Kamunya v Kaikai & another

2nd Defendant: a. An order for the delivery of full Vacant possession of the suit premises in terms of the Sale Agreement dated November 20, 2007. b. Mesne prots from completion date until possession is delivered up. bb) A refund of Kshs 8,675,000 being the value of the shortfall in acreage of 17.35 acres that was misstated by the 2nd defendant. bbb) In the alternative a refund of Kshs 47,200,000 being the current value of the whole of suit properties as the 2nd Defendant has fundamentally breached the entire sale agreement and has also not given vacant possession of the suit property to the Plainti as envisaged by the Sale Agreement of November 20, 2007. c. Costs. d. Interest on (b) and (c) above. e. Costs of this suit. 3. The 1st Defendant led her Statement of Defence where she denied the averments in the Plaint except the descriptive and the jurisdiction of the court. She explained that she was one of the widows of the late Kakai Shura Tatek. She denied knowledge of facts directly relating to all the parcels of land known as LR No Kajiado/Kaputiei North/12884, 12885 and 14911 respectively as the same did not aect her. She insisted that there is need for the aforementioned parcels of land to be resurveyed. She contended that the portion of land where the Plainti stakes claim on, is the land registered and legally owned by her late husband and of which the Plainti has now fenced 118 acres of the same. She averred that her late husband was a member of Embolioi Group Ranch. Further, that upon completion of the adjudication and demarcation process of the said Group Ranch, her late husband was allocated his portion being Kajiado/Kaputiei North/704 measuring 95.3 hectares and a Title Deed issued to that eect. She further explained that on October 29, 1991, her late husband subdivided Kajiado/Kaputiei North/704 into Kajiado/Kaputiei North/1598 measuring 58.68 hectares and 1599 measuring 2023 hectares respectively. She stated that their land was neighbouring Kajiado/Kaputiei North/728 and Kajiado/Kaputiei North/819 respectively. She reiterated that from the time of allocation, their family had resided on their land without any interruption having constructed their family home and reared livestock therein. She explained that beacons did exist accordingly since 1991. Further, that her late husband including two co-wives Janet Kakai and Somoine Kakai are buried on the land. She claimed that in December, 2007, the Plainti entered their land, trespassed thereon and interfered with their quiet as well as peaceful occupation and purported to fence the whole land claiming it. She further averred that in May 2008 a meeting took place where the Plainti was informed of his illegal and unlawful acts of trespass but despite that he has continued with his wild claim over their family land. She rearmed that it is the Plainti who has illegally and or unlawfully committed numerous acts of omission and commission on their land with no apparent reasons. 4. The 2nd Defendant never entered appearance nor led a Defence despite being duly served. 5. The matter proceeded for hearing where the Plainti called two (2) witnesses while the 1st Defendant also had two (2) witnesses. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 2

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Evidence of the plainti 6. The Plainti as PW1 claimed to be the owner of land parcel numbers Kajiado/Kaputiei North/12884, 12885 and 14911, hereinafter referred to as the ‘suit lands’ and have Certicates of Title to that eect. He conrmed that he purchased the said parcels of land from the 2nd Defendant and paid the full purchase price. It was his testimony that he undertook search prior to purchase which conrmed the 2nd Defendant as owner of suit lands and adhered to the due process before acquiring them. He stated that an agent of the 2nd Defendant took him to the suit lands before purchase and showed him some dwellings which he told him were outside the said suit lands. He claimed the dwellings were mostly in Kajiado/Kaputiei North/ 12884 and slightly in Kajiado/Kaputiei North/12885 and they were less than one (1) acre. He testied that he was purchasing 118 acres and fenced it and the dwellings are isolated by their fence. He admitted that the 1st Defendant’s husband owned a large parcel of land next to his land which was almost 300 acres. In cross-examination he conrmed that he never bought land from the 1st Defendant. He admitted that he never went round the whole land and neither did the agent show him the beacons. He further admitted that he only saw the rough area and boundary. He never established that there were people on the suit lands. 7. PW2 Bibiana Omalla who was a licensed Surveyor from Arch Surveyors conrmed she visited the disputed land Kajiado/Kaputiei North/12884 and determined the boundaries. She conrmed that there was a family occupying the land measuring about 36.33 hectares. She explained that the boundaries of Kajiado/Kaputiei North/12884 and 12885 did not encroach on Kajiado/Kaputiei North/1599 and 1598 respectively. Further, that the boundaries were intact. In cross-examination she conrmed that the suit lands emanated from the Group Ranch. Further, that during the site visit, they never invited the elders and they relied on the Registry Index Map to determine the boundary. She explained that LR No Kajiado/Kaputiei North/12884 and 12885 emanated from Kajiado/Kaputiei North/1851. Further, that Green Card showed parcel number Kajiado/ Kaputiei North/1851 belonged to Moses Isaac. She further conrmed that she never called the neighbours at the time she was identifying the boundaries. She further explained there was a family within the suit lands but she did not ask them why they occupied it. In further cross-examination by the Court, she explained that there were general boundaries as they were not xed. Further, they looked for existing boundaries but some had to be scaled up. She admitted that the boundaries on ground tallied with what was on the green card and Registry Index Map (RIM) except the Eastern boundary. In re-examination she claried that it was not necessary to call the neighbours as it was not part of her brief. The Plainti produced the following documents as exhibits: Sale Agreement dated November 20, 2007; Certicates of Ocial Searches dated September 27, 2007 for LR No Kajiado/Kaputiei North/12884, 12885, 14911 and 15414; Green Cards for LR No Kajiado/Kaputiei North/1851, 4104 and 534; Various Maps; Applications for consent of the Land Control Board for LR No Kajiado/ Kaputiei North/12884, 12885 and 14911 all dated October 2, 2007; Consents to Transfer LR No Kajiado/ Kaputiei North/12884, 12885 and 14911 given by the Land Control Board; Title Deeds issued in the names of the Plainti for LR No Kajiado/Kaputiei North/12884, 12885 and 14911; Certicates of Ocial Searches for LR No Kajiado/Kaputiei North/12884, 12885 and 14911 conrming Plainti’s registration; Demand letters dated June 16, 2008 and September 17, 2008 to the Defendants and Plainti’s Surveyors Report on status of suit lands. Evidence of the 1st defendant 8. The 1st Defendant as DW1 testied in Maasai and stated that her late husband was a member of Embolioi Group Ranch that allocated him 300 acres of land and he was issued with a title deed which was later subdivided into LR No Kajiado/Kaputiei North/1599 and 1598 respectively. She testied https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 3

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that she had lived on the said land for 32 years. Further, that some of the beacons on her land exist while some have been uprooted. She stated that the Plainti bought land from Moses Rakita and Leshinga Ole Koyiet and must have gotten his land from Kajiado Kaputiei North/728 which has since been subdivided. She contended that the Plainti should have sued Moses Rakita to get a clear solution to this matter. Further, that the Plainti came and fenced o her land. It was her testimony she heard that the Plainti bought land from an Arab or Asian but an agent called David Ole Shanga erroneously showed him her land. 9. In cross-examination, she stated the Plainti did not purchase her two parcels of land but it is Moses Rakita who sold him land. She conrmed her land had been fenced o and she did not know the person who did it. She insisted that the Plainti should have sued Moses Rakita who is her neighbour as he got into her land. She claried that her land was still registered in the name of her late husband. Further, that the Plainti found her in her husband’s land. She explained that Surveyors came from Kajiado, undertook measurements of the land in the presence of all the neighbours and the Plainti was told the land belongs to her husband Kakai. 10. DW2 Sitelu Ole Seet stated that he is an ocial and member of Embolioi Group Ranch as well as a one-time Chairman. He conrmed knowing all the boundaries of the land as there was no dispute during subdivision of the land. He knew the 1st Defendant’s late husband. He stated that there are beacons between Moses Rakita and the 1st Defendant’s land as they neighbour each other. Further, that it is Moses who sold the land to the Plainti. It was his testimony that Kakai has never sold his land. Further, that the Ocials including DC and Surveyor came to the disputed site and he showed them the beacons. 11. In cross-examination, he said Rakita sold his land and he did not know who bought it. Further, that Kakai had never sold his land. He was emphatic that he resides in the area and showed ocials the beacons. He conrmed that the Plainti had fenced the Defendant inside their land. The 1st Defendant produced the following documents as exhibits: National ID Card for 1st Defendant; Death Certicate for Kakai Ole Shura; Extract of the Certicate of Titles for LR No Kajiado/Kaputiei North/704; Extract of Certicate of Titles for LR No Kajiado/Kaputiei North/1598 & 1599; Extract of Certicates of Title for Kajiado/Kaputiei North/728, 1850, 1851 & 1852 in the names of Moses Isaack Rakita; Extract of Certicate of Title for Kajiado/Kaputiei North/819 in the name of Leshinka Ole Simel Koyiet; Letter dated the October 27, 2018 from the Isinya Location Chief; Proceedings and Award from the Kajiado Land Disputes Tribunal case No TC. 456/06/08 on parcels of land known as Kajiado/Embolioi/ 34, 57 & 150 of August 7, 2008; High Court Ruling dated May 7, 2010; Court Order dated July 8, 2010; Letter from District Surveyor, Kajiado dated June 23, 2010; Report by a private surveyor Oltukai Survey & Property Agencies dated August 6, 2010; District Surveyor’s report dated September 28, 2010; Letter by 1st Defendant’s Advocates to District Surveyor dated October 26, 2010. Submissions Plainti ’s submissions 12. The Plainti in his submissions reiterated his evidence and contended that he conducted due diligence prior to the purchase of the suit lands. He explained that he lawfully acquired the suit lands and he is hence a bona de purchaser for value. Further, that the 1st Defendant did not controvert any evidence to prove it did not undertake due diligence nor adhere to other lawful processes while purchasing the suit lands. He argued that there is no evidence tendered by the 1st Defendant to challenge his registration or to warrant any contrary ndings to that eect. He insisted that there is nowhere in the history of https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 4

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the 1st Defendant’s two parcels of land that has anything to do with his titles. He contended that from evidence of PW2, there is no encroachment of his parcels of land to the 1st Defendant’s late husband’s land. He reiterated that the 1st Defendant’s claim of adverse possession is without legal basis. He argued that after fencing o the entire land, he made eective entry into it and took possession. Further, even if the 1st Defendant had occupied any part of the suit lands, such occupation was interrupted upon his entry. To support his arguments, he relied on Sections 25 and 26 of the Land Registration Act as well as the following decisions: Sangale Ole Langas v Stephen Mushish & Another (2018) eKLR; CA No 274 of 1997 KCB Ltd v Mwanzau Mbaluka & Others (1998) eKLR; J A Pye (Oxford) v Graham (2003) 1 AC _ 419 cited in approval in ELC Case No 120 of 2011 Charles Ngaruni v Zipporah Kathengu & 3 Others (2019) eKLR and James Mwangi & Others v Mukinye Enterprises Limited. 1st Defendant’s submissions 13. The 1st Defendant in her submissions argued that the Plainti had not proven his case to warrant the orders as sought as he entered into a bad bargain and should not use the court to rescue him from it. She made reference to various clauses in the Sale Agreement dated the November 20, 2007 and argued that the Plainti operationalized the Law Society of Kenya 1989 as the instrument providing for remedy which he should have explored. She stated that as per Clause 6 of the impugned Sale Agreement, the Plainti failed to conduct proper due diligence and from the dates of the Agreement, obtaining consent and executing transfer, the Plainti signed papers without actually verifying the properties he was buying. Further, he failed to establish beacons of the property when he was purchasing it as he admitted he was only shown one beacon. She insisted that the Plainti has failed to demonstrate how she encroached on the suit lands. It was her argument that vide a report dated the September 28, 2010 which was led in Court, it conrmed that the map did not reect on the position on the ground. She reiterated that the Plainti failed to discharge his burden of proof to prove his claim against her. Further, that as per the report dated the September 28, 2010, the Plainti fenced the land which belonged to her. She contended that even though the Plainti later led a private surveyor’s report, the District Surveyor’s report remains unchallenged. To support her averments, she relied on Section 18 of the Land Registration Act as well as the following decisions: Fina Bank Limited v Spares & Industries Limited (Civil Appeal No 51 of 2000) (unreported); Moses Parantai & Another v Janet Muritu & 3 Others (2018) eKLR and Robert Ouma Njoga v Benjamin Osano Ondoro (2016) eKLR. Analysis and determination 14. Upon consideration of the Amended Plaint, 1st Defendant’s Statement of Defence, testimonies of the witnesses, exhibits and rivalling submissions, the following are the issues for determination:Whether the Plainti is entitled to orders as sought as against the 2nd Defendant.Whether the 1st Defendant has encroached on the Plainti’s land.Whether the Plainti is entitled to the orders as sought against the 1st Defendant. 15. As to whether the Plainti is entitled to orders as sought as against the 2nd Defendant. 16. The 2nd Defendant despite being duly being served failed to enter appearance nor le a Defence to controvert the Plainti’s averments. The Plainti claims he purchased the suit lands from the 2nd Defendant and produced the Sale Agreement to that eect. He conrmed paying the full purchase price but contended that the 2nd Defendant sold him a less acreage land than what had been agreed upon. From perusal of the exhibits produced, I note the 2nd Defendant duly executed the Sale Agreement and Transfer Forms. Further, it aided the Plainti in obtaining the necessary consent to transfer the land after which the Certicates of Title were duly registered in the Plainti’s name. Since it did not deny selling to the Plainti, the less acreage of land as had been agreed upon, I nd that the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 5

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Plainti is indeed entitled to be compensated for it. In the circumstances, I nd that the Plainti is entitled to the orders as sought against the 2nd Defendant. 17. As to whether the 1st Defendant has encroached on the Plainti’s land and if the Plainti is entitled to the orders as sought against her. 18. The Plainti claims to be the owner of LR No Kajiado/Kaputiei North/ 12884, 12885 and 14911 respectively and holds Certicates of title to that eect which have been produced as exhibits. PW1 conrmed that he purchased the said parcels of land from the 2nd Defendant after undertaking due diligence and obtaining necessary consents. PW1 testied that an agent of the 2nd Defendant took him briey to the suit lands but he did not manage to go around the whole parcel of land because of its size. Further, that he only saw a rough area of the boundary and did not establish if there were people on the ground. It was his testimony that at the point he was at the suit lands, he noted that there were some structures nearby but he was reassured that they were not on the said suit lands. He conrmed that he proceeded to take possession and fenced o his land. The 1st Defendant as DW1 conrmed that her late husband was allocated 300 acres of land by Embolioi Group Ranch. Further, he was issued with a Title Deed for LR No Kajiado/Kaputiei North/704, which was later subdivided to Kajiado/ Kaputiei North/1599 and 1598 respectively. I note it is after the Plainti fenced o his land that a dispute ensued. From the testimonies of the parties herein, it is not in dispute that both the Plainti and the 1st Defendant hold Certicates of Title for their respective portions of the land and this is not an issue in dispute. I note as per the Ruling of this Court dated the 7th May, 2010, the Court identied the fulcrum of the dispute herein to revolve around boundaries to the Plainti’s and 1st Defendant’s parcels of land and advised the parties to engage the District Surveyor who was to le a report in 60 days. Further, on July 8, 2010, the parties herein agreed by consent that the time of ling the District Surveyor’s report was to be enlarged by 60 days from July 6, 2010. I have no reason to depart with this nding and will hold that the main issue in dispute is the boundary between the Plainti and 1st Defendant’s parcels of land. PW2 in her testimony stated that the Plainti’s boundaries were as per the RIM except for the Eastern boundary. However, upon cross-examination by the Court she admitted that there was no xed boundary between the Plainti and 1st Defendant’s land. Further, that there were boundaries on the ground which tallied with the RIM except the Eastern Boundaries. She admitted that there were fences, hedges-barbed wires and euphorbia in some area. She said she visited the suit lands but did not involve the elders. She did not attach the Registry Index map which she relied on to identify the boundaries of the Plainti’s land in her report. DW2 who was a former Chairman of the Embolioi Group Ranch where the suit lands had emanated from conrmed that the 1st Defendant’s husband owned the parcels of land where the 1st Defendant occupied. Further, that he was well conversant with the boundaries which he pointed out to the ocials. As per a letter dated the June 23, 2010 which was produced as an exhibit, the District Surveyor indicated that he would visit the suit lands on July 28, 2010. The District Surveyor prepared a report dated September 28, 2010 which was produced by the 1st Defendant as an exhibit. As per the District Surveyor’s report, he observed that the map did not reect the true position on the ground and recommended that what was found on the ground could not contain the subdivisions, unless the areas were reduced proportionally. I note after the District Surveyor’s report, the Plainti proceeded to engage a Private Surveyor called Arch Surveyor who also prepared a report dated November 18, 2019 that was presented by PW2. She also admitted that there was a shortage of land especially on the Eastern boundary to the suit lands. Which brings me to the question that if indeed there was a shortage of land, the Plainti having admitted that he never saw all beacons at the point of purchase of the suit lands, then how did he proceed to fence it o without allowing the Land Registrar to determine his boundary rst. In the case of Azzuri Limited https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 6

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v Pink Properties Limited [2018] eKLR, the Court of Appeal while dealing with an Appeal emanating from an issue of general boundaries held that: “ boundary disputes pertaining to lands falling within general boundary areas must be referred to the Land Registrar for resolution; while disputes pertaining to lands with xed boundaries may be investigated and possibly resolved simply through a surveyor. It was in appreciation of this provision that the learned Judge went on to hold in part that: “Having found an existing dirt road, which is a physical feature, and the Defendant’s wall in place, it was incumbent on the Plainti, to report any issue of encroachment by its neighbours to the Land Registrar so that he could x the boundaries and ascertain if indeed there was encroachment. Instead, the Plainti resorted to reporting the issue to the Assistant County Commissioner, Malindi who summoned the Defendant vide his letter dated December 30, 2014. When the eorts by the County Commissioner to resolve the dispute failed, the Plainti involved the District Surveyor who prepared a report, which is the basis of the current suit. The ling of the current suit before referring the dispute to the Land Registrar was contrastatute.” (23) 19. From this analysis of the law, it should be clear from the above that, we are in agreement with the learned Judge’s conclusion that the dispute ought to have been heard by the Land Registrar as stated in the statute.” In this instance, the Plainti did not demonstrate that once he realized there was a boundary dispute with the 1st Defendant, whether he proceeded to report to the District Land Registrar to determine the same as per his legal mandate, before fencing the 1st Defendant inside the disputed portion. Section 107 of the Evidence Act provides that: “ Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” 20. At this juncture, I opine that the burden of proof was upon the Plainti to demonstrate how he determined his boundary and found that the 1st Defendant had indeed encroached on his land. I note the District Surveyor including PW2 found there was an anomaly on the ground in terms of the sizes of the disputed lands, with PW2 referring to the said anomaly to be on the Eastern boundary. In so far as the Plainti insists he undertook due diligence before purchasing the suit lands, I do not nd that he has fully discharged his burden of proof to conrm the 1st Defendant indeed encroached on his land, since he failed to determine the existence of all the beacons before purchase. I note PW2 in proceeding to determine the boundaries failed to adhere to the required legal process of engaging neighbours as well as obtaining the history of the suit lands from the Embolioi Group Ranch ocials where the lands emanated from. In the circumstance, while associating myself with the decision, I have cited above, I nd that the 1st Defendant has not encroached on the Plainti’s as claimed. 21. It is against the foregoing that I nd that the Plainti has not proved his case against the 1st Defendant on a balance of probability and will dismiss it with costs. 22. As for the 2nd Defendant, since it did not enter appearance nor controvert the Plainti’s averment, I nd that the Plainti has proved his case against it on a balance probability and will enter Judgment in his favour. Further, since the Plainti already has his titles to the suit lands and took possession but the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 7

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only issue in dispute is the 17.35 acres which he claims from the 2nd Defendant, I will enter Judgment in the following terms: a. The 2nd Defendant be and is hereby directed to refund to the Plainti Kshs 8,675,000 being the value of the shortfall in acreage of 17.35 acres that it misstated at the point of sale. b. The amount of Kshs 8,675,000 to attract interest at court rates from the date of ling this suit until payment in full. c. The 2nd Defendant to pay the Plainti his Costs of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 2ND DAY OF MAY, 2023 CHRISTINE OCHIENG JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17116/eng@2023-05-02 8

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