Barnaba Ouma Wafula & 3 others v Chief Bukhayo Central & 13 others [2013] KEHC 2231 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

CIVIL CASE NO. 29 OF 2007.

1.  BARNABA OUMA WAFULA   )                                                              

2.  MORRIS OYULA MAKANDA  )…………………………PLAINTIFFS

3.  RODGERS JOAB WAFULA    )                                                               

4.  EMMANUEL OSONGU MAKANDA)                                                       

VERSUS

 1.  THE CHIEF BUKHAYO CENTRAL          )……………1^ST DEFENDANT

2. ASSISTANT  CHIEF MALANGA SUB-LOCATION…2^ND DEFENDANT

3. HON. ATTORNEY GENERAL & 11 .OTHERS)……2^ND DEFENDANT

(CONSOLIDATED WITH BUSIA HCCC. NO. 8 OF 2010 - FORMERLY  KAKAMEGA HCCC. NO. 184 OF 1995 – BARNABA OUMA WAFULA AND ANOTHER  VS COUNTY COUNCIL OF BUSIA)

J U D G M E N T.

            BARNABA OUMA WAFULAand  MORRIS OYULA MAKANDA  filed  Kakamega H.C.C. No. 184 of 1995 against County Council of Busia on 18^th September, 1995.  They prayed for the Defendant’s registration with Bukhayo/Malanga/619  to be cancelled, alleging that the registration was obtained fraudulently. They also prayed for injunction against the defendant and in the alternative they be compensated for the land.

            The Defendant filed their defence through M/S. Balongo& company advocates denying the allegation of fraud and averred that their registration with Bukhayo/Malanga/619, being a first registration,was  sacrosanct.

            An amended plaint was later filed dated 15^th April, 2009 bringing  in two additional plaintiffs, namely Rodgers Joab Wafula and Emmanuel Osungo Makanda as the 1^st and 2^nd plaintiff and the original two as the 3^rd and 4^th plaintiffs.  The amended plaint was served on counsel for the Defendant.

            The hearing commenced before the Resident Judge, Kakamega  and the 1^st  plaintiff’s evidence was taken as PW 1 on 23^rd November, 2009. The 2^nd plaintiff testified as PW 2  on the same day. Thereafter  an order was made for the Land Registrar  to establish the boundaries and acreage of land parcels Bukhayo/Malanga/160, 162 and 619 and report be filed in court.

            The file was then transferred to this court on 16^th February, 2010 and  given reference  Busia H.C.C.C. No. 8 of 2010.  On 24^th February, 2010 an order  was made consolidating  Busia HCCC NO. 8 of 2010 with Busia H.C.C. No. 29 of 2007. It is now in Busia H.C.C. No.29 of 2007 that the rest of the proceedingshas  taken place.

            In case  No.29 of 2007 the plaintiffs are the same to those in Busia H.C.C. No. 8 of 2010 formerly Kakamega  HCC. No.184 of 1995.The  Defendants are 14 in number as listed herein below.

1.  Chief, Bukhayo Central
2.  Assistant Chief Malanga sub-location.
3. The Hon. Attorney General.
4. George Ongaya
5. Boaz Owase.
6. Gregory Ouma
7. Maurice Mutimba
8. William Muyodi
9. Anselim Abondo.
10.  Hezron Awour.
11. Busera Wadenya.
12. Oduor Alaja.
13.   Wilson  Wamalwa.
14. Fredrick Kwedho.

            The four plaintiffs prays for Permanent  injunctions against Defendants in respect  to Land parcels Bukhayo/Malanga/160, 162 and 619,mesne profits, de-registration of Bukhayo/Malanga/619 and  reinstatement of original boundaries, costs and interests.

            A defence dated 15^th November, 2007 for the 3^rd defendant,  described as third party,  was filed in Busia HCC. NO. 29 of 2007 by M/S. Balongo& company Advocates on the 15^th November, 2007 denying the plaintiffs claim. This defence appears misplaced as County Council  of Busia who are the defendant in Busia  HCCC. No.8 of 2010 were not named as Defendants in Busia HCCC No. 29 of 2007.A defence dated 13^th November, 2008 was later filed by the  Litigation Counsel  for the Attorney general who is the third defendant in Busia HCC. No.29 of 2007. The Attorney General avers that Bukhayo/Malanga/619 is registered  in the names of County Council of Busia as a first registration and that it was not fraudulently created from Bukhayo/Malanga/160 and 162 as alleged.

            When the consolidated matters came before me for hearing on 9^thMay, 2013 the four plaintiffs and M/S. Jumba for the Defendant agreed that the  hearing proceed from where it had reached. The plaintiffs then closed their cases and defence hearing commenced on 18^th June, 2013 with the Land Registrar testifying as DW 1. He producedcopies of green cards for parcel Bukhayo/Malanga/160, 162 and 619 and survey map for Bukhayo/Malanga registration section covering thethree parcels of land as exhibit 1 and 2 respectively. He also produced a copy of the report prepared by the then District Surveyor and Land Registrar dated 4^th April, 2011.

            The fifth Defendant then testified as DW 2 after which defendants closed their case. The third plaintiff then filed submissions for himself and the other plaintiffs while Mr. Jumba advocate filed submissions for the Defendants.

            From the pleadings in the two cases described herein above, the following are the issues that need to  be determined:

1. Who are the registered owners of Land parcels Bukhayo/Malanga/160, 162 and 619.
2. Did Land parcel Bukhayo/Malanga/619 come from Bukhayo/Malanga/160 and 162, and if so, was the  process fraudulent.
3. Whether the registration of land parcel Bukhayo/Malanga/619 should be revoked and the land returned to the owners of land parcels Bukhayo/Malange/160 and 162.
4. Whether the plaintiffs are entitled to the orders or any of the orders prayed for in the two suits.

            After  carefully considering the evidence  adduced by Rodgers Joab Wafula and Emmanuel Osongu Makanda who testified as PW 1 and PW 2 and the evidence of Land Registrar (DW1) and 5^th Defendant  (DW 2) the court finds as follows;

1. That the copies of the Official Search and green card for the three parcels of land Bukhayo/Malanga/160, 162 and 619  produced by  the plaintiffs had indicated the sizes  of the parcels as 5, 8 and 1.8 hectares respectively while those produced by DW 1 indicated the  sizes were 5, 8, and 1.8 acres respectively.
2. That the official sizes of the three parcels Bukhayo/Malanga/160, 162, and 619 are 5, 8 and 1.8 acres and not 5, 8, and 1.8 hectares respectively
3. That Land parcel Bukhayo/Malanga/160 belongs  to Morris Oyula and Makanda Oyula who were registered on first registration on 1^st October, 1968.
4. That land parcel Bukhayo/Malanga/162 is registered  in the names of Baranaba Wafula and Ouma Wafula as first registered owners  on 1^st October, 1968.
5. That land parcel Bukhayo/Malanga/619 is registered in the name of County Council of Busia on first registration on 1^st October, 1968.
6. That the details of registration set out in 3, 4 and 5 above shows clearly the three parcels  of land were registered  on first registration on the same date, 1^st October, 1968.
7. That the court has not been given evidence that shows land parcel Bukhayo/Malanga/619 was excised from parcels Bukhayo/Malanga/160 and 162 exclusively or at all.
8. That the court takes  judicial notice that during  the process of land consolidation and adjudication, land  set aside by communities for public use  was routinely registered in the names of local authorities responsible  for the areas the land was situated. Such  land set aside, may at times have been for specified or general public use and the local authority  would hold the title in trust for the community. The court finds that County Council of Busia was registered with Bukhayo/Malanga/619 as trustee for the community.
9. That there  is no evidence adduced by the plaintiffs  to show that there was fraud  attributable to the Defendants or any of the Defendant  in the process of setting aside and  registering  Bukhayo/Malanga/619 in the names  of County Council of Busia, as it was and still is reserved for community use.

     10.That the absence of physical boundaries on the ground  did not  mean  land parcel  Bukhayo/Malanga/619 did not   exist on the ground, or that it was part of land parcel   Bukhayo/Malanga/160 or 162, alleged by the plaintiffs.

     11.That  the confusion as to  the boundaries of land parcels Bukhayo/Malanga/160, 162 and 619 may have been   caused or contributed by the contents of the green cards and search certificates which had reflected the sizes in   hectares instead  of acres.The plaintiffs may have been misled to believe their parcels of land were bigger than  they were on the ground by the contents of the copies  of  the green cards and certificates of official searches which    had been issued to them by the lands office erroneously   indicating the sizes in hectares.  This has now been   clarified   through  the evidence of DW 1.

     12.That any of the plaintiffs or any other person who had  been aggrieved by the decision to register land parcel  Bukhayo/Malanga/619 with County Council of Busia  as  trustee for the community was required under the        provisions of section 26 and 29  of the Land  Adjudication   Act Cap 284  of Laws of Kenya  to lodge an objection or  appeal  to the adjudication officer  or minister within the   time stipulated. There is nothing presented in this case to show that the plaintiff’s or any other person filed an   objection or appeal against the decision to register Bukhayo/Malanga/619 with County Council of Busia.

    13.That no evidence of fraud was adduced by the plaintiffs in relation to the setting aside and registering Land parcel  Bukhayo/Malanga/619 with County Council of Busia and  the registration  cannot be interfered with.

         That from the foregoing, Land parcel Bukhayo/Malanga/619  was registered in the names of County Council  of Busia on  first registration in trust for    the community in the area the land is situated.  It is meant for public use, and for avoidance of doubt, is not part of Bukhayo/Malanga/160  or 162.The plaintiffs have failed to prove theircase  against the  fifteen (15) Defendants or any of the Defendants to the standard required and their case is dismissed with orders that each party bear their own cost as the plaintiffs may have filed this case believing their parcels of land were bigger from the contents of the documents  issued by the lands office.

S. M. KIBUNJA,

JUDGE.

Delivered  on 19^th day ofSeptember 2013.