Case ID:158748

Wilson Onyango Akuma & 5 others v Town Council Nyamache & 4 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 419 of 2016

Parties:

Wilson Onyango Akuma, Benson Magembe Onyango, Kefah Oganda Onyango, Edgah Okongo Onyango, Ombago Onyango & Edward Michieka Onyango v Town Council Nyamache, County Government of Kisii, National Land Commission, Attorney General & Director of Land Adjudication

Date Delivered:

05 May 2020

Case Class:

Civil

Court:

Environment and Land Court at Kisii

Case Action:

Judgment

Judge(s):

John M Mutungi

Citation:

Wilson Onyango Akuma & 5 others v Town Council Nyamache & 4 others [2020] eKLR

Court Division:

Environment and Land

County:

Kisii

Case Outcome:

Suit dismissed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OFKENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KISII

ELC NO. 419 OF 2016

WILSON ONYANGO AKUMA..........................................................1

ST

PLAINTIFF

BENSON MAGEMBE ONYANGO...................................................2

ND

PLANTIFF

KEFAH OGANDA ONYANGO.....................................................3

RD

PLAINTIFF

EDGAH OKONGO ONYANGO.....................................................4

TH

PLAINTIFF

OMBAGO ONYANGO.....................................................................5

TH

PLAINTIFF

EDWARD MICHIEKA ONYANGO.............................................6

TH

PLAINTIFF

VERSUS

TOWN COUNCIL NYAMACHE...............................................1

ST

DEFENDANT

THE COUNTY GOVERNMENT OF KISII.............................2

ND

DEFENDANT

THE NATIONAL LAND COMMISSION................................3

RD

DEFENDANT

THE ATTORNEY GENERAL.................................................4

TH

DEFENDANT

THE DIRECTOR OF LAND ADJUDICATION...................5

TH

DEFENDANT

J U D G E M E N T

1.The plaintiffs, all members of the family of Wilson Onyango Akuma the 1

st

plaintiff herein commenced this suit by way of plaint dated 15

th

March 2011 against the Town Council of Nyamache but subsequently amended the plaint on 6

th

December 2013 to enjoin the 2

nd

to the 6

th

Defendants. The plaintiffs case is that the 1

st

plaintiff was during the land adjudication and land consolidation registered as the proprietor of land parcel

Bassi/Bondanya/405

but aver that in or about 1968 some community members unlawfully trespassed onto the 1

st

plaintiff’s land parcel

Bassi/Bondonya/405

stating that they wanted to have a Nursery School put up on a portion of his land. The 1

st

plaintiff did not agree to their overtures and sued the said Community members at Kuja African Court Civil in Case No.18 of 1968 for compensation for trespass. The 1

st

plaintiff was awarded Ksh600/= compensation and an appeal against the award was dismissed by the Kisii Resident Magistrate’s Court in Civil Appeal No.24 of 1969 on 3

rd

June, 1969.

2. The plaintiffs averred that from 1969 they have peacefully occupied the parcel of land

Bassi/Bondonya/405

save for the portion of land that the 1

st

plaintiff donated to the Seventh Day Adventist Church after the community made a request to him. The 1

st

plaintiff stated that the portion he donated to SDA church measured approximately 0.54Ha which was surveyed and delineated and that the church has occupied the portion since 1966 and had constructed a permanent church thereon. The 1

st

plaintiff stated that he first subdivided land parcel

Bassi/Bondanya/405

in 1981 to excise the church portion. The initial subdivisions were

Bassi/Bondonya/1839

and

1840

. The portion for the church was land parcel 1840 and he retained land parcel 1839. The 1

st

plaintiff averred that at the time he effected the subdivision for the church he was unaware that his land parcel 405 had infact been unlawfully subdivided without his consent to create land parcel

Bassi/Bondonya/1734

allegedly for Mogutano Nursery School and church.

3. The 1

st

plaintiff subsequently subdivided land parcel

Bassi/Bondonya/1839

amongst his family members resulting in the creation of land parcels

Bassi/Bondenya/3037

to

3049

. The land upon which the subdivisions were effected was land parcel

Bassi/Bondonya/405

which included the portion that had been illegally and unlawfully excised from the parcel

Bassi/Bondonya/1734

without the consent and/or authority of the 1

st

plaintiff. The plaintiffs sought the cancellation of land parcel

Bassi/Bondonya/1734

.

4. The 1

st

and 2

nd

defendants filed a joint statement of defence on 17

th

February 2015 and the 2

nd

defendant separately filed a counter claim against the plaintiffs. The defendants denied that land parcel

Bassi/Bondonya/1734

was fraudulently curved out of the 1

st

plaintiff’s land parcel

Bassi/Bondonya/405

and contended that the land parcel

Bassi/Bondonya/1734

was set apart for public use and was designated for use as a Nursery School and Mogutano SDA Church. The 1

st

and 2

nd

defendants averred that land parcel

Bassi/Bondonya/1734

was registered in the name of Gusii County Council (the precursor of the 2

nd

defendant) and its title was indefeasible. The 1

st

and 2nd defendants contended that the plaintiffs illegally and unlawfully annexed the land intended for public use and unlawfully constructed permanent houses thereon. The 1

st

and 2

nd

defendant denied that the plaintiffs would be entitled to the orders sought and prayed for in the plaint.

5. The 2

nd

defendant by the counter claim prayed for judgment for:-

(a) A declaration that land parcel known as

Bassi/Bondanya/1734

measuring about 2.8 hectres is a public and is legally registered in the name of Gussi County council( the precursor to the 2

nd

defendant).

(b) An order directing the plaintiffs to give vacant possession of the land parcel known as

Bassi/Bondonya/1734

in favour of the 2

nd

defendant

(c)

Costs of the suit

.

(d) Any other just relief the Court may in the interest of justice grant

6. That although the 3

rd

, 4

th

, 5

th

and 6

th

defendants were served and entered appearance through the Attorney General Vide a memorandum of appearance dated 25

th

June 2014, they filed no defence and neither did they participate in the proceedings. Further although the 1

st

and 2

nd

defendants were represented by counsel on 30

th

April 2018 when the hearing opened and the 1

st

plaintiff testified and on 1

st

August 2018 when the Court visited the locus in quo in the presence of the Land Registrar and County Surveyor, the 1

st

and 2

nd

defendants did not participate in the further proceedings. The 1

st

plaintiff and two other witnesses, Philips Moison Ombuyi ( PW2) and Peter Maragia Nyanga (PW3) testified in support of the plaintiffs case.

The Plaintiff case

7. The 1

st

plaintiff Wilson Onyango Akuma testified that he was allocated land parcel

Bassi/Bondanya/405

during the land adjudication process that took place in 1968. He stated that in 1966 he had donated and given the Seventh Day Adventist Church (SDA) a portion of about 0.5 Hectares (1 ¼ acres) out of his land where the they constructed a semi-permanent church. He stated the SDA has since constructed permanent structures on the portion he gave them.

8. The 1

st

plaintiff explained that after the completion of the Land Adjudication he excised off the portion he had donated to the SDA church and they were issued with a title number

Bassi/Bondonya/1840

and his portion remained as land parcel

Bassi/Bondonya/1839.

9.The 1

st

plaintiff however stated that during the land adjudication process in 1968 some members of the local community approached him and requested him to donate/give some land for the construction of a Nursery School but he refused/declined to do so as he had already given some land to the SDA. The Community wanted him to give additional land which he was not prepared to do. He stated that the Adjudication Committee and the members of the Community wanted to forcibly apportion his land and when he and members of his family resisted, they were arrested and were taken to the chief’s camp where they spent a night before they were released. The 1

st

plaintiff stated the persons who had invaded his land with the intention of hiving off a portion for the school had damaged his fence and crops and he sued them at Ogembo Law Courts and they were ordered to compensate him for the damage and their subsequent appeal against the order for compensation was dismissed by the High Court. The 1

st

plaintiff was not aware that his land parcel 405 had been excised to create the portion for the Nursery School. The 1

st

plaintiff was in occupation of his entire parcel 405 measuring approximately 15.5 hectares. The 1

st

plaintiff testified that he was issued title for the land parcel

Bassi/Bondanya/405

in 1971 and that in 1981 he subdivided the land into land parcels 1839 and 1840.

10. Land parcel 1840 measuring 0.25 Ha was the portion he had donated to the church and parcel 1839 measuring 15.25 Ha was the remainder after the subdivision of land parcel 405. The 1

st

plaintiff testified that on his land parcel 1839 he had constructed 5 permanent houses, a shop, and 2 semi- permanent houses. He affirmed he had since subdivided land parcel 1839 into 13 portions which he had given to his children.

11. The 1

st

plaintiff further testified that in the year 2010 whilst on a visit to the USA where he had visited his son he got a call from his other son, Samuel notifying him that Nyamache Town Council had given him a 21 days’ notice to vacate from land parcels

Bassi/Bondonya/1734

which the notice indicated had been reserved for a Nursery School . The 1

st

plaintiff stated that the portion shown as land parcel 1734 was part of his land and comprised the portion that he had donated to the SDA Church. He averred that parcel 1734 was super imposed on his land parcel 405 stating that he and his family have occupied the portion designated as parcel 1734 since the land adjudication in 1968 and he had effected permanent developments thereon.

12. The SDA Church sits on the portion that Nyamache Town Council claims to be part of land parcel 1734 yet as per the subdivision effected in 1981 from land parcel 405 the SDA church land parcel is 1840. The 1

st

plaintiff in his evidence interalia stated as follows:-

--On the portion 1734 I have bananas and bluegum trees and I have occupied the same over a long period of time from 1968. The documents used to create land parcel 1734 are not authentic. The church is physically on the portion said to be land parcel 1734. Land parcel 1734 is super imposed on my land parcel 405. The natural boundary of my land is the river but parcel 1734 is shown to be across the land where my land is.”

13. The 1

st

plaintiff in his testimony after the Court visited the Locus in quo concluded his evidence by affirming that other than the portion of land he had given to the SDA church he never gave any other land to anybody else. He stated he did not give out land parcel 1734 and did not know how it was created. He stated his land parcel 405 extended from the top of the hill to the river and included the portion claimed by the community for Nursey School as parcel 1734. He stated he had constructed a shop and his children had constructed their permanent homes on the portion claimed as land parcel 1734. He stated that other than the church whom he had given portion of his land nobody else save for his family members had used any part of his land. Mugutano Nursery School who claim land parcel 1734 have had no activities on the suit land and the 1

st

plaintiff insisted their claim is unjustified and sought orders as per the amended plaint.

14. The plaintiffs called as witnesses PW2 one Philips Mosioma Ombuya and PW3 one Peter Maragia Nyaanga who were both members of SDA Church. Their evidence corroborated the evidence by the 1

st

plaintiff that he donated and gave them land on which Mugutano SDA Church was constructed. PW2 and PW3 affirmed that the 1

st

plaintiff gave the Church the land in 1966 and that the Church holds land title

Bassi/Bondonya/1840

in respect of the portion they were given. The witnesses confirmed that land parcel 1734 claimed by the Nursery School includes where the church stands and where the plaintiffs homesteads are constructed. The witnesses stated that the land where the Church has been constructed was never public land and that the land belonged to the plaintiff before it was donated to the church. It was their position that no land had been reserved for the public for use by the school and /or the Church.

15. The defendants as observed herein above did not tender any oral evidence and did not attend Court to cross examine the plaintiffs witnesses. The evidence by the plaintiff and the witnesses remains unchallenged. The statement of defence by the 1

st

and 2

nd

defendants and 2

nd

defendant’s counterclaim remain unproven. Where a party propers a defence but fails to adduce any evidence in support of the same, the defence remains a mere statement of facts but which facts are unproven by any evidence. The same is true of a plaint or counterclaim where no evidence is tendered in proof of the same. The Court in those circumstances, unless there is admission by the opposing party, has to find that the plaint/counterclaim or defence is unproven.

16. In the present case the plaintiffs have led evidence in support of their claim against the defendants which evidence has not been controverted. The Court has no reason or basis to reject the evidence. The evidence by the 1

st

plaintiff was consistent and credible and was supported by the evidence of PW2 and PW3. The evidence tendered by the Land Registrar and the County Surveyor by way of documents clearly supported the evidence by the 1

st

plaintiff that upon being allocated land parcel 405 during the process of land adjudication he occupied the whole of it as it was delineated physically on the ground. The developments the plaintiffs effected on the ground attest to this. The Court visited the locus in quo and was able to see for itself how the land had been utilised. The developments on the ground were mainly of a permanent nature and were not undertaken recently. The sketch Plan prepared by the County Surveyor after inspection of the site showed that the SDA Church buildings and all the permanent buildings constructed by the 1

st

plaintiff and his children are all on land parcel 1734 now claimed by the 1

st

and 2

nd

defendants. The 1

st

and 2nd defendants as per their statements of defence and counterclaim averred land parcel

Bussi/Bundonya/1734

was reserved as a public plot for a Nursery School and church.

17. The 1

st

plaintiff explained in his evidence that the community had wanted him to donate some land for a School but he refused to grant the request. He maintained he only agreed to donate a parcel of land to the SDA Church which he effected by subdividing his land parcel 405 into parcels 1839 and 1840. The 1

st

plaintiff infact testified some time in 1968 following land adjudication some members of the Community invaded his land parcel 405 with the object of curving out a portion of land therefrom which action he resisted leading to his arrest together with his son. He stated he subsequently sued the members in Gucha District Magistrates Court in Civil Case No.176 of 1968 for trespass and compensation. The 1

st

plaintiff was awarded compensation for his damaged fence and crops and a subsequent appeal was dismissed.

18. On the evidence adduced it does appear land parcel 1734 is super imposed on Land parcel 405. On the ground what is said to be land parcel 1734 is fully occupied by the SDA Church and the 1

st

plaintiff’s family. There are old permanent houses and a fully developed Church sanctuary. There is no explanation how all these developments could be effected on land parcel 1734 if indeed the same had been set part as a public plot. The only viable explanation could only be that the 1

st

plaintiff’s family set out to develop this land as it formed part of their land parcel 405. In the circumstances I accept the 1

st

plaintiff’s evidence that land parcel 1734 constituted part of his land parcel 405 that was adjudicated in his favour in 1968. I am satisfied that indeed Land parcel

Bassi/Bonyanya/1734

does not exist on the ground .The land parcel 1734 appears to have been hived out of land parcel 405 merely on paper and that was without the consent and/or approval of the 1

st

plaintiff who was the registered owner of land parcel

Bassi/Bondonya/405

. The creation of land parcel

Bassi/Bondonya/1734

was unlawful and illegal. The occupation of the Land parcel

Bassi/Bondonya /1734

by the 1

st

plaintiff and the SDA Church does not give rise to any trust in favour of the defendants. Their occupation is as of right as the rightful owners.

19. In the premises and taking into account the totality of the evidence, I am satisfied that the plaintiffs case is proved on a balance of probabilities. The 2

nd

defendant’s counterclaim against the plaintiffs is unproven to the required standard and is hereby dismissed.

20.As I have held that Land parcel

Bassi/Bondanya/1734

was unlawfully and illegally created and super imposed on land parcel

Bassi/Bondonya/405

. I order that the same be cancelled and deleted from the register of titles. I accordingly make the following final orders:

(a) The Land Registrar, Kisii is hereby ordered to cancel title number Bassi/Bondanya/1734 for having been unlawfully and illegally issued for nonexistent land.

(b) That the plaintiffs are entitled to the exclusive occupation and use of L.R Bassi/Bondonya/405 and/or any resultant subdivisions there from without any hindrance from the defendants.

(c) Each party to bear their own costs of the suit and counterclaim

.

Judgment dated and signed at Nakuru this 21

ST

day of FEBRUARY 2020.

JOHN M MUTUNGI

JUDGE

Judgment delivered at Kisii this 5

th

day of March 2020

J ONYANGO

JUDGE