WILLIAM OMALA v OLOUCH OKEYO & ONSANGO FARMERS COOPERATIVE SOCIETY LTD [2010] KEHC 3410 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII

Civil Case 99 of 2008

WILLIAM OMALA (suing as personal representative of the Estate of)

OMALA YONGA) (DECEASED)..........................................................PLAINTIFF

-VERSUS-

DR. OLOUCH OKEYO............................................................1ST DEFENDANT

ONSANGO FARMERS COOPERATIVE SOCIETY LTD......2ND DEFENDANT

JUDGMENT

The applicant filed the originating summons being personal representative of the Estate of Omala Yongo. He states that land parcel Suna West/Wasimbete/924 was originally Suna West/Wasimbete/162 which was in the names of Omala Yango, Leonard Ochola, Ndege Omala, Abanga Omala, Aturo Omala and Onyango Nyende all of whom have been staying on it for a period of 30 years. He says that the 1st respondent fraudulently got himself registered as proprietor of the parcel without the knowledge of these people. He produced a copy of Adjudication Record which shows that indeed the above people were recorded as the land owners with shares in common, but that following objection, the 1st respondent replaced them as owner. The appellant states that by the time of the objection Omala Yongo had died in 1977 and could not have participated in the proceedings.

The 1st respondent was the first registered owner on 24/4/85 (W02) and sold it to the 2nd respondent for Ksh. 206,250/=. The 2nd respondent are now the registered owners. There is no allegation of fraud or knowledge of fraud against the 2nd respondent.

The applicant produced agreement (W06) of 1978 showing the original owners sold the land to Dr. Oluoch Okeyo and the transaction had been witnessed by the Recorder. It is alleged the deceased was dead by now and could not have participated in the transaction.

The court was not told whether Leonard Ochola ,Ndege Omala, Abanga Omala, Aturo Omala, And Onyango Nyende are alive or are dead. If they are dead, the applicant has no capacity to bring the cause on their behalf. If they are alive, he required their authority to bring the case as he has stated they are co-owners of the land. If they are alive and are silent about their alleged sale of the land to the 1st respondent in 1978 (W06) then that does not help the applicant’s case.

It would appear from the records held by the applicant that the first registered owner of the land was 1st respondent. There was dispute between him and the initial owners at the time of adjudication which was resolved in his favour. There was a machinery under theAdjudicationAct (Cap. 284)to resolve whatever grievance Omala Yongo or his family may have had with the 1st respondent. One would also wonder why, following the registration of the parcel, it took the applicant 23 years to bring this suit.

The 2nd respondent is the registered owner of the land. Under sections 27 and 28 of the Registered Land Act (Cap.300)he has absolute and indefeasible title. There would be no basis to hold that the 2nd respondent holds the title in trust for the applicant if the allegation of fraud was not made or proved against him. It is not an easy decision to take away the land of such a registered owner.

The respondents did not file any response to the suit. It was still the responsibility of the applicant to prove the case. I find he has not. I dismiss the summons.

Dated, signed and delivered at Kisii this 20th day of January, 2010.

A.O.MUCHELULE

JUDGE

20/1/2010

Before Muchelule-J

Court clerk-Bibu

Mr. Nyambati for Mr. Ondera for plaintiff

COURT: Judgment in open court.

A.O.MUCHELULE

JUDGE

20/1/2010