Case ID:170264

Christopher Guto Nyangoya & another v Joseph Sorobi Oyugi & 2 others[2021] eKLR

Case Metadata

Case Number:

Environment and Land 51 of 2016

Parties:

Christopher Guto Nyangoya & Alloys Mokua Nyangoya v Joseph Sorobi Oyugi, Hellen Kwamboka David & Joseph Morumbwa Andrew

Date Delivered:

10 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Kisii

Case Action:

Judgment

Judge(s):

Jane Muyoti Onyango

Citation:

Christopher Guto Nyangoya & another v Joseph Sorobi Oyugi & 2 others[2021] eKLR

Court Division:

Environment and Land

County:

Kisii

Case Outcome:

Application 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 OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

ENVIRONMENT AND LAND NO. 51 OF 2016

CHRISTOPHER GUTO NYANGOYA...........1

ST

PLAINTIFF

ALLOYS MOKUA NYANGOYA..................2

ND

PLAINTIFF

-VERSUS-

JOSEPH SOROBI OYUGI...........................1

ST

DEFENDANT

HELLEN KWAMBOKA DAVID...............2

ND

DEFENDANT

JOSEPH MORUMBWA ANDREW..........3

RD

DEFENDANT

JUDGMENT

INTRODUCTION

1. On 9

th

March 2015, the 1

st

Plaintiff filed this suit vide a plaint dated the same day against the Defendants jointly and/or severally seeking

inter alia

the following orders;

A declaration that the 1

st

Plaintiff is the lawful bonafide and registered proprietor of the land known as

LR NO NYARIBARI CHACHE/B/B/BOBURIA 10460

and that the 2

nd

Plaintiff is the lawful, bonafide and registered proprietor of the parcel of land known as

LR NO. NYARIBARI CHACHE /B/B/BOBURIA/10459

and

10461.

ii. An order of injunction restraining the Defendants either by themselves, agents, servants, or anyone claiming under the defendants from re-entering, trespassing onto, laying a claim to, cultivating, leasing, building onto; entering and/or in any manner dealing with the parcels of land known as

LR NUMBER NYARIBARI CHACHE/B/B BOBURIA/ 10459, 10460 and 10461.

iii. An order of eviction evicting the Defendants their agents and/or servants from

LR NO NYARIBARI CHACHE/B/B/BOBORIA 10459, 10460

and

10461.

A declaration that the 2

nd

and 3

rd

Defendants are holding the parcels of land known as

LR NOS NYARIBARI CHACHE/B/B/BOBURIA/5760, 5761

and

5762

in trust for the Plaintiffs.

v. In the alternative the Plaintiffs pray for a declaration that the registration of the Defendants as proprietors of the parcels of land known as

LR NOS. NYARIBARI CHACHE/B/B/BOBURIA 5760, 5761

and

5762

is illegal and that the titles be cancelled and in their place, the plaintiffs be registered as proprietors.

vi. Costs incidental to this suit.

vii. Interest on a, b, c, above at court rate.

viii. Any other further relief that this Honourable court may deem fit and just to grant.

2. This matter was during the proceeding consolidated with another matter,

ELC CASE NO. 501 OF 2015

wherein the 2

nd

Defendant sued the 2

nd

Plaintiff seeking a declaration that parcel no.

LR No. NYARIBARI CHACHE/B/B/BOBURIA 5760

belonged to her hence she sought an order for eviction against him

.

3. The consolidated matters were then fixed for hearing where upon the parties herein tendered their respective evidence and thereafter the Court directed parties to file their written submissions in support of their respective arguments.

4. During the hearing directions were taken with regard to the hearing of the consolidated files. The Plaintiff in

ELC NO. 501 OF 2015

was treated as the 2

nd

Defendant while the Defendant was treated as the 2

nd

Plaintiff

THE PLAINTIFFS’ CASE

5. The Plaintiffs are the sons of the late

John Nyangoya Momayi

who died on

21

st

May 1980

and who was the registered proprietor of the land known as

LR NO. NYARIBARI CHACHE/B/B BOBURIA/2529.

6. The 1

st

Plaintiff had not been residing on any portion of the said property while the 2

nd

Plaintiff had been occupying the entire land.

7. The 1

st

Plaintiff claim that some time on 13

th

February, 1997, the 2

nd

and 3

rd

Defendants caused a portion of the suit land to be registered in their names.

8. The 1

st

Plaintiff alleges that sometimes in 2013 when he appointed a Surveyor to conduct some subdivision on the parcel of land he occupies, he realized that the 2

nd

and 3

rd

Defendants had sub-divided the Suit Property and registered the same in their names.

9. The 1

st

Plaintiff alleges that the subdivision of the said parcel of land

LR NO. NYARIBARI CHACHE/B/B BOBURIA/2529

were occasioned through fraud on the part of the Defendants.

10. The 2

nd

Plaintiff averred that he remembered carrying out succession vide kisii

HIGH COURT SUCCESSION CAUSE NO. 40 OF 1994

and obtained a grant of the Letters of Administration. The said grant was never confirmed hence it is his contention that the subdivisions might have been occasioned by the 2

nd

Defendant’s late husband who was working as a Surveyor in Kisii.

11. The subdivisions were as follows;

a. LR NO. NYARIBARI CHACHE/B/B BOBURIA/10459

to the 2

nd

Plaintiff

b. LR NO. NYARIBARI CHACHE/B/B BOBURIA/10460

to the 2

nd

Plaintiff

c. LR NO. NYARIBARI CHACHE/B/B BOBURIA/10461 to

2

nd

Plaintiff

d.

e. LR NO. NYARIBARI CHACHE/B/B BOBURIA/10462

to Evans Osiemo Kamanda.

f. LR NO. NYARIBARI CHACHE/B/B BOBURIA/5761 to the 2nd Plaintiff.

g. LR NO. NYARIBARI CHACHE/B/B BOBURIA/5767 to

David Momanyi Okemwa.

h. LR NO. NYARIBARI CHACHE/B/B BOBURIA/5760- to

2

nd

Defendant

i. LR NO. NYARIBARI CHACHE/B/B BOBURIA/5762 to the

3

rd

Defendant.

12. The 1

st

Plaintiff averred that the 2

nd

and 3

rd

Defendants approached the 2

nd

Plaintiff so that that he could lease to them the various portions of the Suit Property.

13. The 1

st

Plaintiff stated that the husband of the 2

nd

Defendant wanted to purchase the portion leased to him but he died before he purchased the same.

14. The 2

nd

Plaintiff alleges that the 3

rd

Defendant who died in 2001 attempted to purchase

LR NO. NYARIBARI CHACHE/B/B BOBURIA/5762 now registered to his name but did not manage.

15. The 1

st

Plaintiff claims that the 1

st

Defendant on his part leased a portion of the suit land to the 2

nd

Plaintiff but has refused to move out.

16. The 2

nd

Plaintiff alleges that the 1

st

Defendant did not purchase any land from him and contends that the same was only leased to him.

17. The 1

st

Plaintiff alleges that the 2nd Plaintiff being illiterate was always being misled into signing documents he did not understand, and as a result, he together with his brother lost their ancestral land to the 1

st

and 2

nd

Defendants. Consequently, the Defendants denied and/or deprived the Plaintiffs of their entitlement over and in respect of the Suit Properties.

THE DEFENDANTS CASE

18. The 1

st

Defendant claims that in 1997 the 2

nd

Plaintiff who was the registered proprietor of Land Parcel No.

NYARIBARICHACHE/B/B/BOBURIA/5761

sold to him a portion of the said parcel measuring 70feet by 160 feet at a consideration of Kshs. 50,000. That after sometime the 2

nd

Plaintiff added him another portion measuring 222feet by 70 feet which he continues to enjoy quiet possession of to date. He avers that the 2

nd

Plaintiff voluntarily and willingly sold to him the land and thus should be ordered to transfer the portion he sold to the 2

nd

Plaintiff voluntarily. He further claims that even though he never obtained the consent of the Lands Control Board as legally required he has nevertheless acquired the same by way of adverse possession, having stayed on the said parcel since 1997.

19. The 2

nd

Defendant claims that she is the registered proprietor of land parcel known as

LR NO. NYARIBARI CHACHE /B/B/BOBURIA/5760

wherein the title was issued to her in 1997 after the same was transferred to her by her late husband who was the registered owner thereof. It was also her testimony that at the time the land was purchased from the 2

nd

Plaintiff who later obtained Letters of Administration vide Succession Cause No. 40 of 1994. The 2

nd

Plaintiff subsequently carried out the subdivisions transferring the foregoing portion to him. She further claims that she has been in occupation of the said portion since acquiring it up to sometime in 2015 when the 2

nd

Plaintiff trespassed onto it prompting her to sue him.

20. The 1

st

and 2

nd

Defendants aver that the 3

rd

Defendant is wrongly enjoined in the suit since he died way back on 1

st

September, 2001 although he is the Registered owner of land Parcel number

LR. NO. NYARIBARICHACHE/B/B/BOBURIA/ 5762.

21. They both claim that they bought their portions legally from the 2

nd

plaintiff and acquired good title

PLAINTIFF’S SUBMISSIONS

22. Counsel for the Plaintiff’s submitted that the title of the 2

nd

Defendant is impeachable by dint of the provisions of Section 26 (1) (a) of the Land Registration Act, 2012 and therefore It cannot be allowed to stand and must be cancelled.

23. To bring his argument in to perspective, he submitted that from the evidence that was tendered in court, when land parcel

LR NO. NYARIBARI CHACHE /B/B/BOBURIA/5760

is alleged to have been sold to the 2

nd

Defendant’s husband by the 2

nd

Plaintiff in 1997, the 2

nd

Plaintiff was not the registered owner thereof. This is because his father the late

JOHN NYANGOYA MOMAYI

who was the registered owner of the said parcel was alive. He argues therefore that the Plaintiff could not sell any portion of land or transfer the same to the husband of the 2

nd

Defendant since he had nothing to sell. It is his contention that any transaction or document arising from the alleged sale of land in 1977 is null and void.

24. He submitted that the 2

nd

Defendant did not tender any evidence that controverted the Plaintiff’s averments that her Title land parcel known as

LR NO. NYARIBARI CHACHE /B/B/BOBURIA/5760

was not acquired through fraud, or misrepresentation and/ or was acquired illegally, unproceduraly or through a corrupt scheme.

25. He went on to argue that since according to the court record it was confirmed that the husband of the 2

nd

Defendant was a surveyor working in Kisii, there wasa high possibility that he illegally acquired the said title.

26. To support his argument, he relied on the case of

Elijah Makeri Nyangwara vs Stephen Mungai Njuguna & Another, Eldoret ELC Case No. 609 B of 2012

where the court stated as follows: -

"…it needs to be appreciated that for Section 26(1) (b) to be operative, it is not necessary that the title holder be a party to the vitiating factors noted therein which are that the title was obtained illegally, unprocedurally or through a corrupt scheme. The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions."

27. With regard to the case against the 1

st

Defendant, the Plaintiff submitted that from their evidence, the 1

st

Defendant took advantage of the fact that the 2

nd

Plaintiff was illiterate and could not understand the nature of the agreement he was entering into with the 1

st

Defendant. As a result he contends that the said agreement was not made in good faith hence it is not enforceable.

28. He argued that the evidence led by the Plaintiff confirmed that the portion of land was leased to 1

st

Defendant hence any element of absolute purchase and transfer could not arise. It is his contention that if at all any document has been issued to the 1

st

Defendant, then the same was fraudulently done by the 1

st

Defendant. Counsel for the Plaintiff argues that between the 1

st

Defendant and 2

nd

Plaintiff the agreement is not enforceable. It is his further argument that the 2

nd

Plaintiff was not able to understand the terms of the agreement hence the same was not made in good faith. It is his case that the same was made with ill intentions of defrauding the Plaintiffs, hence any transaction between them should be declared null and void.

29. In conclusion the Plaintiff submitted that since the 1

st

and 2

nd

Defendants were in occupation of the suit land they illegally acquired, an order should be granted for them to render vacant possession to the Plaintiffs within a specified timeline in default of which they should be evicted. He relied on the case of

CHEVRON (K) LTD V HARRISON CHARO WASHUTU (2016) eKLR

wherein the Court of Appeal rendered itself as follows:

‘’ the power of the court to do substantive justice is today wider than before. We see no harm to make appropriate orders flowing from a finding that the Respondent’s occupation of the suit property was adverse to that of the appellant and that the latter’s was so extinguished.’’…like in the above authority, we make the order that the appellant shall transfer to the respondent the property at the latter’s expense within 30 days from the date hereof, failing which the Registrar of the High Court at Malindi shall execute on behalf of the appellant the necessary transfer documents.

THE DEFENDANTS SUBMISSIONS

30. Counsel for the Defendants basically submitted by responding to the issues raised by the counsel for the plaintiff. On the issue of the 2

nd

Defendant acquiring the suit property unprocedurally and or through corrupt means, he retaliated that, the 2

nd

Defendant had obtained good title after the same was transferred to her by her husband who had bought the same from the 2

nd

Plaintiff. He submitted that the 2

nd

Plaintiff had obtained letters of administration vide

KISII HC. SUCCESSION CAUSE NO. 40 OF 1994

and it is through him that the subdivisions were generated.

31. He went further to submit that no other evidence was presented by the Plaintiffs that proved that the title issued to the 2

nd

defendant was obtained fraudulently.

32. On the issue that the case against the 1

st

Defendant he submitted that, he the 1

st

defendant had presented uncontroverted evidence on how he obtained a section forming part of parcel

LR NO. NYARIBARI CHACHE /B/B/BOBURIA/5761

measuring 222feet by 70 feet on a willing seller willing buyer basis some time in 1997. He submitted that even though the 1

st

defendant did not get consent from the Land Controls Board as legally required to validate the sale, he had since occupied the suit property continuously, openly and uninterruptedly for a period of more than 12 years hence he had acquired the same by adverse possession. He requested the court to order that the 2

nd

plaintiff be compelled to transfer the said portion forming part of parcel 5761 to him.

ISSUE, ANALYSIS AND DETERMINATION

33. From the onset before delving into an analysis of the issues raised in this suit and my determination of the same, it is important to point out that the suit against the 3

rd

Defendant who died has abated.

34. In this suit, I deduce the following as the issues for determination;

a. whether the 2nd Defendant acquired parcel NO. NYARIBARI CHACHE /B/B/BOBURIA/5760 through fraud, or misrepresentation and/ or whether the same was acquired illegally, unproceduraly or through a corrupt scheme.

b. whether the 2

nd

defendant has obtained a portion of the parcel of land known as L.R NO. NYARIBARI CHACHE /B/B/BOBURIA/5760 measuring 222 by 70 feet legally and in the alternative whether he has acquired the same by adverse possession

.

Whether the 2nd defendant acquired Parcel No. NYARIBARI CHACHE /B/B/BOBURIA/5760 through fraud, or misrepresentation and/ or whether the same was acquired illegally, unproceduraly or through a corrupt scheme.

35. The 2

nd

Plaintiff alleges that he some time in 1977 leased to the husband of the 2

nd

Defendant the portion the 2

nd

Defendant claims to have a valid title over. He avers that he did not transfer the same to him because by the time he was leasing the property to him, his father was alive and therefore he had no right to sell or transfer the property to the 2

nd

Defendant. He alleges that he only realized that the 2

nd

Defendant and the 3

rd

defendants had subdivided his late father’s property and obtained titles thereto in 2013 when he engaged a surveyor to conduct subdivision of his portion of the property which he was selling. He claims that there was no succession done to occasion the said subdivisions. He alleges that the sub division giving rise to the portion registered in the name of the 2

nd

Defendant might possibly have been occasioned by the 2

nd

Defendant’s late husband who by then was a Surveyor in Kisii. Counsel for the 2

nd

Plaintiff submitted that the title obtained by the 2

nd

Defendant violated the provision of section 26 (1) of the Land Registration Act, 2012.

36. Clearly the 2

nd

Plaintiff did not deny there being a contract or an arrangement to give possession to the 2

nd

Defendant’s husband. To him it was a lease Agreement and not a sale agreement. In fact, his brother, the 1

st

Plaintiff, alleged that his brother’s main problem was illiteracy and he signed documents that he did not comprehend. Counsel further submitted that while he appreciates that,, there was an agreement between the two, the same was not valid as the 2

nd

Defendant’s father who was the registered owner was alive. This therefore meant that the agreement was null and void.

37. Therefore the main issue is not whether the sale agreement was valid but rather whether the subsequent transfer of the land to the name of the 2

nd

Defendant’s husband was proper. The Plaintiffs testified that the sub-divisions were done on 13

th

February, 1997 through corrupt dealings probably by the 2

nd

defendant’s late husband who was a Surveyor at Kisii. The 2

nd

Defendant claims that the transfer arose from the subdivisions done by the 2

nd

Plaintiff who had obtained administrative powers vide succession cause 40 of 1994 as evidenced by grant of letters of administration produced as exhibit before court.

38. It is surprising to note that the Plaintiff’s did not challenge the grant obtained in 1994 which gave the 2

nd

Plaintiff the right to administer the estate of his late father and distribute the same to his heirs and to persons who laid any beneficial interest over it.

39. Pushed to the corner, the 2

nd

Plaintiff acknowledges having carried out succession in 1994 but claimed that his grant had not been confirmed so as to give him the power to effect the said subdivisions.

40. From the forgoing its clear from the allegations of the Plaintiffs that the subdivisions were done 1997, 20 years after an agreement whether for sale or lease was entered between the 2

nd

Defendant’s husband and the 2

nd

plaintiff. Even without considering whether the same met the requirements of section 26 of the Land Registration Act as submitted herein above, the same is

voided

by

Section 6 the Land Control Act

that makes it mandatory for such transactions to get the consent of the Lands Control Board before the expiry of 6 months from the date of their execution.

41. However, even though the agreement was voided by reasons raised above, the Plaintiffs did not adduce any evidence that they ever challenged the 2

nd

Defendant’s husband illegal occupation of the property before 1997 when the illegal sub divisions are alleged to have been occasioned. They also did the tender any evidence to show that they indeed challenged the occupation of the wife of the 2

nd

Defendant up to 2016 when they filed this suit.

42. It shocking that while the 1

st

Plaintiff denies that the Grant of Letters of Administration issued to him in 1994 vide succession cause no, 40 of 1994 to administer the estate of his father has never been confirmed he nevertheless confirmed that theyare currently the registered owners of Land Parcel number

LR. NO. NYARIBARICHACHE/B/B/BOBURIA/ 10459, 10460 and 10461.

The said sub divisions were effected by the 1

st

Plaintiff between 2013 to 2014 as per their documents filed in court

.

43. Worse still the Plaintiffs aver in paragraph 11 of their plaint that in 2013 1

st

Plaintiff did effect a transfer of LR NO. NYARIBARI CHACHE/B/B BOBURIA/10462 to Evans Osiemo Kamanda. The question that comes to my mind therefore is, if it is true that the Grant of Letters of Administration was never confirmed, how did the 2

nd

Plaintiff get the powers to conduct the said sub divisions? How can he blame the 2

nd

Defendant’s husband for occasioning sub divisions illegally while at the same time he carried out transfers and sub divisions without his grant being confirmed? Without the confirmation of grant, it is expected that the suit property would be intact and remain in the name of Plaintiff’s father. Given that there is no evidence that the grant has been confirmed and that the 2

nd

Plaintiff has been active in subdividing the suit property, I find it hard to conclude that his grant was not confirmed and that he is not the one who effected the sub division and submissions transfer of the property to the 2

nd

Defendant or to his late husband.

44. Having found the 2

nd

Defendant and her husband were in occupation of the suit property since 1977 when the 2

nd

Defendant’s husband entered into a sale agreement I have since ruled to have been null and void for lack of consent from the Land Control Board, I find that the 2

nd

Defendant has been in adverse possession and has therefore acquired title as against the Plaintiffs.

Whether the 1

st

defendant obtained a portion of the Parcel of land No. NYARIBARI CHACHE /B/B/BOBURIA/5761 measuring 222feet by 70 feet legally and in the alternative whether he has acquired the same by adverse possession.

45. It is important to discuss the requirements that need to be considered in making a determination of adverse possession. For one to succeed in a claim of adverse possession he must satisfy the following criteria stated in the case of

Maweu Vs. Liu Ranching and Farming Cooperative Society 1985 Klr 430

where the court held;

“Thus, to prove title by adverse possession, it was not sufficient to show that some acts of adverse possession had been committed. It was also to prove that possession claimed was adequate, in continuity, in publicity and in extent and that it was adverse to the registered owner. In law, possession is a matter of fact depending on all circumstances

”.

46. In his submissions Counsel for the 1

st

Defendant has conceded that the agreement that existed between the 1

st

and the 2

nd

Defendant was voided by the requirement by the Land Controls Act that such a transaction needs to be consented to by the local Land Control Board six months after its execution. The 1

st

Defendant only claim over the suit property remained that of adverse possession. It is uncontroverted evidence that he has been in occupation of the suit property since 1997 when the two entered into in the now impugned agreement. He has therefore met all the requirements to be declared an adverse possessor of the portion he currently occupies against the 2

nd

Plaintiff.

47. In the light of the foregoing, I dismiss the plaintiff’s claim as against the Defendants and make the following orders;

i. The 2

nd

defendant is hereby declared as the lawful bonafide and registered proprietor of the land parcel known as

LR NO NYARIBARI CHACHE/B/B/BOBURIA 5760.

ii. An order of injunction is hereby issued restraining the Plaintiffs either by themselves, agents, servants, or anyone claiming under the defendants from re-entering, trespassing onto, laying a claim to, cultivating, leasing, building onto; entering with and/or in any manner dealing with the parcels of land known as

LR NO NYARIBARI CHACHE/B/B/BOBURIA 5760.

iii. An order of eviction is hereby issued evicting the Plaintiff their agents and/or servants from

LR NO NYARIBARI CHACHE/B/B/BOBURIA 5760.

iv. The 2

nd

Defendant is hereby declared to have obtained a portion of LR NO NYARIBARI CHACHE/B/B/BOBURIA 5761 measuring 220feet by 70feet by adverse possession and thus the 2

nd

Plaintiff is hereby ordered to execute the necessary documents in order to effect the said portion to the 2

nd

Defendant. Failing which within a period of 30 days, the Deputy Registrar, Kisii High court shall sign the said documents.

v. Each party to bear their own costs.

Dated, signed and delivered at Kisii this 10

th

day of February, 2021.

J.M ONYANGO

JUDGE