Mochoberi v Mochogwa

2. 5. The Deputy Registrar and/or the Executive Ocer of this honourable court be directed and/ or ordered to execute the transfer instruments and all attendant documents, to facilitate the transfer and registration of land measuring 0.456 Ha comprising the parcel of Land known as LR West Mugirango/Bosamaro West/544 in favour of the plainti, in the event of default by the defendant to execute the necessary transfer instruments. 6. Costs of this originating summons be borne by the defendant. 7. Such further and/or other orders be made as the court may deem t and expedient, in the circumstances of this case. The grounds upon which the plainti anchors his prayers are: i. That on or about the November 17, 1976, the plainti’s mother entered into a land sale agreement with Obaki Siango (Deceased), for a portion on Title No West Mugirango/ Bosamaro/544 for a consideration of Kenya shillings six thousand (Kshs 6,000/=) only. ii. That on the January 10, 1980, the plainti’s mother entered into a land sale agreement with Auka Siango (Deceased) for a portion on Title No West Mugirango/Bosamaro/544 for a consideration of Kenya shillings ve thousand (Kshs 5,000/=) only. iii. That further on September 5, 1980, the plainti’s mother entered into a land sale agreement with Morumbwa Siango, for a portion on title No West Mugirango/Bosamaro/544 for a consideration of Kenya shillings three thousand (Kshs 3,000/=) only. iv. That equally on the February 24, 1981, the plainti’s mother also entered into a land sale agreement with Onsarigo Siango (Deceased), for a portion on Title No West Mugirango/ Bosamaro/544 for a consideration of Kenya shillings six thousand (Kshs 6,000/=) only and a cow. v. That as at the time the plainti’s mother purchased the portions on the suit parcel of land, the same was registered in the name of one Siango Nyaata who was the father to the vendors herein. vi. That subsequently, sometime in the year 1997, One Charles Ondari Siango (Deceased) and brother to the vendors caused the entire suit parcel of land to be registered in his name. vii. Nevertheless, the plainti had entered upon and commenced possession of the suit property in the year 1976, 1980 and 1981 immediately after his mother purchased the said portions. viii. The plainti’s occupation and possession of the suit property herein has been continuous and without interruption for a duration of over 46 years. ix. Consequently, the defendant’s rights to recover the portions of the suit property herein have been extinguished by euxion of time. x. The plainti proceeded to and fenced o the aforesaid portion of land and commenced various farming activities including planting maize, nappier grass, trees and rearing cows. xi. Since acquiring the subject portion of land, the plainti has been utilizing the same peacefully and uninterrupted until sometime this year when the defendant sent an eviction notice to vacate from the parcel of land. xii. Upon carrying out some due diligence, the plainti found out that the defendant had done succession in respect to the estate of Charles Ondari Siango (the husband to the defendant) and subsequently obtained a grant and got registered as the proprietor thereof. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15005/eng@2022-11-24 2

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3. xiii. From the foregoing, it is thus evident that the defendant is keen and intent to deprive the plainti of the subject portion of land merely on an account of having been appointed as the administrator and personal representative of the estate of her late husband. xiv. Owing to the continuous occupation of the plainti over the subject parcel of land, he had acquired prescriptive rights over the same by way of adverse possession and thus the defendant’s rights to recover it as part of the estate of the late Charles Ondari Siango has been extinguished by euxion of time. xv. In the premises, the plainti’s interest(s) over the suit property merits registration on account of adverse possession. xvi. No prejudice at all shall be suered by the defendant in the event the orders sought herein are granted. According to the plainti’s pleadings, the property the subject of the suit i.e. LR No West Mugirango/ Bosamaro West/544 measuring 0.456 Hectares is to be registered in the name of Mary Nyanchama Mochagwa the defendant herein to hold it in trust for: a. Jared Nyabunga Ondari b. Vincent Nyakango Ondari c. Evans Ondieki Ondari d. Alex Maseno Ondari e. Bonface Nyakoe Abere f. Caleb Tengeya Auka g. Vincent Modi Auka 4. Vide the certicate of conrmation dated January 12, 2022 from Chief Magistrate’s Court, Nyamira in Succession Cause No E112 of 2021. It is the plainti’s case that he has occupied a portion of the suit land measuring 0.456 Hectares of the 4.4 Hectares out of LR No West Mugirango/Bosamaro West/544 for a period of over 12 years uninterrupted. He avers that he is son, legal administrator and personal representative of the estate of the late Jeriah Nyaitondi Mochaberi who purchased the aforesaid portion of land from Obaki Siango on November 17, 1976 , Auka Siango on Janaury 10, 1980 , Morumbwa Siango on September 5, 1980 and Onsango Siango on February 14, 1981. By then the suit Land was in the name of the vendors’ father one Siango Nyaata who is now deceased. The plainti’s mother took possession of the portions of the suit land in 1976, 1980 and 1981 until her demise in 1985 after which the plainti continued with the occupation of the parcel of land to date. On September 28, 2022 upon issue of notice to vacate, this court gave orders to the eect that pending hearing and determination of the application dated September 23, 2022 an order of temporary injunction be in place restricting the respondent from entering upon, grazing, tilling, cultivating, destroying crops and/or trees, alienating, disposing of, leasing and/or in any way from trespassing and/ or interfering with the plainti’s peaceful occupation of the 0.456 Hectares hived from Land parcel No West Mugirango/Bosamaro West/544. 5. When the above application came up for inter-parties hearing on October 19, 2022 the defendant’s counsel Mr Kavita raised a preliminary objection dated October 14, 2022 on as follows: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15005/eng@2022-11-24 3

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1. That this honourable court lacks jurisdiction to entertain the matter and issue the prayers sought which essentially seeks to administer an alleged estate of Jeriah Nyaitondi Mochaberi 2. That the applicant lacks capacity to bring the suit. 3. That the applicant’s suit oends the provisions of the Law of Succession Act, cap 160 on distribution immovable assets of deceased persons thus the same is fatally defective, incompetent, bad in law and should be struck out with costs. 6. The same was canvassed by way of highlighting of written submissions. 7. From the outset the plainti has claimed to have been in occupation of the suit land for a continuous period of over 12 years, uninterrupted, openly, peacefully and with the defendant’s knowledge. This even after his mother’s (Jeniah Nyaituti Machaberi’s) demise. This alone, if proved, constitutes adverse possession in favour of the plainti in his own right. On the defendant’s argument that by ling this suit the plainti seeks to distribute the estate of his late mother because he has not obtained a full grant, the defendant has not properly understood the plainti’s case. The administrator ad litem must rst of all le suit on behalf of the estate bringing back home what is still at large, gather them within the Estate before he thinks of distribution. What the plainti has done is the correct thing. Allowing him to do otherwise is equivalent to putting the cart before the horse which cannot work. Consequently, the defendant’s objection dated October 12, 2022 is hereby dismissed with costs for being misplaced. RULING DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 24TH DAY OF NOVEMBER 2022. MUGO KAMAU JUDGE In the Presence of: Court Assistant: Sibota plainti: Mr Nyambati holding brief for Ms Ndemo defendants: N/A https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15005/eng@2022-11-24 4

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