Rodgers Joab Wafula v John Dindi Ndubi, Patrick Okemo, Charles Makokha & Mourice Odunga [2013] KEHC 2569 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

HIGH COURT C C. NO. 94 OF 2011.

RODGERS JOAB WAFULA…………....…………………..PLAINTIFF.

-VERSUS-

JOHN DINDI NDUBI   )

PATRICK  OKEMO     )………………………………….DEFENDANTS.

CHARLES  MAKOKHA)

MOURICE ODUNGA  )

J U D G M E N T.

The Plaintiff, RODGERS JOAB WAFULA  filed this case against JOHN DINDI NDUBI, PATRICK OKEMO, CHARLES MAKOKHA and MOURICE  ODUNGA, hereinafter  referred  to as 1st to 4th Defendants respectively, through  the plaint dated 20th December, 2011  and filed in court  on 21st  December, 2011.

The plaintiff prays for;

Permanent injunction against Defendants  from entering  and or utilizing  his land BUKHAYO/BUYOFU/1151 unless  with his authority.

Order stopping Mumias sugar company not to pay the proceeds of the sugarcane  on that land  to Defendants .

Mesne profits.

Costs of the suit.

Interests on (a), (b) and (c) at courts rates.

Any other relief the court finds fit.

The plaintiff avers that he got registered as the absolute owner of Bukahayo/Buyofu/1151 in 1987.  That  about year 2005,  the Defendants  forcefully  encroached into the land thereby barring him from the use and enjoyment of the land and hence  this suit.

The plaintiff  claim was disputed by the defendants who filed their statements of defence.  The 1st and 3rd defendants filed their separate statements of defence dated 5th January, 2012 on 6th January, 2012.  Each  averred that they have distinct  parcels  of land and denied encroaching  onto the plaintiff’s  land. The 2nd and 4th defendant filed  a joint statement of defence dated 11th June, 2012 on the same date. They aver that they reside on parcel Bukhayo/Buyofu/1150,  which belongs to their late father and in respect  of which 2nd defendant  has filed Busia H.C. P&A No. 98 of 1999. They denied encroaching on parcel Bukhayo/Buyofu/1151.

In support  of his case the plaintiff testified as PW 1.  He explained  how the Defendant’s father sold to him a piece of land in 1982 and was registered  as Bukhayo/Buyofu/1151.  He took possession of the land and entered into a contract with Mumias sugar  company who provided the farms materials totaling Kshs.24,274. 81 as shown  in the statement marked  JRW 2 in the names of Janet  Nafula Othiambo.  The Defendants  then cut tress from the land and he called  the Forest Officer who assessed the damage at Kshs.17,166/= under the report dated 28th September, 2009 and marked  RJW3. Plaintiff then took the matter to the village elder for arbitration but defendants declined. The village elder did a letter to OCS dated  22nd August, 2006 which is marked RJW4.  Plaintiff said,  earlier in 2005  the Defendants had attacked  him on the land and robbed him of Kshs.30,000/, mobile phone, watch and tore his clothes.  They also   injured him.  He had  reported to the police and 2nd and 3rd Defendants and two others arrested and charged.  As a consequence several charges in different cases  were fabricated against him.

Plaintiff said he then filed a boundary dispute before the Land Registrar  against Defendants who owned Bukhayo/Buyofu/1150  and a ruling dated 13th July, 2006  recommending a resurvey to enable the plaintiff occupy  his portion was made as per the copy marked RJW13. The plaintiff  relied on the written submissions and annextures he had filed and prays for permanent injunction and an order  that payment due for produce from the said  land with Mumuas sugar company be paid to him.  He also prays for mense profits, costs and interests.

Answering questions from 1st defendant, the plaintiff  indicated that the 1st defendant  has planted sugarcane on the land in question under A/C.No.31064 with Mumias sugar company.  He said the 1st Defendant  and his father and the other three Defendants participated in stopping him access the land. He added that 1st Defendant is a grandson to the man who sold him the land.

Answering questions from 2nd Defendant, the plaintiff said the 2nd defendant is the administrator of parcel Bukhayo/Buyofu/1150 and is also the one who led his brothers to stop plaintiff from planting on the land even though he had prepared it. He added that he could not tell whether 2nd defendant was using the land in question as he had no access to it.

Answering questions from 3rd Defendant, the plaintiff said he also owns Bukhayo/Buyofu/1009 which neighbours 1151.

Answering  questions from the court, the plaintiff disclosed that the Defendants father died about 2003 and in year 2005, Defendants stopped in him from using the land.

In their defence the Defendants testified as DW1 to DW 4  respectively.

DW 1 said his father is the elder brother to 2nd, 3rd and 4th Defendants.  He  said his grandfather  had given his father land parcel  Bukhayo/Buyofu/603.  Later his father bought 3 acres out of Bukhayo/Buyofu/1150 from his father in 1977.  In 1981 his grandfather sold a portion of his land to PW 1(Plaintiff), who took possession and started planting  sugarcane under account No.31063. He  said in 1987 his father  authorized  him to use the land he had bought from his grandfather and he planted sugarcane.  Later, when  plaintiff  brought surveyors to confirm the boundaries of his land, they found it covered the portion his father (Samuel)  had bought.  He said  he has planted sugarcane under A/C.No.31064 on the land  his father showed  him, and that plaintiff’s  land is within Bukhayo/Buyofu/1150.  He said the person farming on the portion of land which should belong to plaintiff  is the 2nd Defendant.  He added that  when the Land Registrar  and surveyor visited the land, they had advised them  that they excise a portion from parcel Bukhayo/Buyof/1150  to exchange  with that of plaintiff, Bukhayo/Buyofu/1151, but could not do so as they found  some people claiming purchasers interest had filed cautions against parcel Bukhayo/Buyofu/1150.  Answering  questions 1st defendant said he was born in 1963 and therefore was about 13 years old when his father bought land from his grandfather in 1977.  He  added that he had planted sugarcane on four acres of parcel Bukhayo/Buyofu/603 as advised by his father.  He  conceded he did not know the boundaries  of parcel Bukhayo/Buyofu/1151 when he took the portion given by his father and  planted sugarcane.  He  conceded that he has sugarcane on parcel Bukhayo/Buyofu/1151. He  said he got to know plaintiff has title  documents to parcel Bukhayo/Buyofu/1151 when he was served with the court papers which included  as search  certificate for the parcel.

The 2nd defendant  said he is the administrator  of his father’s estate. That  his father Philip Wekesa died in 1992 and he  filed the Succession Cause  in 1998.  He said when  his father was alive, he was seeing plaintiff cultivating on a portion of his father’s land,  planting sugarcane and had  been extending  the portion under his use. After the death of his father, 2nd Defendant  said  he moved his homestead near the portion plaintiff was using.  He  added that when in year 2005 plaintiff brought surveyor and Land Registrar to point out the boundaries of his land Bukhayo/Buyofu/1151, they placed it  on the portion his brother Samuel had planted sugarcane.  He said  the place plaintiff  land should have been was then a virgin land and  he (2nd defendant)  has been cultivating it.  Answering  questions  2nd defendant confirmed  that other than the parcel plaintiff had bought, there was also  another portion he had leased from his (2nd defendant’s)father.  He  said after the death  of his father he moved his house to a portion  of Bukhayo/Buyofu/1150 next to parcel Bukhayo/Buyofu/1151 and not  inside it. He denied  that they took over plaintiff land which was ready for planting.  He  denied stopping plaintiff from accessing his land.

Answering questions from the court, 2nd Defendant disclosed that his father’s land was initially parcel Bukhayo/Buyofu/1008 which  was later subdivided into parcel 1150, 1151, 1152 and 1153.  He said his father retained parcel 1150 in his names and transferred parcel `1151 to plaintiff and the other two  parcels  to other persons.  He said  he does  not know the extent of parcel 1151 except  on the point it borders parcel 1150. He said  they got to know that the portion comprising of parcel 1151 was where his elder brother Samuel had planted sugarcane in 2010 when they were advised  to give plaintiff another portion from parcel 1150. They however  could not do so as they found two  persons claiming to have bought portions of the land parcel 1150 from 4th defendant and Leonard Wafula had lodged cautions.  He said he does not use any portion of Land Bukhayo/Buyofu/1151.

The 3rd Defendant testified how his father gave a portion of land to his brother called Samuel.  He then sold another portion of land to the same brother Samuel and he was a witness to the agreement.  Later he saw plaintiff working on the portion that had been sold to Samuel and when he asked his father, he told him he had sold that portion to plaintiff.  He said in 1986 his father wanted to refund the money plaintiff had paid for the portion and asked him (3rd defendant) for it but he declined to give him the money. In 1992, his father died and plaintiff was still using the portion of land and continued using it.  In 2005 there was a disagreement over the boundaries of their land Bukhayo/Buyofu/1150 and that of  plaintiff parcel 1009 resulting to a fight between him, DW 2 and plaintiff. Plaintiff  then had DW 1, 3rd defendant plus his wife and daughter arrested and charged. Then  a dispute arose over the boundaries of parcel Bukhayo/Buyofu/1150 and 1151 and when surveyor and Land Registrar came they discovered it was at a different portion from the one plaintiff had been using. They opened a road to serve  parcel 1151 and started discussions on how to give plaintiff a portion from parcel 1150 in exchange  for parcel 1151. They later discovered  some persons  claiming purchasers interest had placed cautions on parcel 1150  and plaintiff had charged  parcel 1151 with Standard  Bank. He  said parcel 1151  is used by his brother Samuel.  He  requested the court to give him a  month to seek an out  of court settlement before  judgment.  Answering questions 3rd defendant said after he failed to give his father  the money he wanted to refund to plaintiff, the  plaintiff ended up getting the land.  He added  that he does not know why Samuel never got the title document for the  land he bought from  his father.

The 4th defendant  said he knows Samuel was given a portion of land by his father and also bought another portion but never followed to have them surveyed  and title document  issued.  He added that he knew plaintiff also bought land from his (4th defendant’s)  father and had it surveyed and title document  issued.  Later  plaintiff discovered the portion he had been using was in parcel 1150 and he  stopped using it.  He  said plaintiff wanted to move to his parcel 1151 which was being used by Samuel  father to  1st Defendant.  Plaintiff brought the surveyor and Land Registrar and they were shown the boundaries of parcel 1151.  4th Defendant said they discussed as a family and decided that they give the plaintiff a portion in parcel 1150 in exchange with parcel 1151 and tasked Samuel and 2nd defendant to make a follow-up. The two later reported that they had found cautions had been filed on parcel 1150. He said he does not use parcel 1151 and proposed parcel 1151 be exchanged with a portion in parcel 1150.  Answering questions 4th Defendant said the portion plaintiff had been using is currently used by 2nd defendant.  He agreed that the lease  agreement  plaintiff had with  his father was for parcel 1151.  He added that plaintiff had also demanded costs he had incurred so as to agree to exchange parcel 1151 which was in his names with a portion from parcel 1150.  He admitted receiving Kshs.80,000/= from  one Johnson who is one of the people who have filed a caution over parcel 1150.  He added he has so for refunded to Johnson Kshs.60,000/= leaving  a balance  of Kshs.20,000/=.

After the parties  closed their cases on 28th May, 2012 the court gave  them until 27th June, 2013  to seek  the possibility of an out of court settlement as requested by 1st and 3rd defendant.  However  on 27th June, 2013, the report received from the parties showed there were no possibilities of a fast out  of court settlement and the court placed the case for judgment.

The issues for determination in this suit are as follows;

Does  the plaintiff own  parcel Bukhayo/Buyofu/1151.

Have the Defendants stopped the plaintiff access and use  to the said land?

If answer  to (i) and (ii)  above is in the affirmative, is the plaintiff entitled to  an order  of permanent  injunction

Is plaintiff entitled  to mense  profits and if so  how much.

Who gets the costs.

I have carefully considered  the evidence  adduced  by the parties  herein  and they all agree on the following;

That Defendant’s father called, Philip Nekesa, sold Land Parcel Bukhayo/Buyofu/1151 to the plaintiff.

That the plaintiff became registered with the said land on 7th December, 1987 when Philip Nekesa was still alive.

That Philip Nekesa died in 1992 and 2nd Defendant filed a Succession Cause and was appointed the administrator of  Philip Nekesa’s estate comprising of Bukhayo/Buyofu/1150 in 1998.

That the plaintiff had taken possession of the land he had bought from defendants father, upon purchase, and continued using it until 2005, when some disagreement on its boundaries and position in relation to parcel 1150 arose.

That since  2005 the parcel of land comprising  Bukhayo/Buyofu/1151 is being used by the family of Samuel  Ndubi  who is the first born son of Philip Nekesa, but specifically by 1st Defendant who has planted sugarcane  under A.C.No.31064 with Mumias sugar company.

That the disagreements between plaintiff and Defendants resulted to 2nd and 3rd Defendants being charged with a Criminal Case under Busia PM.Cr. C. No.1721 of 2005 and that plaintiff  ceased using the portion  of land he had been using in Bukhayo/Buyofu/1150.

That the surveyor  and Land Registrar  confirmed that the land plaintiff  owned parcel Bukhayo/Buyofu/1151  was not on the portion he had been farming but on the portion 1st Defendant has planted  sugarcane  under A/C.No.31064 with Mumias sugar company.

The above  therefore answers  the first issue  that indeed land parcel Bukhayo/Buyofu/1151 belongs to the plaintiff and the ownership is confirmed by the certificate  of official search marked RJW1.

The disagreements of 2005, culminating with some of the Defendants and their family  members being arrested and charged in Busia  PM. Cr. Case No. 1721 of 2005  and the action of 1st Defendant  taking  over  land parcel Bukhayo/Buyofu/1151 and planting sugarcane  coupled with the action of 2nd Defendant taking over the portion plaintiff had been using  in parcel Bukhayo/Buyofu/150, clearly locked the plaintiff out of accessing his land.  It is  however not possible  to confirm  that the materials in the statement marked RJW 2 in the names  of Janet  Nafula  Othiambo, were meant to be used by plaintiff in  land parcel Bukhayo/Buyofu/1151  as he alleged. This is because the statement is not in his names and does not contain the land reference Bukhayo/Buyofu/1151. The plaintiff did not also disclose how he is related to the said Janet Nafula Othiambo and the materials may have been meant for use on some other land.  The above  however shows the plaintiff was stopped from accessing his land by actions of the Defendants who stood to  benefit  by locking him out of his land and using  it instead.

This brings the court to the third issue on whether the plaintiff is entitled  to permanent  injunction order  against Defendants. The  Court of Appeal in the case of Dr. Joseph  N.K. Arap Ngok –vs- Justice Moiyo Ole Keiwa and 4 others, Civil  Application No. 60 of 1997  the court  stated;

‘’Title  to landed  property normally comes into existence  after issuance of a letter of allotment, meeting the conditions stated  in such a letter and actual issuance thereafter of title document pursuant to provisions held.’’

Even  though  the defendants claim  their father had sold the portion now comprising  of  the subject matter of this suit to Samuel  Ndubi, the father  of 1st Defendant, the person with  the title document over that land is the plaintiff.  He got the title documents in 1987 when the defendants father was still alive.  Nobody has ever challenged that title  in accordance  with the law.  When  2nd defendant  filed Succession Cause for  their father’s estate he did not include that land as part of the estate. The 3rd Defendant  confirmed  that his father pointed out that portion to be  the one he was selling to plaintiff even though he had previously allegedly sold it to Samuel Ndubi . From this testimony of 3rd defendant, it would  appear  their father had sold the  same portion of land to his son, Samuel Ndubi, and  plainfiff.  The Court of Appeal  in the case cited above, had held that in cases of double  allotment, a party  who has been issued a  title take precedence over all other alleged equitable rights to the title.  None of the Defendants claimed that any other person including Samuel Ndubi, had obtained title documents for the suit land.  The plaintiff  is the only one with title to the suit land and under Section 27 (a)  and 28  of the Registered land Act Cap 300 of Laws of Kenya, now repealed  under section 109 of Land Registration Act No. 3  of 2012, were in the same terms with sections 24 (a) and 25 (1)  of the  Land  Registration  Act No. 3 of 2012. It stated as follows;

‘’   27. Subject  to this Act.

the  registration of  a person as  the proprietor of land shall  rest in that person absolute ownership of the land together with all rights and privileges  belonging or appurtenant  thereto;

…………’’

‘’ 28.  The rights  of a proprietor  whether  acquired  on first registration  or whether  acquired subsequently for                                valuable consideration or by an order  of court  shall not be  liable to be defeated  except  as provided in  this Act,  and shall be held by the proprietor, together  with all privileges  and appurtenances  belonging  thereto, free from all other   interests and claims whatsoever, but  subject-

(a)………………..

(b)………………..

Provided  that nothing in this section  shall be taken to relieve a proprietor from any duty or obligation to which  he is subject as a trustee.’’

There is no evidence adduced herein to suggest that the plaintiff  registration with the said land  was as a trustee for the defendants. The Defendants appear to have known that, as they disclosed that they had resolved  to ask plaintiff to relinquish the suit land in exchange for another parcel  to be excised from land parcel Bukhayo/Buyofu/1150.  The plaintiff appear to have agreed but had asked to be paid some  undisclosed  costs. This arrangement  flopped after the Defendants  discovered that their land  had been cautioned by some two persons, claiming purchasers rights.  Had this arrangement  been carried out, this case would most likely never  have been brought to court. After the parties closed their cases the court gave them one month to see whether they could conclude the arrangement but ones again they were faced with the same predicament.

The upshot of the foregoing is that the Defendants  have no business stopping the plaintiff from taking possession of his land Bukhayo/Buyofu/1151. The plaintiff  has therefore established on a balance of probabilities that an order of permanent injunction should  be issued in his favour against Defendants, their servants, and agents.

Prayer (b)  in the plaint appear misplaced. This is because  the plaintiff does not indicate in the pleading who would be the beneficiary of the proceeds of the sugarcane  if the court  was to order Mumias sugar company  not to release  it to the Defendants.  Plaintiff  tried to remedy this when he testified, by asking the court to  make an order that the payment be released to him.  Parties  are restricted to prayers contained in their pleadings and as the plaintiff had not amended his pleadings to contain or accommodate  what he said in his testimony,  prayer (b)  cannot be granted.

Prayer (c) is indicated to be  ‘’Manse profits.’’.The  court take this to have been meant  to refer to mesne profits. The evidence  adduced shows as of the year 2010  parties  were discussing how to resolve the issue.  It appears that it was after plaintiff  realized Defendants  were unable to actualize their offer to give him an alternative parcel  from Bukhayo/Buyofu/1150 in exchange   for his land Bukhayo/Buyofu/1151  that  he filed this suit in year 2011. There  is nothing to show that he had  taken legal steps to retake possession of his land before  filing his suit.  The quantum of mesne profits claimed was not disclosed nor was evidence adduced to establish the amount. As such mesne profits is not granted.

Obviously as costs follows the events, and plaintiff has succeeded in the main prayer of his suit, he  will get costs.

The plaintiff has as shown above, established his case on a balance  of probabilities and  judgment  is entered in his favour against Defendants jointly and severally as follows;

That the  Defendants  specifically the 1st Defendant, are  hereby ordered  to vacate  from Land parcel Bukhayo/Buyofu/1151 and give  possession  of the said land to the plaintiff within 30 days from the date hereof.

That  an order of permanent  injunction is hereby issued  against the Defendants, their  servants and agents from entering, occupying  or in any way using   plaintiff’s  land parcel Bukhayo/Buyofu/1151 without  his authority and or consent.

That the Defendants  will pay costs of this suit to the plaintiff

It is so ordered.

S. M. KIBUNJA,

JUDGE.

Delivered on 24th day of July, 2013.