Monyenye v Ouko & 4 others (Environment & Land Case 83 of 2021) [2022] KEELC 3003 (KLR) (22 June 2022) (Ruling) Neutral citation: [2022] KEELC 3003 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NYAMIRA ENVIRONMENT & LAND CASE 83 OF 2021 JM KAMAU, J JUNE 22, 2022 BETWEEN MANSON MOREKA MONYENYE ......................................................... PLAINTIFF AND DANIEL OMOKO OUKO ................................................................ 1ST DEFENDANT JAMES MOGAKA OUKO ............................................................... 2ND DEFENDANT THABITA NYABOKE OUKO ........................................................ 3RD DEFENDANT ALBERT MWOCHA OUKO ........................................................... 4TH DEFENDANT AGNES NYANGATE OUKO .......................................................... 5TH DEFENDANT RULING 1. In the Originating Summons dated 12th October 2020 the Plaintifi seeks prayers against the Defendants for the following orders: 1. A Declaration that the Defendants’ or the Estate of Sylvester Gichana Ouko, right to recover the portion of parcel of land otherwise known as EAST Kitutu/kibirichi/702, measuring 1.5 hectares (approximately 3.75 Acres), is barred under the Limitations of Actions Act CAP 22 of the Laws Of Kenya, and their Title (the deceased’s Title) over the said parcel of land in occupation/use of the Plaintifi thereto extinguished on the grounds that the Plaintifi herein has openly, peacefully and continuously been in occupation/use and possession of the aforesaid parcel of land measuring 1.5 ha (3.75 Acres) for a period exceeding 28 years. 2. That there be an Order that the Land Registrar (Nyamira-County) (sic) do register the Plaintifi as the proprietor of the portion of land measuring 1.5 HA (3.75 Acres) of East Kitutu/ kibirichi/702, in place of the Defendants (or the Estate which they represent) and/or the https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3003/eng@2022-06-22 1
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Register thereof be rectified to refiect the Plaintifi’s ownership of the aforesaid1.5 Ha (3.75 Acres) under his use and current continued occupation. 3. That the Defendant herein be ordered to execute all the requisite papers necessary to have the Plaintifi be registered as the owner of the portion of parcel measuring 1.5 Ha (3.75 Acres) of EAST Kitutu/kibirichi/702, decreed by the Court, in default, the Deputy Registrar and/or Court Executive Oficer be at liberty to execute all such necessary documents to give efiect to the Judgment and/or Decree of the Court. 4. That this Honourable Court be pleased to issue permanent order of Injunction against the Defendants, any beneficiary of the Estate of the late Sylvester Gichana Ouko,their agents, servants and/or employees from whatsoever manner, interfering with the Plaintifi’s occupation and/or use over portion of parcel of land otherwise known as East Kitutu/ kibirichi/702, measuring 1.5 Ha (3.75 ACRES), under the Plaintifi’s occupation. 5. Costs of this Originating Summons be borne by the Defendant. 6. Such further and/or other Orders be made as the Court may deem fit and expedient, in the circumstances of this case.” 2. In their response through Daniel Omoko Ouko, the Defendants vide Replying Afidavit sworn on 2nd February 2021 denied that their late father Sylvester Gichana Ouko ever sold the suit land to the Plaintifi but that the latter had only leased part of the land for agricultural purposes which lease was terminated in 2003 and that no transfer was executed, nor consent given and no consideration ever paid. The Plaintifi’s occupation of the suit land is also denied. The Defendants also allege that the Plaintifi unsuccessfully tried to sell the suit land by claiming to be a beneficiary of the same in Kisii High Court Succession Cause No. 3 of 2004. What is pending in the High Court Succession Cause No. 3 of 2004 is the distribution of the Estate. 3. A Supplementary Afidavit by the Plaintifi sworn on 20th February 2021 reinstates what is contained in the Originating Summons. 4. By an Application dated 16th May 2022 the court has been requested to order that Evans Nyangena Nyamwaka be allowed to participate in the suit as an Interested Party and that the Interested Party’s Defence and Counter-claim attached to the Application be deemed as duly filed and served on all parties on record upon payment of the requisite fees. The Applicant claims to have purchased a portion of the suit land measuring 55 x 210feet from one Lawrence Onkoba Ouko on 25th May 2013 who is said to have sold the land as a beneficiary of the Estate in his draft Statement of Defence. The Applicant has demonstrated that he has an interest in the suit land i.e. Lr No. East Kitutu/kibirichi/702. 5. In his opposition to the Application, the Plaintifi states that the land in question never belonged to Silvester Ouko. From the Originating Summons dated 12th October 2020 the main prayer for the Plaintifi is to have him declared the owner of 1.5 Hectares of East Kitutu/kibirichi/702, the property of the Estate of Sylvester Ouko Gichana who is now deceased. Unfortunately, Lawrence Onkoba Ouko is not a party in this suit. I would therefore not want to obfuscate this matter. I would advise the Applicant to sue the right person who allegedly sold the land he claims in a separate suit and should need arise the new suit can be consolidated with this one. Should the Applicant have a rightful claim in the suit land, the same measures 19 Acres. What the Plaintifi seeks here is 1.5 Hectares i.e. 3.75 Acres leaving behind in excess of 15 Acres. The prayers sought herein are therefore declined with no orders as to costs. It is so Ordered. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3003/eng@2022-06-22 2
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RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 22ND DAY OF JUNE, 2022. MUGO KAMAU JUDGE In the Presence of: Court Assistant: Sibota Appellant: N/A Respondents: N/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3003/eng@2022-06-22 3
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