MELUBO OLE SOOLA VS KASOI OLE NTABUKAI AND LAND ADJUDICATION & SETTLEMENT OFFICER KILGORIS AND 3 Others

JUDGEMENT

1. The Plaintiff herein filed a Plaint dated 10.01.2022 (hereinafter referred to as “the Plaint”) against the 1^st to 5^th Defendants herein seeking for the following Orders; -
2. A declaration that the Plaintiff is the sole lawful owner of Plot.No.478 Nkararo Adjudication Section otherwise referred to as the suit land.
3. Declaration that the purported objection proceedings and the appeal touching on and/or concerning Plot.No. 478 Nkararo Adjudication Section was/were fraudulent, illegal, null and void for want of jurisdiction.
4. Declaration that the decision arising out of the instant Appeal whereby it was decreed that the Plot.No. 478 Nkararo Adjudication Section that the Plaintiff be given 11 Acres and the 1^st Defendant be given 10 acres out of the suit property was anchored on an illegali and void process and hence same ought to be nullified.
5. An order of eviction against the 1^st Defendant, his agents and/or servants from Plot.No. 478 Nkararo Adjudication Section.
6. Permanent injunction restraining the 1^st Defendant either by himself, agents, servants and/or anyone claiming under the Defendants from entering upon, re-entering, taking possession, trespassing onto, cultivating, grazing on, building structures, interfering with Plot.No. 478 Nkararo Adjudication Section and/or any portion(s) thereof.
7. Costs and Interests.
8. The main ground upon which the Plaintiff is relying on are acts of fraud undertaken by the 1^st Defendant and 3^rd Defendant which are contained in Paragraph 11 and 19 therein.
9. The present Plaint was served on the 1^st to 5^th Defendants who opposed the same by filing the relevant Defences.
10. The 1^st Defendant filed a Statement of Defence dated 12.03.2022.
11. The 1^st Defendant stated in his Defence that he filed a valid Objection within the appropriate timeline and therefore what happened in the year 2021 was the hearing and determination of the same.
12. In essence therefore, the 1^st Defendant sought for this Honourable Court to dismiss the present Plaint with costs.
13. The 2^nd to 5^th Defendants did not file any Defences against the present Plaint.
14. In Reply to the 1^st Defendant’s Defence, the Plaintiff filed a Reply dated 30.05.2022 and reiterated the facts contained in the present Plaint.
15. The pleadings thereafter closed and the hearing commenced on the 24.10.2023.

PLAINTIFF’S CASE.

1. The Plaintiff MELUBO OLE SOOLA was the Plaintiff’s first witness (PW1).
2. The Plaintiff introduced himself as a farmer and a resident of Nkararo area.
3. The Plaintiff confirmed to the Honourable Court that the 1^st Defendant is a neighbour on the ground.
4. The Plaintiff informed the Honourable Court that he is the registered owner of the property known as PLOT.NO.478 within NKARARO ADJUDICATION SECTION which he is in occupation of the same.
5. The Plaintiff produced a copy of the Adjudication Record No. 335679 issued on the 18.09.1990 (PLAINTIFF EXHIBIT 1) in his name.
6. On the other hand, the Plaintiff could not with certainty confirm the Plot number of the 1^st Defendant within NKARARO ADJUDICATION SECTION.
7. However, the Plaintiff stated that he was aware the 1^st Defendant had filed an Objection against the Adjudication Record No. 335679 before the Land Adjudication Officer but the same was then dismissed on the 30.06.2020.
8. The Plaintiff duly produced a certified copy of the proceedings and Ruling of the Objection No. 494 against PLOT.NO.478 within NKARARA ADJUDICATION SECTION instituted by the 1^st Defendant dated 30.06.2020. (PLAINTIFF EXHIBIT 2).
9. The 1^st Defendant being aggrieved by the Ruling delivered by the Land Adjudication Officer on the 30.06.2020 filed an Appeal to the Minister on the 26.05.2021 which was after the prescribed time of 60 days as provided in the Land Adjudication Act, Cap 284.
10. The Plaintiff stated that despite the said Appeal being time barred, the 3^rd Defendant acting on delegated powers by the Minister of Lands proceeded to entertain the 1^st Defendant’s Appeal by undertaking a hearing thereof and making an illegal determination on the 26/05/2017.
11. The Plaintiff’s position is that the determination pronounced by the 3^rd Defendant on the 26.05.2017 directed that the PLOT NO.478 be divided into two portions in the following manner; -
12. A portion of 11 Acres be allocated to the Plaintiff herein.
13. A portion of 10 Acres be allocated to the 1^st Defendant herein.
14. The Plaintiff herein therefore pleaded that the Appeal to the Minister lodged by the 1^st Defendant which proceeded for hearing and a determination made on the 26.05.2017 was null and void and this Honourable Court should declare it as such.
15. The Plaintiff is therefore seeking a declaration that the entire property known PLOT.NO.478 be declared his exclusive property and the 2^nd to 4^th Defendant be prohibited for implementing the decision of the 3^rd Defendant pronounced on the 26.05.2017.
16. On cross-examination, the Plaintiff reiterated that he was the one that was allocated PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
17. However, during the allocation process, the Plaintiff was still a young boy and did not have an Identification Card.
18. The Plaintiff explained to the Honourable Court that although he was still a minor, he was allocated land within NKARARO ADJUDICATION SECTION because he was an orphan.
19. The Plaintiff confirmed that he was born close to PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
20. Consequently therefore, at the time Adjudication was happening within NKARARO ADJUDICATION SECTION, the Plaintiff was in possession of PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
21. The Plaintiff confirmed that he participated in both the Objection proceedings and the Minister’s Appeal that were filed by the 1^st Defendant relating to the PLOT.NO.478 within NKARARO ADJUDICTION SECTION.
22. However, the Plaintiff informed the Honourable Court that he does not agree with the determination of the 3^rd Defendant in the Minister’s Appeal pronounced on the 26.05.2017.
23. On re-examination, the Plaintiff reiterated that he is the lawful owner of PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
24. According to him, the decision by the 3^rd Defendant to split PLOT.NO.478 within NKARARO ADJUDICATION SECTION was therefore wrong.
25. At the end of this re-examination, the Plaintiff was discharged from the witness box and thereafter the Plaintiff’s Counsel closed his case.

DEFENCE HEARING.

1. The Defence proceeded on the same day with the 1^st Defendant KASOI OLE NTABUKAI testifying as 1^st Defence witness (DW1).
2. The 1^st Defendant introduced himself as a farmer and resident of NKARARO location.
3. The 1^st Defendant began his testimony by informing the Honourable Court that he had been a resident of NKARARO area since the year 1968.
4. Unfortunately, during the demarcation of NKARARO ADJUDICATION SECTION, the 1^st Defendant was not allocated any portion of land dispute being on the ground.
5. Instead, the 1^st Defendant discovered that the portion which he occupied had been demarcated as PLOT.NO.478 and recorded in the name of the Plaintiff herein.
6. Upon this discovery, the 1^st Defendant filed an Objection to the Land Adjudication Officer challenging the issuance of the Adjudication Record No. 335679 issued on the 18.06.1990in favour of the Plaintiff herein.
7. The 1^st Defendant produced a letter dated 30.11.1990 addressed to the Provincial Land Adjudication officer as (DEFENCE EXHIBIT 1).
8. However, due to hostility on the ground, the Objection proceedings took a long time to be heard and determined.
9. Be as it may, the Objection proceedings filed by the 1^st Respondent were dismissed in favour of the Plaintiff.
10. The 1^st Defendant being dissatisfied with the Ruling issued by the Land Adjudication Officer in the Objection proceedings filed an Appeal to the Minister.
11. It is the determination of the 3^rd Defendant exercising delegated powers from the Minister of Lands pronounced on 26.05.2017 that PLOT NO. 478 within Nkararo Adjudication Section was sub-divided into two portions.
12. According to the 1^st Defendant, the Plaintiff was allocated 11 acres while his was allocated 10 acres thereof.
13. The 1^st Defendant further informed the Honourable Court that he has been in occupation of the 10 acres on PLOT.NO.478 within NKARARO ADJUDICATION SECTION for a long time and even the parents were buried on the said property.
14. The 1^st Defendant ended his evidence in chief by stating that the Plaintiff herein does not reside on the PLOT.478 and in fact had sold the same to a third party.
15. In cross-examination and on being referred to DEFENCE EXHIBIT 1, the 1^st Defendant pointed out that he was Petitioner No. 6 on the said letter.
16. The 1^st Defendant stated that the contents of the letter produced as DEFENCE EXHIBIT 1 pointed out to the fact that the adjudication undertaken within NKARARO ADJUDICATION SECTION had failed to cater for some of the residents within the said area.
17. The 1^st Defendant confirmed that he testified in the Objection proceedings before the Land Adjudication Officer and admitted that PLOT.NO.478 within NKARARO ADJUDICATION SECTION belonged to the Plaintiff hence he lost this Objection proceedings therein.
18. The 1^st Defendant testified that he was familiar with the reasons that led to the 3^rd Defendant decision to sub-divide PLOT.NO.478 into two portions.
19. The 1^st Defendant is of the view that the decision was to ensure that peace would prevail between the Plaintiff and the 1^st Defendant who had being having a dispute on the ground.
20. The 1^st Defendant denied the Plaintiff’s allegation that he currently stays in Masurura.
21. The 1^st Defendant informed the Honourable Court that he resided in Masurura way back in 1961, then moved to Lolgorian in the year 1962 and finally to Nkararo in the year 1968.
22. The 1^st Defendant therefore stated that he is lawfully entitled to the 10 acres in PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
23. Finally, the 1^st Defendant reiterated that the Appeal to the Minister was filed within time and is legitimate.
24. On re-examination, the 1^st Defendant confirmed that he was on the ground when the demarcation of NKARARO ADJUDICATION SECTION was on going.
25. The 1^st Defendant informed the Honourable Court that he was familiar with the chair of the Adjudication Committee of NKARARO ADJUDICATION SECTION.
26. According to the 1^st Defendant, it was the Chair of the Adjudication Committee of NKARARO ADJUDICATION SECTION that brought the conflicts and disputes among the residents.
27. However, the 1^st Defendant insisted that he won the Appeal before the Minister because he said the truth.
28. The 1^st Defendant stated that during the hearing of the Minister’s Appeal, all parties were present and participated in it.
29. The 1^st Defendant denied being late in filing the Appeal to the Minister as alleged by the Plaintiff.
30. The 1^st Defendant admitted that the PLOT.NO.477 within NKARARO ADJUDICATION SECTION is recorded in his name although it was bought by his son.
31. The 1^st Defendant could not state with clarity when the son purchased PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
32. At the end of this re-examination, the 1^st Defendant was discharged from the witness box and the 1^st Defendant closed his case.
33. The 2^nd to 5^th Defendants having not entered appearance and/or filed any defences thereof, the hearing was consequently concluded.
34. The Honourable Court has duly perused the pleadings placed before it, considered the testimonies of the parties and gone through the documentary evidence produced as evidence by the witnesses herein.
35. The issues for determination in the present Plaint can be summarised as follows; -

ISSUE NO.1- WHETHER OR NOT THE 1^ST DEFENDANT’S OBJECTION PROCEEDINGS WERE FICTIOUS AND/OR FRAUDULENT AS ALLEGED BY THE PLAINTIFF.

ISSUE NO. 2- WHETHER OR NOT THE APPEAL TO THE MINISTER BY THE 1^ST DEFENDANT WAS FRAUDULENT HAVING BEEN FILED OUT OF TIME OR NOT?

ISSUE NO.3 – WHETHER THE 3^RD DEFENDANT IN THE MINISTER’S APPEAL FILED BY THE 1^ST DEFENDANT MADE A FRAUDULENT DETERMINATION ON THE 26.05.2017?

ISSUE NO.4 – IS THE PLAINTIFF ENTITLED TO THE PRAYERS SOUGHT FOR IN THE PLAINT?

ISSUE NO.5- WHO SHOULD BEAR THE COSTS OF THIS SUIT?

1. The issues for determination having been duly identified hereinabove, the same will now be discussed and determined as hereinbelow.

ISSUE NO.1- WHETHER OR NOT THE 1^ST DEFENDANT’S OBJECTION PROCEEDINGS WERE FICTIOUS AND/OR FRAUDULENT AS ALLEGED BY THE PLAINTIFF.

1. The first issue for determination is whether or not the 1^st Defendant ever filed any Objection proceedings against the Plaintiff.
2. The Plaintiff in his Plaint under Paragraph 9,10 and 11 has pleaded that the 1^st Defendant did not file any Objections against the Adjudication Record No. 335679 issued on the 18.06.1990.
3. The Plaintiff under Paragraph 11 outlined various particulars of fraud committed by the 1^st Defendant in an effort to claim the property known PLOT.NO.478 within NKARARO ADJUDICATION SECTION.
4. The 1^st Defendant on the other hand has denied acting in any fraudulent manner and states that a legitimate Objection was filed before the Land Adjudication Officer relating to PLOT.NO.478.
5. The 1^st Defendant produced a letter dated 30.11.1990 as well as a Receipt for the payment of the Objection issued on the 14.12.1990.
6. The 1^st Defendant’s who was the 6^th Petitioner in the letter dated 30.11.1990 confirms that intention to object to the Adjudication process within NKARARO ADJUDICATION SECTION.
7. The receipt attached to the letter dated 30.11.1990 confirms that indeed the 1^st Defendant filed an Objection as against PLOT.NO.478 in the name of the Plaintiff on the 14.12.1990.
8. The Plaintiff has produced a Certificate Copy of the proceedings with the 1^st Defendant together with the Ruling pronounced on the 30.06.2020.
9. All these documents placed before the Honourable Court point to the fact that the 1^st Defendant was simply complying with the dispute resolution mechanisms provided under the Land Adjudication Act, Cap 284.
10. The allegation that there was no Objection filed by the 1^st Defendant in the year 1990 is unfounded and the decision by the 1^st Defendant to file an Objection against the Adjudication Record issued in favour of the Plaintiff can not be deemed to be fraudulent.
11. The process to be followed by any party not satisfied with the details and particulars contained in an Adjudication Record issued under Section 24 of the Land Adjudication Act, Cap 284 is expressly provided for under Section 26 of the same Act.
12. The other aspect that the Plaintiff has raised as regards the 1^st Defendant’s objection was that it was filed after the lapse of the 60 days period as provided under Section 26 of the Land Adjudication Act, Cap 284.
13. For clarity, Section 26 (1) of the Land Adjudication Act, Cap 284 provides as follows; -

“(1) Any person named in or affected by the Adjudication Register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.”

1. The understanding of this provision is that the period of 60 days provided for filing Objections will only start running from the date of publishing the Adjudication Register to the general public.
2. In essence therefore, for the Plaintiff to prove that the 1^st Defendant’s Objection was filed out of time, he was required to provide the date when the Adjudication Register of NKARARO ADJUDICATION SECTION was published for inspection.
3. Thereafter, once the date when the Adjudication Register was published is ascertained, then the period of 60 days thereafter can start running.
4. Unfortunately, the Plaintiff did not provide the date when the Adjudication Register of NKARARO ADJUDICATION SECTION was published or when the actual publication of the same was done.
5. The date indicated on the Adjudication Record No. 335679 as 18.06.1990 can not be said to be the date when the Land Adjudication Officer published the Adjudication Record because an Adjudication Record is only one part of the Adjudication Register.
6. The Adjudication Register as provided under Section 24 of the Land Adjudication Act, Cap 284 consists of the Adjudication Record and the Demarcation Map.
7. It is these two documents known as the Adjudication Record and the Demarcation Map that must be published by the Land Adjudication Officer under Section 26 (1) of the Land Adjudication Act, Cap 284 so that the 60 days period commences to that.
8. In other words, the use of the date in the Adjudication Record is not lawful and it can not be deemed to be the lawful Adjudication Register as envisaged in law.

ISSUE NO. 2- WHETHER OR NOT THE APPEAL TO THE MINISTER BY THE 1^ST DEFENDANT WAS FRAUDULENT HAVING BEEN FILED OUT OF TIME OR NOT?

1. The second issue for determination is whether the Appeal to the Minister filed by the 1^st Defendant was done out of time or not.
2. The Plaintiff is of the view that the 1^st Defendant’s appeal to the Minister on the property known as PLOT.478 within NKARARO ADJUDICATION SECTION was filed out of time and therefore both the proceedings and/or the determination made on the 26.05.2017 were null and void.
3. According to the Plaintiff, the Objection proceedings were determined on the 30.06.2020 and the subsequent Appeal to the Minister filed on the year 2021.
4. The Plaintiff stated that Section 29 (1) of the Land Adjudication Act, Cap 284 requires that any appeal to the Minister from a decision emanating from Objection proceedings must be done within 60 days thereof.
5. The Plaintiff is of the view that the admission of the 1^st Defendant’s Appeal to the Minister after the lapse of the 60 days from 30.06.2020 rendered the entire Appeal process fraudulent, null and void.
6. The 1^st Defendant on the other hand testified to the effect that the Appeal to the Minister was filed within time and is therefore legitimate.
7. The issue here therefore is whether the late filing of an Appeal can render such an exercise to be fraudulent?
8. As earlier stated, the 3^rd Defendant exercising delegated powers under Section 29 (1) of the Land Adjudication Act, Cap 284 is allowed to hear and determine Appeals from Objections determined by the Land Adjudication Officer.
9. If for one reason or another an Appeal to the Minister is filed out of time, it means that such an Appeal is irregular and incompetent.
10. However, the said Appeal cannot be said to be fraudulent as the procedure of filing an Appeal is actually provided for in law.
11. The consequence of the 3^rd Defendant entertaining an Appeal filed out of time can only be corrected by way of a prayer in Judicial Review to quash such proceedings and/or determination thereof.
12. Be as it may, what the Plaintiff has produced before this Honourable Court are the proceedings and the determination of the Minister undertaken on the 26.05.2021.
13. The date of 26.05.2021 relates to when the Appeal was heard and determined and not the actual date of filing the Appeal.
14. This Honourable Court therefore will not delve into this matter any further.

ISSUE NO.3 – WHETHER THE 3^RD DEFENDANT IN THE MINISTER’S APPEAL FILED BY THE 1^ST DEFENDANT MADE A FRAUDULENT DETERMINATION ON THE 26.05.2017?

1. The fourth issue for determination is whether the 3^rd Defendant determination on the 26.05.2017 was fraudulent or not.
2. According to the Plaintiff, the 3^rd Defendant acted fraudulently in pronouncing its determination on the 26.05.2017 in favour of the 1^st Defendant.
3. The Plaintiff outlined the particulars of fraud as admitting an appeal out of time, abusing the office, conniving and/or colluding with the 1^st Defendant to defraud the Plaintiff of the suit property and carrying out a hearing of the appeal long after the lapse of the statutory timelines.
4. As earlier stated, all the above particulars of fraud except for (e) and (f) against the 3^rd Defendant come into play while challenging the manner and procedure which he applied in handling the 1^st Defendant’s Appeal which was an administrative function.
5. The exercise of whether the 3^rd Defendant in his administrative function complied with the provisions of the Land Adjudication Act, Cap 284 can only be discussed through a Judicia Review process and not a normal civil suit as filed by the Plaintiff.
6. On the other particulars that is (e) and (f), the Plaintiff has not provided any evidence that the 3^rd Defendant had planned and/or in fact acted in a manner to benefit from the property known as PLOT.NO.478 through the 1^st Defendant.
7. In essence therefore, this Honourable Court is not satisfied that there was any fraudulent intentions and/or actions undertaken by the 3^rd Defendant in the process of hearing and determining the 1^st Defendant’s Appeal thereof.

ISSUE NO.4 – IS THE PLAINTIFF ENTITLED TO THE PRAYERS SOUGHT FOR IN THE PLAINT?

1. The fourth issue for determination of whether the Plaintiff is entitled to the prayers sought in the present Plaint.
2. The first prayer is a declaration that the PLOT.NO.478 within NKARARO ADJUDICATION SECTION is the property of the Plaintiff to the exclusion of any other person.
3. This prayer in the Honourable Court’s view is meant to overturn the determination of the 3^rd Defendant pronounced on the 26.05.2017.
4. Section 29 (1) of the Land Adjudication Act, Cap 284 expressly provides that the determination of the Minister pursuant to an Appeal is final.
5. In essence therefore, this Honourable Court does not have any jurisdiction under the Land Adjudication Act, Cap 284 to overturn the determination of the Minister emanating from an Appeal process under the said section.
6. Consequently, Prayer A in the present Plaint cannot be issued.
7. As regards Prayer No. B, this Honourable Court is of the considered view that there is no proof that either the 1^st Defendant and/or the 3^rd Defendant acted in any fraudulent manner with an intention to defraud the Plaintiff of PLOT.NO.478.
8. In other words, Prayer B is also denied.
9. On Prayer No. C, the declaration being sought touches on both the procedure and the application of the Law by the 3^rd Defendant in handling the Appeal by the 1^st Defendant.
10. The evaluation of the 3^rd Respondent’s actions in his administrative duties can only be discussed by way of a judicial review proceeding.
11. Once again, Section 29 (1) of the Land Adjudication Act, Cap 284 states that the Minister’s determination on an Appeal is final and this Honourable Court has no jurisdiction overturn such finding hence Prayer No. C is denied.
12. As regards Prayer No. D and E, the Honourable Court also declines to grant both of them as the property known as PLOT.NO.478 is not exclusively for the Plaintiff pursuant to the 3^rd Defendant’s determination made on 26.05.2021.

ISSUE NO.5- WHO SHOULD BEAR THE COSTS OF THIS SUIT?

1. The last issue for determination is who should bear the costs of this suit.
2. Costs follow the event and therefore the Plaintiff having not been successful in the said suit, he is condemned to pay costs.

CONCLUSION

1. In conclusion therefore, the Honourable Court hereby makes the following Orders in determination of the Plaint dated 10.01.2022; -
2. THAT PLAINT DATED 10.01.2022 BE AND IS HEREBY DISMISSED.
3. THE PLAINTIFF WILL BEAR THE COSTS OF THIS SUIT.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 13^TH MARCH 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE PLAINTIFF: MR. OCHWANGI

ADVOCATE FOR THE DEFENDANTS: MR. KIPROTICH