Shem Sanya Balongo & William Mireri v Municipal Council of Busia & Alice Ikolomi Thuranira [2015] KEHC 4305 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL APPEAL NO. 55 OF 2010.

1.  SHEM  SANYA  BALONGO

2.  WILLIAM  MIRERI……………………………………………APPELLANTS/APPLI CANTS.

=VERSUS=

1.  MUNICIPAL COUNCIL  OF BUSIA.

2.  ALICE IKOLOMI THURANIRA…………………………………………… RESPONDENTS.

R U L I N G.

This ruling relates to the Notice of Motion  dated 19th  July, 2013  in which the 1st Appellant  seeks to be allowed to adduce additional evidence  limited to the physical  position of the suit property, Busia Municipality plot No. 311, on the ground. The 1st Appellant relies on eight grounds set out on the  application and his supporting  affidavit sworn on 19th July, 2013. The 1st Appellant  also filed  a supplementary affidavit sworn on 9th February, 2015 to which he  annexed  evidence  affidavits  of Jonathan  Wabala  and Nathan  L.C.  Ayodi sworn on 8th August, 2013  and 28th March, 2014  respectively.

The 1st Respondent  opposed  the application and filed the grounds of objection dated  6th February, 2015.  There  is no replying affidavit  or grounds of opposition filed by the 2nd Respondent.

The application  came up for mention severally and on 26th February, 2015, Mr. Jumba, Mr. Makokha and Mr. Ipapu  advocates  for  Appellants 1st and 2nd Respondents  respectively agreed to proceed with the application through written submission.  The Appellants  filed their written submissions dated 9th April, 2015 while  the 1st Respondent filed theirs dated 7th May, 2015. The 2nd Respondent filed her submissions dated 14th May, 2015 and on the   same day, the  Appellants filed  a reply  to the 1st Respondent’s submissions.

The Notice of Motion dated 19th July, 2013 is indicated to be brought ‘’under Order 40 Rule 1 and section 3A  of the Civil Procedure Rules and Act 2010. ’’ The provisions of Order 40 Rule 1 of  the Civil Procedure  Rules deals with instances where  temporary injunctions may be issued  while section 3A restates the inherent powers of the court to prevent abuse of the process of the court and the issuance of  orders necessary for the ends of justice.  The prayers set out in the  Notice of Motion dated 19th July, 2013  are as follows:

‘’ a) The appellants be allowed to adduce additional evidence limited to the physical position  of the suit plot on the   ground.

b) That  DW 1 do point out  to this court  physical position  of plot Nos. 527and 311 which he alleges exist on ground  separately and adjacent to each other with a road in  between.

c) That record of this appeal be served upon the   Commissioner of Land.

d) The directions be given with regard to production of the    evidence.

e) Costs  of this application be in the cause.’’

It is  clear from  the outset that none of the prayers  in the application is for injunctive  orders and as such Order  40 Rule  1 of the Civil Procedure  Rules has no relevance to the application. The correct  provision in view of prayers (a), (b)  and (d)  is Order 42  Rule 27 of the Civil Procedure Rules  which states as follows:

‘’  27         (1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but if-

the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or

the court to which the appeal  is preferred  requires any document to be produced or any witness to be examined  to enable it to pronounce judgment, or for other substantial  cause.

the court to which the appeal is preferred may allow  such evidence or document to be produced, or witness to be examined.

(2)     Wherever additional evidence is allowed to be  produced by the court to which the appeal is  preferred the court shall  record the reason for its admission. ‘’

Prayer  C is not covered under the  provision of the said  order. The prayer  seeks to      have the record of appeal filed herein be served  on the Commissioner of Land. The   Commissioner  of Land  was not a party in the Lower court  proceedings subject matter of this appeal, and has not applied  to be enjoined  as an Interested Party. That prayer appear  to have been overshadowed  by the other prayers as  counsel   did not submit on it in their submissions.  The prayer is therefore misplaced and  cannot be of any value to this appeal even if it were to be granted.

The main  issues for determination  are as follows;

Whether the Appellants had been refused by the trial court to adduce or the trial court had refused to admit the evidence they seek to adduce at this stage.

Whether the evidence the Appellants seeks to be adduced at this stage is required by the court before pronouncing itself on the appeal.

The court  has carefully  considered the grounds  on the application, grounds of objection, supporting  and supplementary affidavits  with their annextures and the written submissions filed herein and come to the following findings:

That going by the parties pleadings  in the Lower court,  specifically  the amended  plaint dated 22nd May, 2009 by the Appellants and statement  of defence filed  by the 1st and 2nd Respondents dated 11th June, 2009 and 29th May, 2009 respectively, the  Appellants claim was for;

Declaratory orders over Busia Municipality/527.

Cancellation of the 2nd Respondent and registration of the 1st Appellant with Busia Municipality/527.

Order directing the 1st Respondent to facilitate the issuance of the lease to the 2nd Appellant.

Costs.

To understand the issues  and the nature of evidence  expected in the lower court proceedings, it is important to reproduce  the paragraphs  of the amended  plaint that this court finds  relevant.  They are as follows;

‘’  4A.   By an  allotment  letter dated 29th April, 1991 the Government  of Kenya acting through  the  Commissioner  of Lands on behalf  of Busia County Council allotted to the 2nd Plaintiff  herein, all that parcel ofland commonly  then known as UNS. PLOT No. 25 – Busia Township and subsequently  after survey, demarcation and erection  of beacons, the  same plot was subsequently  registered  and is  currently known asBusia Municipality 527.

4B.    In or about the year  1995, the second Plaintiff on a mutual agreement,  decided to transfer  his entire legal proprietary  and beneficial interest in the said plot to the  first Plaintiff for valuable consideration  awaiting the issuance of a formal lease certificate.

6B.    Despite the full knowledge of the 1st Plaintiff’s interest in  the plot, the 1st Defendant  in clear cut schemes  amounting  to dereliction  of duty did not liase with the physical planners and surveyors to clearly  mark out  the beacons of the said plot and hence there was persistent encroachment and obstruction on the said plot hence the constant reference thereto as plot No. 311.

7B.    Subsequently and upon institution of this suit, it has  dawned on the Plaintiffs to their utter shock and    surprise, that the 2nd Defendant is the purported registered  lessee of the said plot without the  knowledge, consent and /or  authority to the Plaintiffs herein, hence  this suit.’’

The initial plaint dated 23rd March, 2009 was by the 1st Appellant as the only Plaintiff, and the two Respondents as the 1st and 3rd Defendants respectively.  The  prayer  in that plaint  was for mandatory  injunction in respect to ‘’Plot No. 527 Busia Municipality(un surveyed plot No. 311).’’  In their  filed statement  of defence  dated  11th June, 2009 to the amended  plaint, the 1st Respondent  among  others averred in paragraph  4, 5, 11, 13 and 14 as follows:

‘’        4.    The 1st Defendant is a stranger to the allotment    (of) plot  No. 25 as  alleged under paragraph 4A of the  plaint.

5.     The 1st defendant denies and is a stranger to the  contents of  paragraph 5A, 6A, 6B and 6C of the plaint  and shall require  of the  Plaintiff the strictest (sic)  proof:

11.    The 1st defendant avers that the 1st Plaintiff suit is without  basis as the 2nd Plaintiff had no good title to pass to the 1st Plaintiff in the purported sale.

13.    The 1st Defendant further  admits having  allotted  the suit  plot  to the 2nd  defendant but  avers further that this was within its legal  mandate  and denies that any fraudulent scheme informed  the allotment  as alleged.

14.    The 1st  Defendant  avers that other (sic) allotting  the plot to the 2nd Defendant  for purposes  of developments,  it is  not the authority  that issued the lease certificate and is  therefore a stranger to the allegations that  the lease certificate  was fraudulent (sic) obtained.’’

The 2nd Respondent had in her amended defence dated 29th May, 2009 at paragraph 3A and 4A averred as follows;

‘’ 3A. The 2nd Defendant in reply to paragraph 4A – 5A of the amended plaint  contends that though  the 2nd Plaintiff  was allotted UNS. PLOT. NO. 25 currently known as registered plot No. 527 Busia Municipality, the said allotment, transfer and Notice to 1st Defendant abated for non-  observance and compliance  of the appurtenant conditions  of the  allotment stipulated.

4A  The 2nd Defendant denies the averments set out in the   paragraph  6A – 8F of the  amended plaint and the Plaintiff  shall be invited to strict proof.’’

From the contents of the paragraph of the pleadings reproduced hereinabove, it is clear that parties needed to call evidence to show the relationship and connection between the plot or plots described  as unsurveyed  plot No. 1, 25, 311 and the plot known as Busia Municipality/527 which is registered  in the names of the 2nd  Respondent, and which  is the  subject  matter of the proceedings.  The evidence  that goes  towards  establishing the physical  position  of the plot in question would be among that expected  to be adduced  in view  of the pleadings filed by the parties.

That during  the hearing in the Lower court, the 1st Appellant  testified  as PW 2. He produced a letter of allotment for a plot, described as ‘’UNS. COMMERCIAL  PLOT 25, BUSIA, which  he had been given by William  Peter Mireri, the 2nd Appellant and the initial  allottee,  among other documents. The  allotment  letter is dated 29th April, 1991.  The record of the proceedings before the Lower court shows that the Appellants were aware  that by the time they entered into the sale agreement, the plot was unsurveyed.  Part of the 1st Appellant evidence  in the Lower court reads as follows:

‘’  I had  been severally  told that  the plans  of plots keep changing from time to time and this was the case with un surveyed plots.  The dominant factor is the physical location of the plot. The plot is   registered as plot No.527, Busia Municipality which  presupposes, that pursuant to Alice’s entry to  the plot, a survey was done and Alice registered as owner.

…………….I did visit the land registry  Busia  where l  obtained  a certified copy of the lease which was purportedly issued  and certified  by Commissioner of Lands.’’

During cross-examination, the 1st Appellant stated as follows after being referred to exhibit 1;

‘’   The document (letter of allotment issued to 2nd  Appellant ) was  issued by the Commissioner of   Lands.’’

The witness was then referred to the certified copy of the lease issued to the 2nd  Respondent  and produced  as exhibit  14 and stated;

‘’The lease  was issued  through authority  of Commissioner of Lands.  The lease was signed  by  the office of the Commissioner.  I  have not sued the Commissioner of Lands.  I bought the land  on the  strength  of letter of allotment.’’

The court  also notes  that when Stephen  Peter  Omoding (DW 1)  testified  in the Lower  Court  he  produced a letter of allotment in favour of the 2nd Appellant for UNS. Plot  No. 1 Busia  Municipality.  The witness among others stated as follows:

‘’     I know one William Peter Mureri.  He had been  allocated plot No. 1 with a letter of allotment dated   18th February, 1994……………the plot was unsurveyed one.  After survey  is done, the previous number ceases to exist . There  can be more  than one plot referred to as plot  one depending on  the zone where the land is situate………..DEXL 6 referto plot No. 25 which refers to the same plot  No. 1. The plot was later surveyed and it became  plot No. 311.  Plot numbers are given  by people  from    physical planning department in conjunction with Lands office department…………………this  is a letter  of allotment in January (sic) Alice Ikolomi Thuranira.She  was being  allotted plot No. 1 which  was  unsurveyed………..plot No. 1  allotted  to this Alice Ikolomi Thuranira  was  allotted plot No. 1 but in a  different zone. Alice  Thuranira was later given a                         lease……………………….

According  to the records, there exists two different plots which initially bore plot No. 1……………….The lease was issued  to Alice Thuranira and the plot number is plot No. 527………We know where plot 527 is physically.  I have pointed where plot 527is using black ink. There is a road between plot No. 311 and  527……..plot  No. 25  is not the one which became  plot  No.527.  The Plaintiff has not taken a lease on                       plot No. 311 which is still there.’’

The witness was cross-examined during which he stated as follows:

‘’    I came  to testify on plot  numbers 311 and 527    ………..Plot 311 was allocated  to Shem Sanye Balongo but no lease  has been  issued as Mr .    Balongo  has not paid  rates………………It is not true  that plot numbers 1, 25, 311 are one and the same as plot No.527. ’’

The foregoing  excerpts from the testimonies of 1st Appellant and DW1 clearly shows  that the parties  adduced evidence on the relationship between  the plots described as numbers  1, 25, 311 and 527  and their positions. The proceedings in the lower court took place before the Civil Procedure Rules of 2010 came into force. The legal regime that existed then did not demand   disclosure of all the evidence at the stage of filing the pleadings unlike the situation today.  It was therefore  upon the Appellants to   have made sure they had presented before the trial court all the evidence in their possession to assist  the court make a finding  in their favour  on whether  or not the unsurveyed  plots described  in the  various documents as plot 1, 25 and 311 were the  same as plot 527.  They also had a duty to show that the physical    position of the plot registered as Busia Municipality 527 was on the same    sport as the plot described as numbers 1, 25 and 311.   There is nothing to suggest that the trial court  declined  to receive  or admit any such   evidence from the Appellants.

That having  considered  the contents  of the affidavit  sworn  by Jonathan Wabala and Nathan  L.C. Ayodi on 8th August, 2013  and 28th March, 2014  respectively and annexed  to the supplementary affidavit of the 1st Appellant sworn on 9th February, 2015, and  the trial  Magistrate’s judgment  of 28th September, 2010 in respect  of which the court  will not say much  on now as the appeal  is yet to be conversed, the court finds that the Appellants have failed to establish  any of the grounds set out in Order 42 Rule 27 (1) (a) and (b) of the Civil Procedure  Rules. There is  nothing to suggest that the trial court had declined to accept the evidence contained in the two affidavits  of the  proposed  witnesses or that the trial  court had declined to allow the Appellants to adduce that evidence.  [see Wanje –vs- Saikwa (1984) KLR 275].  In any case the court further finds that even if the evidence contained  in the two affidavits were adduced  before  the trial court, it was not likely to have made the trial  court come to a different decision as neither  of the two deponents  said they know the position of the beacons marking the plot registered as Busia Municipality 527. The evidence  of the two deponents  would have been unlikely to sway the trial Magistrates finding that Busia Municipality/527  is different  from plot 311 when he held  as follows;

‘’     There is no doubt that the 2nd Plaintiff was   allocated plot No. 25 unsurveyed on 29th April,  1991. There is also no doubt that he sold his  interest in the allotment letter to the 1st Plaintiff on 4th July, 1995. There is evidence that the  same allotment was on 18th February, 1994  cancelled and instead  the 2nd Plaintiff was  allocated  unsureyed  Commercial plot No. 1  Busia.  This is clear  from the foot of the letter of allotment issued on 18th February, 1994 which was produced as D.EXH. 2 by (DW 1) Stephen Omoding.  The Plaintiffs counsel neither cross- examined the defene  witness on this allotment letter nor doubted its authencity.  It is therefore clear that plots No. 1 Plot No. 25 and plot No. 311 are not one and the same plot.  There  was  evidence  from DW 1  which was not challenged  that there can be so many plots described as plot No. 1 but when it come to physical location,  the numbers and their location is only determined  from a document from the physical  planning department described as FR which  shows the physical  location of each plot. There  was evidence from  DW 1 that there exists plot No. 311 which is separate from plot No. 527 as per DEXH. 14.  If  indeed  plot No. 1 was the same as plot No. 25 which gave rise to plot No.  527, there would have been no need for the Commissioner of Lands    allotting  the 2nd  Plaintiff Plot No. unsurveyed commercial  No. 1 and cancelling allotment on plot No. 25.

There is evidence that the 1st Plaintiff was all  along communicating on the basis of plot No. 311.  Plot No. 311 is independent from plot 527.  Plot 311 according to the evidence  of DW 1 is                            still existing and is district from plot No. 527. ’’

The nature of the evidence that the Appellants seek to be allowed to introduce at the this stage do not appear to be additional to that which was adduced during  the hearing in the Lower court. The evidence appears aimed to contradict what DW 1 said in his evidence.  This would effectively result to a rehearing  of the case.  This was not the intention of the provision of Order 42 Rule 27  of the Civil Procedure  Rules. (See Florence Akinyi  Odula –vs-  Akamba Road  Services  Ltd & Another (2014) eKLR and Stephen  Mkare Mulava –vs- Linda Newman (2015) eKLR)

That  the court also  find that the Appellants  have not shown why their counsel  did not cross examine  DW  1 on his evidence  on the physical  position of the plots Busia Municipality 527 and 311 if  the Appellants  had any evidence to the contrary.  Even if DW 1 was to be recalled at this stage, there is nothing on record to show or suggest that his evidence on the physical position of the two plots would be any different from his earlier testimony.

That having found as above, the court finds no merit in any of the prayers in the Appellants application dated 19th July, 2013.  The application is dismissed with costs to the Respondents.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON …24TH …..DAY OF  JUNE, 2015.

IN THE PRESENCE OF;

1ST APPELLANTS/APPLICANTS…………ABSENT……………………

1ST RESPONDENT………………………… ABSENT……………………

2ND RESPONDENT…………………………PRESENT…………………

COUNSEL……MR. IPAPU FOR 2ND RESPONDENT AND MR. FWAYA FOR JUMBA FOR  MAKALI FOR APPELLANT.……………………………

JUDGE.