JUDGMENT OF KIAGE, JA
1.By this appeal, the appellants who were defendants in the Environment and Land Court at Kakamega, challenge the judgement and decree of Matheka, J by which the learned judge found that the respondent had proved his case on a balance of probabilities and granted him the orders sought. The respondent had lodged a suit against the appellants seeking the following orders;a)A declaration that the plaintiff is the lawfully registered absolute proprietor of Land Parcel No Butsotso/Shikoti/1281.b.An eviction order against the defendants, their agents, servants, employees from Land Parcel No. Butsotso/Shikoti/1281 and a permanent injunction restraining the defendants, their agents, servants, employees or any other person claiming through them once evicted from trespassing and/or laying claim to Land Parcel No Butsotso/Shikoti/1281.c.Costs of the suit.d.Interest on (a) and (b) above at court rates.
2.The salient facts of the case were that the respondent was the registered proprietor of land parcel no. Butsotso/Shikoti/1281 (the suit land). He claimed that he bought the suit land from one Christantus Muleka Ikocheli (the vendor) who was the son and administrator of the estate of the original owner, Teresina Linani Ikocheli (Teresina). When he purchased the land, he claimed, he found the appellants, who were father and son, occupying it together with other persons who were defendants in the trial court. The respondent contended that the appellants had unlawfully and without his consent trespassed onto the suit land, demarcated it and apportioned themselves various portions thereof which they put to their use.
3.The appellants denied trespassing on the land stating that they had been in occupation of it since the year 1964 or thereabouts and, accordingly, the respondent’s claim was time- barred. They contended that the respondent had no good title to the suit land as he had acquired the same from a person who had no good title to pass. The appellants alleged that the respondent’s acquisition of title to the suit land was by fraud for reasons that, the land was purchased secretly and with full knowledge that the appellants and their families resided thereon; the land was purchased from a person who had no power to dispose it off; no inquiry was made as to the status of the appellants with regard to the suit land before purchasing it; and legal proceedings for acquisition of title to the land were not followed.
4.During trial, the respondent gave a sworn statement and called 2 witnesses. The 1st appellant chose to rely on his written statement. The record bears evidence for the 2nd appellant. The learned judge evaluated the evidence adduced and delivered the impugned judgment granting the respondent the reliefs sought.
5.The appellants were aggrieved and after filing a notice of appeal they followed it up with a memorandum of appeal raising 8 grounds, later condensed to 4 issues for determination as follows:-
- Whether at the time the respondent purchased the suit property the appellants were in occupation of the land.
- If the answer to the foregoing issue is in the affirmative whether the respondent was entitled to the orders sought for eviction.
- Whether the respondent was an innocent purchaser for value without notice.
- Whether fraud was properly pleaded and particularised.
6.The parties had filed written submissions which were highlighted by counsel at the hearing of the appeal.
7.Learned counsel Mr Shitsama appearing for the appellants, challenged the appellants’ eviction arguing that the respondent did not prove his case on a balance of probabilities. He submitted that both the respondent and the vendor of the suit land admitted that when the respondent purchased the land the appellants were in occupation. In counsel’s view, since it was established that the 1st appellant was in possession of the land since the year 1985 upto the year 2003 when the suit was filed, his rights over the land were in the nature of an overriding interest pursuant to section 28 of the Land Registration Act, 2012.
8.It was argued that the respondent was not an innocent and/or bona fide purchaser for value, without leading evidence to prove that fact. Reference was made to sections 107(1), 109 and 112 of the Evidence Act for the contention that he who pleads the existence of a fact must prove it, and when any fact is especially within the knowledge of any party to proceedings, the burden of proving or disproving that fact is upon him. Counsel questioned the fact that two agreements were made in selling the suit land, one in the year 2003 and another in 2006. He wondered how the learned judge determined which agreement to rely on. Mr. Shitsama pointed out the entries in the land register (the green card) which seemed erroneous. The entries indicate that the vendor was registered as proprietor of the suit land on January 7, 2004, and the respondent was registered proprietor on June 23, 1999.
9.It was further argued that the respondent purchased the suit land from someone who had no good title. Citing sections 82(a) and 45 of the Law of Succession Act, counsel contended that a personal representative of an estate is not empowered to alienate or sell the property of the deceased person before distribution. He asserted that since the 1st appellant moved onto the suit land in the year 1985 and stayed there till the year 2003 when the respondent sued him, a period of over 18 years had lapsed hence the suit was time barred by dint of section 7 of the Limitation of Actions Act. Moreover, counsel submitted, a claim for adverse possession was raised by the appellants but the learned judge overlooked it, even though neither the respondent nor the vendor had ever been in possession of the land.
11.The learned judge was faulted for ignoring the issue of fraud as pleaded by the appellants. It was contended that even though the learned judge found that the green card had no contradictions, the entries therein did not make sense. Further, no transfer documents were presented in court to establish the respondent’s legal acquisition of the suit land. In conclusion, counsel urged the Court to set aside the orders of the trial court and allow orders for adverse possession, stating that the 1st appellant is now deceased and had been buried on the suit land.
12.In opposition to the appeal, learned counsel Mr Nandwa gave a brief background to the case noting that the first registered owner of the suit land was Josina Linani who later registered a change of names to be known as Teresina Linani Ikocheli. Upon the death of Teresina, the land devolved to her son who sold it to the respondent. Counsel submitted that the 1st appellant forcefully moved onto the land in the misdirected belief that Teresina, who was his step-sister, was not entitled to the land as a woman.
13.Mr Nandwa asserted that even though the 1st appellant had been in occupation of the suit land since 1985, that occupation was not adverse to that of the land owner as he was permitted to occupy the land by the proprietors. Further, the respondent had offered 0.25 of an acre to the appellants upon their request, which comprised the area they occupied to settle on but he withdrew that offer when they refused to accept it.
14.Counsel resisted the 1st appellant’ s claim that the suit land was held by Teresina, his step-sister, in trust for him, contending that it came out during the hearing that the 1st appellant had refused to pursue his own parcel, and he owned a different parcel of land where he had buried his wife. Mr Nandwa contested the claim for adverse possession pointing out that an originating summons suit by the appellants claiming adverse possession was withdrawn and as such there was no cause of action for adverse possession before the trial court.
15.As to whether the respondent was an innocent purchaser for value without notice, it was asserted that the burden of proof lay upon the appellants, to demonstrate that the acquisition of the suit land by the respondent was fraudulent as alleged, and they failed to do so. Moreover, it was submitted, if the fraud allegations were valid, the appellants failed to initiate any criminal proceedings on the respondent over the same. In the end, counsel urged that the appeal be dismissed with costs.
17.Having considered the appeal and the opposing submissions, I think the single issue that falls for determination is whether the respondent was entitled to the orders granted by the trial court. In her judgment, the learned judge declared the plaintiff as the lawfully registered absolute proprietor of the suit land. She further ordered the defendants, their agents, servants and employees to vacate the land within 3 months from the date of the impugned judgment and in default eviction notice to issue.
18.The appellants contest the respondent’s ownership of the suit land arguing that since it was established that they occupied the said land from the years 1985 to 2003 when the suit was lodged, they had an overriding interest over the land in the nature of adverse possession pursuant to section 28 of the Land Registration Act, 2012. The respondent refutes that claim asserting that the 1st appellant occupied the land forcefully on the premise that the original owner, as a woman, was not entitled to the land. Further that the 1st appellant was allocated his own portion of land but failed to pursue it. To the respondent therefore the appellants occupied the suit land by way of permission from the proprietors.
19.The learned judge, upon considering the two facts of adverse possession, that is, whether or not the title holder has been disposed or has discontinued his possession for the statutory period, came to the conclusion that the 1st appellant occupied the suit land with the permission of the respondent. I am of a similar mind as the learned judge and would add this Court’s sentiments in Richard Wefwafwa Songoi v Ben Munyifwa Songoi  eKLR, where the Court observed;
20I agree with the learned judge’s finding particularly after analysing the evidence of the vendor (PW2) which was uncontroverted. He stated;
21.It would seem that the 1st appellant sought to be allowed to stay on the suit land but eventually refused to move out. It is clear to me that such conduct cannot possibly be what was contemplated as an overriding interest under section 28 of the Land Registration Act. Moreover, there is no evidence that the appellants pursued an adverse possession cause of action in the trial court.
22.The appellants fault the learned judge for failing to consider their contention that fraud was involved in the sale of the suit land. To them, the respondent was not a bona fide purchaser for value since he must have noticed the fraud. I note that even though the learned judge may have disregarded that issue, no credible evidence was led to substantiate the claim. No report was made to the Police to investigate the matter and neither were criminal proceedings lodged against the suspects. I associate myself with the holding of this Court in Moses Parantai (supra). The court held;
23.In the end I see no reason to interfere with the learned judge’s findings. The appeal is therefore devoid of merit and I would accordingly dismiss it with costs.As Tuiyott and Joel Ngugi, JJA are of the same opinion, it is so ordered.