Amba v Okoyo

g. Such other or further relief order of this Honourable court may deem t and just to grant in the circumstances. 2. The originating summons is founded upon the plainti’s supporting adavit of sixteen paragraphs sworn on even date. Briey, the plainti’s complaint is that during adjudication in 1970’s, his father, Amba Ongondo-Deceased-1, acquired Land Reference No. Gem/Kanyanjwa/399 which is adjacent to the suit land. That upon the death of Deceased-1, the plainti took charge of his estate as his only son and has been utilizing and possessing both parcels of land as one whole parcel for over 40 years. That the suit land is registered in the name of Peter Okoyo Nyajowi alias Okoyo Nyajowi -Deceased 2. That suddenly, the defendant who is the son to Deceased-2, entered the suit land and erected a structure thereon hence, holds the suit land in trust for the plainti. 3. By the replying adavit of ten paragraphs sworn on 23rd July 2018 with the accompanying documents being certicate of death in respect of Deceased-2, title deed of the suit land and chief’s letter marked as ‘AO-1, AO-2 and A0-3’ respectively, the respondent/defendant who appears in person, opposed the originating summons and prayed for dismissal of the same with costs. He averred, inter alia; a. That he is the only surviving son of Deceased-1 who is the sole registered proprietor of the suit land (vide copies of Death Certicate and Title Deed annexed and marked “AO-1” and “Ao2”. b. That the plainti is the only son of deceased-1 who is the sole registered proprietor of land parcel No. Gem/Kanyanjwa/399 and therefore the plainti is the sole beneciary of his father’s interest (vide copy of Chief’s Letter dated 22nd January 2018 annexed and marked “AO-3”) c. That although two parcels are contiguous to each other sharing a common boundary the plainti has on various occasions made false claims to a portion of the suit land but four dierent surveyors have on dierent occasions conrmed the M. boundary between the two parcels of land and assisted in planting sisals to mark the boundary but the plainti each time uproots the same. d. That notwithstanding the above neither the plainti nor the defendant have obtained a grant of letters of administration to the estates of Deceased-1 and Deceased-2 and therefore the plainti has no locus standi to institute this suit. 4. The plainti (PW1) testied that the suit land was owned by Deceased-1, This was corroborated by his wife, EVELYNE AUMA TOWE (PW2) and PW3, JOEL OTIENO OGUTA, the then Chief Gem West Location, Rangwe who testied that the suit land belonged to Deceased-1 who was the father of PW1. That thereafter, Deceased-2 took it away and registered the same in his own name. 5. The Defendant (DW1) told the court that the suit land belonged to Deceased-2 in whose name the same is registered. Both DW2, Sharon Anyango and Alfred Omondi Okoyo (DW3) reinforced this piece of evidence that the suit land belonged to Deceased-2. 6. On 4th October 2024, the parties informed the court that they did not wish to le submissions in this suit. 7. After hearing the parties, on 20th January 2021, the court referred this dispute to the Deputy County Commissioner Rangwe Sub County for possible amicable settlement pursuant to Article 60 (1) (g) and 159 (2) (c) of the Constitution of Kenya 2010. However, the parties failed to arrive at an amicable settlement as captured in the Deputy County Commissioner’s letter dated 2nd February 2022 and noted in the court’s proceedings of 2nd March 2022. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13879/eng@2024-12-16 2

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8. Surveyor (National) Homa Bay County led a report dated 6th March 2024 further to court directions of 25th September 2024. The same is to the eect that the boundaries of the suit land are clear and intact on the ground. 9. It is established law that the issues for determination arise out of the pleadings of the parties or as framed by the parties for the court’s determination; see Great Lakes Transport (U) Company Ltd-vs-Kenya Revenue Authority (2009) KLR 720. 10. Order 15 of the Civil Procedure Rules 2010 provides for framing of issues and materials from which issues may be framed. I bear in mind the plainti’s/applicant’s issues dated 12th April 2018 including whether the plainti has been in actual occupation and use of a portion of the suit land and whether anyone has ever interrupted the peace of the plainti over the same portion of land… 11. In the foregone, the issues for determination boil down to whether; (a) the plainti and the defendant have the locus standi to sue and be sued respectively herein. (b) Subject to issue (a) hereinabove, has the plainti proved that he has acquired the suit land by adverse possession and (c) Is the defendant holding the suit land` in trust for the plainti? 12. At paragraph 8 of the Replying adavit, the defendant raised the issue of locus standi in relation to the plainti and himself. In the case of Alfred Njau & others-vs-City Council of Nairobi (1982-88) 1 KAR 229, the Court of Appeal held; ‘……..locus standi is the right to appear or be heard in court or other proceedings………..’ 13. It is trite law that a litigant is clothed with locus standi upon obtaining a limited or full grant of letters of administration in cases of intestate succession; see Rajesh Pranjivan Chudasama-vs-Sailesh Pranjivan Chudasama (2014) eKLR and Trouistik Union International and another-vs-Jane Mbeyu and another (1993) eKLR. 14. In section 2 of the Civil Procedure Act Chapter 21 Laws of Kenya, the term ‘Legal Representative’ means a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. 15. It is common ground that the plainti and the defendant are not legal representatives of the estates of deceased-1 and Deceased-2 respectively. Thus, they lack locus standi in this suit. 16. As regards adverse possession, the essential ingredients thereof are well settled; see Wambugu-vsNjuguna (19830 KLR 172. 17. Also, the claimant must not have the permission of the owner of the suit property to be thereon and no steps taken to repulse or eject the claimant from the property for the statutory period of 12 years as stipulated under section 38 of the Limitation of Actions Act Chapter 22 Laws of Kenya; see Elijah O.L Opar-vs-Tobias Odhiambo Abach (2019) eKLR. 18. Concerning trust, the same is a question of fact to be proved by way of evidence; see Mumo-vs-Makau (20020 1 EA 170. 19. Section 28 of the Land Registration Act 2016 (2012) sets out overriding interests over registered land. The same include; adverse possession and trusts. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13879/eng@2024-12-16 3

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20. As already observed in paragraph 15 herein-above, the plainti and the defendant have no locus standi in this suit. In the circumstances, the issues of ownership of the suit land by adverse possession and trust are premature and cannot hold. 21. In the premises, the suit is a non-starter, incompetent and fails. 22. Wherefore, the instant suit generated by way of the originating summons dated 12th April 2018, be and is hereby struck out with no orders as to costs. 23. It is so ordered. DATED AND DELIVERED AT HOMA BAY THIS 16TH DAY OF DECEMBER 2024 G. M. A ONG’ONDO JUDGE PRESENT; 1. Plainti in person 2. Defendant in person 3. Luanga and Obunga, Court assistants https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13879/eng@2024-12-16 4

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