Shan v Nyanumba & 2 others (Environment & Land Case 402 of 2014) [2024] KEELC 1029 (KLR)

fraudulently obtained the title to the parcel No. 5853. In the counterclaim they asked for orders for a nullification of the plaintifi’s title No. 5853 and a permanent injunction to restrain her from the parcel No. 5836. 3. The 3rd defendant, the Land Registrar, Kisii County, did not enter appearance nor participate in the suit. 4. The case was listed for hearing on 3 November 2022. The plaintifi did not attend court and her suit was dismissed for non-attendance. That therefore left the counterclaim for hearing and both defendants testified in support thereof and called one witness. Mr. G.J.M Masese, learned counsel for the plaintifi, did not avail himself to court for cross-examination and they thus testified ex parte. 5. In his evidence, the 1st defendant testified that he purchased a portion of the land parcel No. 4948 from the 2nd defendant through a sale agreement of 10 June 2014. He subsequently obtained title to the said portion as the parcel No. 5836. He stated that he took possession and fenced the land with a brick wall and has been farming in it. He testified that he has never seen the plaintifi and does not know her. He denied trespassing into her land. He stated that he does not know where her land is located. He also made reference to the documents that the plaintifi had filed to support her case. He pointed out that the sale agreement that the plaintifi filed showed that she was purchasing a portion of the land parcel West Kitutu/Bomatara/2879 (parcel No. 2879) and not a portion of the land parcel No. 4948. He further made reference to the mutation form that the plaintifi intended to rely on that was a mutation for the parcel No. 4948 which shows the land being subdivided into the parcels No. 5852 and 5853. He testified that the plaintifi could not have purchased a portion of a parcel No. 2879 and obtain her title from a mutation of the parcel No. 4948. 6. The 2nd defendant in his evidence afirmed that he sold part of his land to the 1st defendant. He stated that he does not know the plaintifi and has never sold land to anybody bearing her name. 7. I was of opinion that it would be useful to get the evidence of a surveyor since there was a claim of superimposition of title. The 1st and 2nd defendants proceeded to call Prescot Nyakang’o as their witness. He testified that he is a surveyor, holding a Diploma in Survey from Kenya Polytechnic, and that he worked as a Government Surveyor between 1985 and 2016 when he retired. He testified that he visited the land parcel No. 5853 and he found that it has a wall and gate put up by the 1st defendant. He produced a report to that efiect. That report merely confirms the existence of the parcel No. 5853. He however did not have the Registry Index Map so as to demonstrate the location of the parcel No. 5853 or its existence. I gave him time to produce it but he was never called back to testify and the 1st and 2nd defendants closed their case on the above evidence. 8. Mr. Ochwangi, learned counsel for the 1st and 2nd defendants, filed written submissions to urge his clients’ case. I have taken note of these submissions before arriving at my disposition. 9. It will be recalled that the plaintifi’s case was dismissed and that only leaves the counterclaim for determination. In my opinion, in order to succeed in the prayer for nullification of the title of the plaintifi, the 1st and 2nd defendants need to demonstrate that the land parcel No. 5853 does not exist in the registry index map and in the records of the land registry. I regret that the evidence that they provided is insuficient in this regard. First, nobody from the Land Registry was called to testify on the existence or lack of existence of title to the land described as West Kitutu/Bomatara/5853. Secondly, no Registry Index Map of the area was produced to demonstrate that there is no title registered as West Kitutu/Bomatara/5853. The evidence of the surveyor does not help much because all he did was afirm that the land parcel West Kitutu/Bomatara/5836 exists and that it is occupied by the 1st defendant. He never brought any evidence of whether or not the land parcel West Kitutu/Bomatara/5853 exists or https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1029/eng@2024-02-28 2

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not. That being the position, I cannot make any declaration that the title West Kitutu/Bomatara/5853 does not exist or that it was illegally created. 10. The other prayer of the 1st and 2nd defendants is for an order of permanent injunction to restrain the plaintifi from the land parcel West Kitutu/Bomatara/5836. In their evidence, the 1st and 2nd defendants stated that they do not know the plaintifi. There was no allegation made that the plaintifi has ever come to the land parcel West Kitutu/Bomatara/5836 to disturb the possession of the 1st defendant or to claim the ground where it is located. The pleadings of the plaintifi seem to suggest that she claims land which has fully matured trees. On the other hand, the surveyor’s report produced by the 1st and 2nd defendants identifies the land of the 1st defendant as one which is walled and is planted with subsistence crops. I have no evidence that the plaintifi was claiming the same ground where the title of the 1st defendant lies. This court does not issue orders in vain where there is no dispute. One only seeks orders in court where there is an infringement of right by the person sued. In our case, I have no evidence that the plaintifi has infringed on any of the proprietary rights of the 1st defendant within the land parcel West Kitutu/Bomatara/5836. 11. Without any tangible evidence from the maps and the Land Registry records, it could very well be that the land parcel West Kitutu/Bomatara/5853, exists difierently and distinctly from the land parcel West Kitutu/Bomatara/5853. 12. Given the above it is pointless issuing an order of permanent injunction against the plaintifi. The long and short of it is that I am not persuaded that the 1st and 2nd defendants have made out any case against the plaintifi and I must dismiss their suit. 13. Thus, both the plaintifi’s suit and the counterclaim of the 1st and 2nd defendants, are dismissed. In essence, this court has not been persuaded to make any orders for or against the plaintifi, or the 1st and 2nd defendants. 14. The only issue left is costs. I make no orders as to costs. Judgment accordingly. DATED AND DELIVERED THIS 28 DAY OF FEBRUARY 2024 JUSTICE MUNYAO SILA JUDGE, ENVIRONMENT AND LAND COURT AT KISII Delivered in the presence of: No appearance on the part of Mr GJM Masese for the plaintifi Mr. Ochwangi for the defendants - Present Court Assistant – David Ochieng https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1029/eng@2024-02-28 3

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