Land - action for a permanent injunction to restrain the defendant from trespassing or otherwise interfering with the plaintiff's use of his land

Gilbert Seii v Fredrick K Cheserek & another

High Court, at Eldoret May 23, 2003

Nambuye J

Civil Suit No 264 of 1997

Land law - allotment – allotment of land by the Agriculture Development Corporation – where there is double allotment–– both allottees have not obtained title – whether the title reverts back to the Agriculture Corporation.

Evidence - witness - witness testimony – failure of witness to give testimony – where plaintiff relies on facts determinable by such testimony – whether the court can make a conclusive ruling.

The plaintiff was allocated 15 acres of land by the 2nd defendant, the Agricultutal Development Corporation, through its managing director.

The letter of allotment did not indicate the plot numbers but these were allegedly inserted subsequently by an employee of the 2nd defendant. The employee did not testify in court. The plaintiff made part payment but did not settle on the plots.

The 1st defendant was allocated 30 acres by the 2nd defendant at a later date and made part payment for the same. The plot numbers were the same as the plaintiff’s. Since neither party had title to the land, they referred the dispute to the 2nd defendant who confirmed that two of the three plots were to be allocated to the 1st defendant. The third plot was alleged to have been given to squatters but the 2nd defendant maintained that he had retained all 30 acres.

The 2nd defendant had not withdrawn the letter of allotment issued to the plaintiff nor had they refunded his money. The 2nd defendant was served but did not defend the suit. The plaintiff and the 1st defendant each wanted the suit plots to be awarded to them respectively.

Held:

1. Since neither party title to the land the reversionary title was still with the second defendant when the dispute erupted.

2. As the employee who had allegedly inserted the plot numbers did not testify for the plaintiff, the court could not conclusively rule that the plots had been properly allocated to the plaintiff.

3. The plaintiff assumed that each plot measured 5 acres making a total of 15 acres. The actual acreage was 30 acres and if awarded to the plaintiff, they would be in excess of his entitlement.

4. The balance tilted in favour of the 1st defendant as the person who should retain the 3 plots, but the plaintiff was still owed 15 acres by the 2nd defendant.

Cases

Cane Land Ltd v The Commissioner of Lands & 3 others Nairobi Civil

Appeal No 311 of 1998

Statutes

No statutes referred.

Arthur Matere Otieno v Dorina Matsanza

High Court, at Eldoret May 23, 2003

Nambuye J

Civil Case No 49 of 1994

Land law - allocation of land - allocation of land by the Settlement Fund Trustees - remedy available to the Fund in default of repayment – whether the Fund can repossess land which they have assisted to finance – section 174 of the Agriculture Act (cap 318) - cancellation of allocation of land by the Fund - where the Minister for Lands & Settlement has not received an application for re-allocation of land - whether it must be shown that the Minister approved the re-allocation - whether the proprietor of land whose allocation is cancelled needs to be personally served with notice - whether substituted service of notice is allowed under the Agriculture Act (cap 318).

Land law - sale of land - sale of land by an allottee holding a reversionary interest in the land - whether the allottee needs consent of the title holder to effect the sale.

Land law - controlled transactions - Land Control Board Consent – where the Land Control Board has not given consent after six months - effect on an agreement dealing with land.

Land law - adverse possession - how adverse possession pleaded in a suit - whether plea can be pleaded by way of counter-claim – whether originating summons the proper procedure - requirement of peaceful occupation for 12 years.

Dixon Matsanza, the husband of the defendant herein, was allotted the suit plot in 1964 which he acquired by using funds financed by the Settlement Fund Trustees. Certain conditions were attached to the allotment, one of which was for the allotee to take up possession and start developing the land.

Allegations were made that the plot had been abandoned and people who were interested in it started applying to the Minister for Lands and Settlement to be allotted the plot. This prompted the officers of the Ministry to issue a notice to the allottee to remedy the breach failing which the plot would be repossessed.

It transpired that Dixon Matsanza, the original allottee, had gone overseas for further studies but had left the defendant and his seven children behind. No officer confirmed that the notice was personally served. It was pinned on a tree in the farm. In a letter dated 15.3.1976, the Area Settlement Controller cancelled the allotment of the suit plot for failure to remedy the breach of conditions. The cancellation was alleged to have been made on the directives of the Settlement Fund Trustees.

Following the cancellation, the plot was reallocated to one Abdul Rahman Musa who later sold it to the plaintiff.

Upon the death of Dixon Matsanza, the defendant became the legal representative. It was the plaintiff’s allegation that the defendant knew and accepted the conditions given by the Ministry of Lands and Settlement as evidenced by her signature on the certificate of acceptance. The plaintiff also alleged that the defendant had not paid the loan given by the Settlement Fund Trustees which was meant to be repaid within 10 years. The plaintiff further averred that the defendant never developed the land and had deserted it and that is why the land was repossessed. She only put up a temporary structure when she learned she was no longer the owner of the land. The plaintiff asserted that he followed the correct procedure to acquire the land and the defendant should be evicted.

The defendant’s key averments were that the said land was allotted to her deceased husband who left for the United States of America after he had constructed a house on the land which the family had been using uninterrupted. It was her contention that if the land had been registered in the name of the plaintiff, this had been fraudulently done and the register should be rectified. The defendant further averred that she had been in possession of the land for over 30 years without interruption hence her name should be reflected on the title which she had acquired through adverse possession.

Held:

1. The Settlement Fund Trustees are not empowered under section 174 of the Agriculture Act (cap 318) to reposses land which they have assisted to finance.

2. The only remedy available to the fund in event of default of repayment is an action to recover monies due to it through civil debt collection procedure.

3. Cancellation of allocation of land by the Settlement Fund Trustees is improper if the Minister for Lands and settlement has not received a letter of application from any person wishing to be re-allocated land. It must be shown also that the Minister approved the second reallocation.

4. For cancellation of allocation of land to be proper it is a requirement that the proprietor of the land should be personally served with notice.

5. Nothing under the rules made under subsidiary legislation of the Agriculture Act (cap 318) allows for substituted service of notice.

6. An allotee holding a reversionary interest in land can only sell with the consent of the title holder.

7. If the Land Control Board has not given the requisite consent within 6 months, a renewal of the agreement to deal with the land or a fresh agreement has to be entered into.

8. In a plea of adverse possession, there should be peaceful occupation for at least 12 years, which starts running with respect to titles of parties to the suit only.

9. A plea of adverse possession cannot succeed if it is advanced by way of counter claim in a suit. It must be advanced by way of originating summons.

10. (Obiter) A prudent purchaser of land should make a physical inspection on it and carry out inquiries to see if the title is clean or not. If this is done then he will be presumed to have purchased the property with full knowledge of the existence of the dispute on it. The plea of an innocent purchaser will not hold in such an instance.

Suit dismissed.

Cases

No cases referred to.

Statutes

1. Trespass Act (cap 294)

2. Agriculture Act (cap 318) sections 167, 168(3), 171, 172, 174,

Advocates

M/s Kaplan & Stratton Advocates for the Defendant.