William Emojong Ekakor v Emorut Barasa Daimas [2017] KEHC 7242 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL SUIT NO. 23 OF 2010 (O.S.)

WILLIAM EMOJONG EKAKOR….PLAINTIFF

VERSUS

EMORUT BARASA DAIMAS…..DEFENDANT

JUDGEMENT

[1]. The applicant has brought this Originating Summons dated 8th March 2010 seeking the following orders;

(a)That the applicant has  become entitled to 3 ½ acres of land comprised in land parcel No. N. Teso/Moding/113 by adverse possession and acquiring presumptive rights  thereon.

(b) That the respondent do transfer 3 ½ acres of land out ofthe suit land to the applicant and in default the DeputyRegistrar of this Court to execute all the necessary documents.

The facts giving rise to this originating summons are that in 1981 the applicant purchased ½ of Teso/Moding/113 comprising of five acres or thereabouts and owned by Okapesi Emorut Omasete for eleven cows and Kshs.150/-.  That on 28/10/81 he paid six cows and Ksh.150.  he later paid the five cows.  He said that he later added one acre on 29/10/1994.  His total acrage was therefore supposed to be 3 ½ acres.  The plaintiff took possession and occupied the entire land and erected one permanent house and 3 semi permanent houses.  He lives on the land todate.

[2].  Mr. Okapesi Emorut Omasete had only one daughter Mercylyna Maemba Aketch who married and left the land.  Omasete died on 15/5/2003.  He was buried on one corner of the land in Teso/Moding/113.

[3].  The defendant Emorut Barasa Dalmas was only 6 years old in 1981 when the land was bought by the applicant.  He is the son of the brother of Okapesi Emorut Omasete one Victor Barasa Emorut who was the registered owner of land parcel number Teso/Moding/112.

The respondent has all along lived on his father’s land Teso/Moding/112 while the applicant has been on the land parcel Teso/Moding/113.

[4]. By the time Okapesi Emorut Omasete died in 2003 there was no dispute between him and the Applicant herein at all.  From the purchase of the land in 1981 to 2003 was 22 years.  The applicant had been on the land for 22 years.

[5].  Evidence on record by the applicant and the respondent and their witnesses is that the applicant has lived on Teso/Moding/113 from 1981.  There is no mention of anyone else occupying the land.

The respondent himself is on record admitting that though he filed a suit to evict the plaintiff in 2008 from Teso/Moding/113 he has never lived on the land himself.

[6]. This is agricultural land.  The same is subject to Land Control consent.  The agreement was made on 28/10/81 Land Control Consent for the purchase was not obtained within the prescribed time of 6 months.  The sale for the 2 ½ acres became void under section 6 of the Land Control Act by May 1982.  The occupation of the applicant became adverse to the interests of the registered owner  by May 1994 the plaintiff acquired rights under adverse possession over not only the 2 ½ acres he had purchased but on the entire land he used and/or occupied.

Evidence is on record as earlier stated that he was the one using the entire land.  So, even if he said he paid for the one acre in 1994, he was still in occupation of the entire land and time was running for that one acre too.

[7].  The ingenious argument by Mr. Areba learned Counsel for the respondent, in his submissions that time had not run for 12 years on the one acre because of the suit filed by the respondent demanding that  the applicant do vacate the land in 2008 is with profound respect misplaced.

There is no evidence that the Applicant only occupied only half of the land since 1981.  He was on the land alone.

[8].  By the time the respondent filed a Succession Cause in the year 2005 the applicant had already acquired title by adverse possession.  The registered owner Okapesi Emorut Omasete was holding the proprietory rights over parcel North Teso/Moding/113 as a trustee for the applicant because the applicants prescriptive rights had become overriding interests under Section 30(f) of the registered Land Act Cap 300 (now repealed)

See; Githu vNdeete (1984) KLR and KairuVGacheru (1988) KLR 297.

[9]. The applicant in this case has claimed 3 ½ acres out of LR No. Teso/Moding/113 in his originating summons.

A party is bound its pleadings.

I will therefore allow the Originating Summons as prayed with costs.

Judgment read in open court.

DATED and DELIVERED at BUNGOMA this 10th day of March,  2017

S.N. MUKUNYA

JUDGE

In the presence of:

Court Assistants  -  Chemtai/Joy

Mr. Makokha      -  For Areba for the respondent.