC CASE NO. 490 OF 2013 CONSOLIDATED WITH KISII ELCC NO. 71 OF 2014 (O.S))

RISPER ATIENO OJWANG..................................PLAINTIFF

VERSUS

MARGARET OCHOLA OTIENO....................DEFENDANT

JUDGMENT

1. This judgment is in respect of two (2) consolidated suits; formerly Kisii ELC  case No. 490 of 2013 and Kisii ELC case No. 71 of 2014.  On 23rd July  2014, the court (Okongo J) directed and ordered herein thus:-

“This suit be and is hereby consolidated with Kisii HCCC No. 71 of  2014 (O.S.), Margret Achola Otieno =vs= Rispa Atieno Ojwang.  This suit shall be the lead file on which all further proceedings shall be taken.”

2. By a Pliant dated 16th December 2013 and filed on 17th December 2013,  the plaintiff namely Rispa Atieno Ojwang has sued the defendant,  Margaret Achola Otieno for the following reliefs:-

(i) Declaration that the Plaintiff is the registered and/or lawful    owner of LR NO. KAMAGAMBO / KABUORO/843

(ii) An Order of Eviction directed against the Defendant, her agents   and/or servants, from LR NO. KAMAGAMBO / KABUORO /   843

(iii) Permanent Injunction restraining the Defendant either by    herself, agents, servants and/or anyone claiming under the    Defendant from entering upon, re-entering, trespassing onto,   cultivating, building structures, interfering with and/or in any   other manner dealing with the suit land, that is LR NO. KAMAGAMBO / KABUORO / 843 and/or any portion thereof.

(iv) An Order directing and/or compelling the District Land    Register, Migori to remove and/or vacate the Caution and    Restriction, respectively entered and/or endorsed in the    Register of LR no. Kamagambo / Kabuoro/843, on the 20th    September 2001 and 26th August 2003.

(v) General Damages for trespass.

(vi) Interest on (v) hereof at Court rates.

(vii) Costs of this suit, together with interests thereon be borne by   the Defendant.

3. On the other hand, by an Originating Summons dated 20th February 2014  and filed on the even date, the defendant has sought orders :-

(1) That this Honourable Court do declare that the Applicant has acquired by ADVERSE POSSESSION    of the whole of land parcel No. KAMAGAMBO /KABUORO / 843 having been in uninterrupted occupation and / or possession of the said parcel    for over 12 years that is since the year 1958.

(2) That this Honourable Court be further pleased to order that the whole of land parcel No. KAMAGAMBO / KABUORO / 843 measuring 12. 6   ha be registered in the name of the Applicant .

(3) That the Court do issue an injunction restraining the Respondent from interfering with the Applicant’s quite, enjoyment and possession of land parcel No. KAMAGAMBO / KABUORO / 843   measuring 12. 6 hectares..

(4) Any other relief this Honourable Court may deem fit to grant in the circumstances.”

4. The gist of the plaintiff’s case is that the suit  land was initially registered  in the name of her son, Godfrey Omondi Otieno  who transferred the  same  to her (Plaintiff), who then obtained its registration on 5th  November, 1997. That the defendant lodged a caution to be restricted  on the title to the suit land on 20th September, 2001 and also caused a  rectification to be registered over the same title on 26th August 2003.    That subsequently, that the defendant trespassed unto a substantial  portion of  the suit land by entry, cultivation and erection of temporary  structures  thereon rendering the present suit necessary.

5. The defendant claims that she has been in uninterrupted occupation of the  whole of the suit land, LR NO. Kamagambo/Kabuoro/843 since 1958. That the  plaintiff unlawfully and fraudulently got registered as proprietor  of the suit  land when there was a pending suit.   She has sought dismissal  of the plaintiff’s suit with Costs.   That the plaintiff is guilty of non- disclosure as there existed similar suit namely Kisii HCCC No. 2313 of  1995.

6. On 23rd June 2015, the plaintiff (PW1) testified inter alia, that the suit land  was initially registered  in the name of her elder son,  Godfrey Omondi  Otieno  and that the defendant uses the land.  That she had purchased  the suit land from the late Lucas Otieno Odero, who was the defendant’s  husband in the absence of the defendant.  She produced PEexhibts 1 to 12  which include a copy of the register for the suit land and a copy of the defendant’s statement of defence and a draft copy of  Counterclaim and  judgment in Kisii HCC No. 2313 of 1995.

7. The suit was transferred to this Court on 19th July 2017.  Directions were  given on 15th March 2018, that the matter proceeds to further  hearing  on  18th  July 2018.  The  defendant (DW1) testified in part that her  late husband Lucas Otieno Odero left the suit land to her and that she has  lived on the land since 1958 when she got married to her deceased  husband.   She produced DE exhibits 1 to 3 which include Judgment in Kisii  HCC No. 2313 of 1995 (DEXH 2) and documents in Homabay SRM  Succession  Cause  No. 40 of 1994 (DEXH 3).

8. Learned counsel for the plaintiff file submissions dated 11/10/2018 and  urged the court  to enter judgment in the plaintiff’s favour and dismiss the  defendant’s statement of defence and the originating summons with costs. Counsel framed and analysed six (6) issues for determination among  them, whether the plaintiff is the registered proprietor of the suit land  and  whether the defendant  has among legitimate rights and interests over the  suit land.

9. Counsel further relied on authorities  which include Sections 24, 25 and 26 of the Land Registration Act  2012, Order 2 Rule 10 (2) o f the Civil Procedure Rules, 2010, Ocean View Plaza Ltd =vs= Attorney General (KLR (E & L) 1 at pages 475 - 478 and Abiero =vs= Thabiti  Finance Company (2001) KLR 496. Counsel submitted for an award of Kshs.  200,000/= on account of general damages for trespass in favour of the  plaintiff.

10. Learned Counsel for the defendant  filed submissions on 14th November  2018 and cited Sections 7, 17 and 38 of the Law of Limitations Act (Cap  22) in support of the defendant’s claim. Counsel submitted, inter alia,  that the plaintiff and her son have never occupied the suit land  hence they  owned the suit land by title only.  That the defendant’s evidence on the  originating summons is unchallenged, eloquent and consistent thus the  defendant’s claim should be allowed as sought in the Counterclaim.

11. I have reviewed with care the entire pleadings, evidence of PW1 and DWI  as well as submissions of counsel for the respective parties.  In the case of  Great Lakes Company (U) Ltd =vs= Kenya Revenue Authority (2009)KLR 720, the Court of Appeal held that issues for determination in a suit  generally flow from pleadings  oral framed by the parties for the court’s  determination.  I consider the plaintiff’s statement of agreed issues dated  15th February 2014, the defendants agreed issues dated 10th March 2014  and issues in the plaintiff submissions. Therefore, the issues for  determination in that instant suit, boil down to whether:-

(a) The plaintiff is the registered proprietor of the suit land.

(b) The defendant has legitimate rights over the suit land.

(c) The parties herein are entitled to reliefs sought in their respective   pleadings.

12. On the first issue, the plaintiff stated in her Plaint, and Replying Affidavit  sworn on 28th March, 2014 and Statement dated 16th February 2014 that  she is the registered proprietor of the suit land since 5th November, 1997.    In her testimony, PW1 stated, inter alia:-

“I am the owner of the parcel of land in dispute namely LR NO. Kamagambo /Kabuoro/843 (“the suit property”). The suit property is registered in my name.  The suit property was initially registered in the name of my elder son Godfrey Omondi Otieno”

13. By her originating summons and Statement of defence dated 13th February  2014, the defendant admitted that the plaintiff is the registered proprietor  of the suit land.  She stated that PW1 holds title to the land although she  termed the title false and urged the court to reverse it.

14. This court is mindful of the definition the term of “proprietor” under  Section 2 of Land Registration Act, 2012.  The suit land was registered  under the Registered Land Act Cap 300 (repealed Act) and I am mindful  of the rights of proprietor as provided  at Sections 27 and 28 of the  repealed Act. I also take into account  the rights and interest of proprietor  under Sections 24 and 25 of the Land Registration Act, 2012.  From  the  pleadings and evidence herein, it is common ground that PW1 is the  registered proprietor of the suit land.

15. As pertains the defendants’ rights over the suit land, PW1 testified that she  purchased the land from Lucas Otieno Odero (Deceased) who was the  defendant’s husband.  That the defendant is in cultivation of the Land  without her permission.   During cross - examination, PW1 maintained that   the defendant (DW1) is in occupation of the land.

16. DW1,stated that  she lives on the suit land since 1958 when her deceased  husband married her. That her son lives on the land.  PW1 also confirmed  that position when she stated that:-

“The defendant is cultivating the land.  Her son is also living on the land.”

17. It is common baseline that DW1 is in sole possession of the land. PW1  ceased possession of it in 1985.  In the  case of Titus Ong’ang’a Nyachieo =vs= Nyauma (2017) eKLR, the Court of Appeal held that possession  of land indispute can take different forms including fencing and  cultivation.

18. It was the testimony of PW1 that the suit land belongs to her.  That she  bought the land from the deceased husband of DW1 in 1960s.   She stated  that the land was initially registered in the name of her elder son, Godfrey  Omondi Otieno.

19. During cross - examination, PW1W stated  in a contradictory manner as  she testified that:-

“my son bought the land in 1991 because the defendant and her  husband were occupying the suit  property…. I have not done  anything  on the suit property since 1985…. The suit property was purchased by my husband Isaiah Otieno Ojwang.  It is Isaiah Ojwang who  purchased land from Lucas Odero… “ (Emphasis added)”.

20. During further cross examination, PW1 stated that neither her husband  who died in 1989 nor her son ever occupied the suit land.   That her  deceased husband never left her with the agreement of Sale regarding the  suit land.  She could not recall the purchase price of the land and that DW1  was and is still in occupation of the suit land.

21. It is evident that neither PW1 nor her son Godfrey Omondi Otieno has  ever occupied the suit land.   There is no evidence that they bought the  land from the deceased husband of DW1.  There is no dispute that the  said son of PW1 sued DW1 and enjoined PW1 as a party in Kisii High Court  Civil Case No. 2313 of 1985 (O.S) which was dismissed for want of  prosecution on 29/11/2013 as per Judgment (DExhibit 2).

22. It is further evident that neither PW1 nor her son purchased the suit land  as there was no agreement of Sale of the land from the deceased husband  of the defendant (DW1).   Therefore there is no iota of evidence to prove  even   any constructive trust as the alleged transaction is foundation less in  the circumstances herein;  see also  Mwangi and another =vs= Mwangi (1986) KLR 328.

23. Moreover, the purported  Sale is void for all purposes for  want of consent  as envisaged  under Section 6(1) of the Land  Control Act (Cap 302); see  Kariuki =vs= Kariuki (1983) KLR 227.  The plaintiff’s title deed (PEXH2 )  is suspect as  due process was not followed in obtaining it.

24. It follows that DW1 has been in open and notorious occupation and  possession of the suit land for a period in excess of twelve (12) years.  She  cultivates the land and her son lives thereon hence dispossessed the  plaintiff from the land.

24. In Gatimu Kinguru =vs= Muya Gathangi (1976 -80)KLR 317, Madan J (as  he the was) held inter alia:-

“The defendant’s possession was open and notorious….There has been discontinuation of he possession by the defendant since 1959…. There was ouster of the plaintiff from the land followed by adverse possession, occupation, development and cultivation of the land by the defendant…. (Emphasis laid).

26. In view of the foregoing analysis, I find that the plaintiff has not proved  his claim against the defendant on a balance of probability. On the other  hand, the defendant has proved her counter claim against the plaintiff on  a balance of probability.

27. Afortion, the consolidated suits are determined as follows:-

a) The plaintiff’s suit by way of a Plaint dated 16th December, 2013 be   and is hereby dismissed with costs.

b) Judgment be and is hereby entered for the defendant, Margret Achola Otieno against the plaintiff, Rispa Atieno Ojwang in terms of Orders 1, 2, and 3 as sought in her Originating Summons dated 20th February 2014 with costs.

DELIVERED, SIGNED and DATEDin open court at MIGORI this11thday of December, 2018

G. M. A. ONGONDO

JUDGE

In the presence of;

MS W. Ochwal learned counsel for the plaintiff.

Mr. G. S. Okoth holding brief for G. J. M Masese learned counsel for the defendant.

Tom,  Court Assistant.