melvin iyase a.k.a kelvin iyase VS elizabeth kanaiza chegoso

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT VIHIGA

ELC APPEAL NO.  E009 OF  2022

MELVIN IYASE a.k.a KELVIN IYASE…………..………………APPELLANT

VERSUS

ELIZABETH KINAIZA CHEGOSO…………..…………………RESPONDENT

(an appeal from the judgement of the Hon. R. M. Ndombi SRM in VIHIGA MC. E & L CASE NO. 13 OF 2019 delivered on 8^th September 2022)

BETWEEN

ELIZABETH KINAIZA CHEGOSO………………………………….PLAINTIFF

VERSUS

MELVIN IYASE…………………….………………………………DEFENDANT

JUDGEMENT

Introduction

1. The Appellant MELVIN IYASE was the Defendant in VIHIGA PMC ELC NO. 13 OF 2019(herein called the suit).  The Appellant had been sued by the Respondent herein vide the plaint dated 28/3/2019 over a parcel of land known as KAKAMEGA/KEGOYE/755 (the suit land herein). The Respondent’s case in the suit was that she was the owner of the suit land but the Appellant unlawfully gained access to the land and began construction of a house.  The appellant sought for orders of;
2. Permanent injunction restraining the appellant from interfering with the plaintiff’s ownership of the suit land.
3. Eviction of the appellant from the suit land
4. Costs of the suit
5. In reply to the plaintiff‘s claim, the appellant filed a statement of defence and Counter Claim dated 29^th April, 2019.  He denied the Respondent’s claim and claimed that registration of the suit land in the name of the Respondent was fraudulent as no Succession was undertaken to the estate of the previous registered owner.  He prayed for orders;
6. That the registration of the plaintiff as the proprietor of the suit land be cancelled.
7. Costs of the counter-claim.
8. The suit was heard by the trial court which vide its Judgment dated 8^th September 2022 found in favour of the Respondent and entered Judgment in her favour for:
9. Permanent injunction restraining the appellant from interfering with the Respondents’ absolute ownership of the suit land.
10. Eviction order for the appellant to vacate the suit land within 90 days or be evicted with the help of the area OCS.
11. Costs of the suit.
12. Aggrieved by the Judgment the appellant filed the present appeal vide the Memorandum of Appeal dated 3^rd October 2022 seeking for orders that the Judgment  be quashed and set aside and the counter-claim be upheld with costs to the appellant.
13. The grounds of appeal as set out in the Memorandum of appeal are that
14. The Learned lower court erred in law and fact by relying on evidence which under the circumstances was inadequate to result into the eviction of the appellant from parcel No. KAKAMEGA/KEGOYE/755.
15. The learned lower court erred in law and fact when it dismissed the defence and counter –claim by the appellant and ordering his eviction from Parcel No. KAKAMEGA/KEGOYE/755.
16. Directions were taken by consent of the parties on 17/1/2023 that the appeal be canvassed by way of written submissions.  Pursuant to the directions, written submissions dated 23^rd February 2024 were filed by the firm of K.N WESUTSA & CO. ADVOCATES on behalf of the appellant similarly, written submissions dated 15^th March 2024 were filed on behalf of the Respondent by the firm of A.B.L MUSIEGA & CO. ADVOCATES.

Issues for determination

1. Two grounds of appeal were raised in the Memorandum of Appeal and these form the issues for determination herein.

Analysis and determination

1. This being a first appeal, the court reminds itself of the role to re-analyse the evidence placed before the trial court.
2. The first ground of appeal raises the issue of whether or not he evidence placed before the trial court was adequate to prove the Respondent’s case.  Perusal of the plaint reveals that the Respondent’s case was premised on the tort of trespass.  This can be seen from paragraphs 5, 6 , 7 and 9 of the plaint.  The evidence placed before the trial court by the Respondent comprised of the testimonies of PW1, PW2 and PW3 and the exhibits they produced.
3. The Respondent testified as PW1 and stated that the appellant had started constructing on her land parcel No. KAKAMEGA/KEGOYE/755.  She adopted the contents of her witness statement filed on 29^th March 2019 and the further statement file don 8^th January 2020 as her evidence in chief.  She had stated in the witness statement that the suit land was bought by her father and mother and that she was born and brought up thereon. That before his death, her father had distributed his property to all his children. That the appellant’s father was given money to go and buy land for himself.  That after the death of her father, her mother got the land and upon the death of her mother the title was transmitted to her.  That the appellant had renounced his relationship with the Respondent‘s father.  That it is the appellant who put a house on the suit land.
4. She stated further in the Further Witness Statement that upon her father’s death she filed Succession Cause No, 469 of 1990 in the High court at Nairobi and on the basis of Certificate of Confirmation of Grant dated 25^th January 1991, the land was registered in her name with the consent of all the dependents of the deceased.  That no one has challenged the succession.  That by a document in writing in his own hand dated 6^th August 1980, the Respondent’s father confirmed that the appellant’s father had no valid claim to the suit land as he had been compensated and warned against forced entry into the land.  That while the Respondent was working in Nairobi, the appellant took advantage of her absence and entered onto the land.  That the appellant has no right to the land. She prayed that the court grants eviction orders and orders restraining the appellant from re-entry thereunto.
5. The Respondent produced as exhibits; title deed for the suit land, Grant of Letters of Administration, Certificate of death for her father, Will dated 6^th August 1980 and  translation thereof and photographs.
6. On cross-examination PW1 stated that the appellant’s father was called Iyase.  That Iyase was her step brother because he was the son of her father and his 3^rd wife.  That Iyase was buried on her land by force when she was away in Nairobi. And on re- examination she stated that 21 years had elapsed since she took out Letters of Administration. That a lady called Timina lives on the suit land with her husband.  That the Respondent had asked Timina to vacate the land to no avail.
7. PW2 was one Noel Lung’ayo who adopted the consents of his earlier recorded witness statement as his evidence.  The contents of his witness statement filed on 29^th March 2019 are similar to those of the witness statement of PW1 filed on the same date.  He stated  that the appellant had no right over the suit land. That the appellant came to the land when the Respondent did not know and built a house.
8. On cross-examination PW2 stated that there is a lady called Timina, a daughter of Iyase who lives on the suit land.
9. PW3’s evidence was also similar to the evidence of PW1 and PW2.
10. The evidence of the appellant comprised of the testimony of DW1 one TIMINA ORENJA.  She adopted her witness statement dated 29^th April, 2019 as her evidence in chief.  She had stated in the said witness statement that Joseph Chegoso the registered owner of the suit land who died in the year 1988 was her grandfather.  That her father the late Ernest Iyase Chegoso was the son of the said Joseph Chegoso and his second wife.  That the Respondent and her sisters were children of Joseph Chegoso by his 3^rd wife and that as the Respondent did not have any brother, her mother was not given land as it was assumed that the daughters would get land through their marriages.  That her parents were buried on the suit land.
11. That the registration of the suit land in the name of the Respondent was fraudulent as there was no succession and if there was succession the same was shrouded in secrecy as her father did not participate in it.  That it is her and her husband who reside on the land and take care of it as the rest of her siblings are living elsewhere.  That neither the Respondent nor her siblings have ever been in occupation of the suit land.
12. On cross examination she stated that Joseph Chegoso was the father of the Respondent and that she did not know whether the Respondent undertook the succession in the year 1990.  That she has been sued in another case.  That the Respondent should not be allowed to inherit the land because she is a woman.  That succession was never done and the Grant filed in court was not true.
13. The appellant did not testify in the suit.
14. The ingredients of the tort of trespass to private land is unlawful entry onto the land.  The Respondent produced a title deed dated 21^st February 1991 in her name.  She explained the root or origin of her title as a transmission vide a Certificate of Confirmation of Grant in a succession cause in respect of the estate of Joseph Chegoso, deceased who was the original registered owner.  She produced certificate of confirmation of Grant dated 25^th January 1991 as exhibit.  The schedule to the said document shows that the suit land was given to the Respondent wholly. Being the registered owner of the land, the Respondent was entitled to quiet and exclusive enjoyment thereof.  The entry of the appellant onto the suit land is not denied.  There is no evidence that the entry was with the permission of the Respondent who was the registered owner.  The appellant never testified to explain himself but his sister who testified as DW1 stated that it is her and her husband who are on the land as of right because the Respondent being a woman cannot inherit the land.  That her husband and her are taking care of the land so that the Respondent and her sisters do not take it.   The Respondent’s case was that he appellant entered the land and began to construct and that’s when she filed the suit.
15. I find that the evidence produced before the trial court was adequate to prove the tort of trespass to land.
16. The 2^nd ground of appeal raises the issue of whether or not the trial court entered when it dismissed the defence and counter –claim and ordered the appellant eviction.  The counter claim by the appellant was for cancellation of the title held by the appellant in respect of the suit land.  The appellants’ case as stated in the counter-claim was that the title was acquired fraudulently as no succession was undertaken to the estate of the registered owner or if succession was undertaken, it was shrouded in secrecy.  A certificate of confirmation of Grant dated 25^th January 1991 in succession cause No. 469 of 1990 Nairobi High Court, was produced as exhibit. Though DW1 stated that the same was not true, she adduced no evidence to show that the Grant was not genuine.  She stated on cross-examination that she has never gone to Nairobi High Court to confirm whether the grant was true of not.
17. Under S. 80 of the Land Registration Act title to landcan only be cancelled if the same was obtained by fraud, mistaken or other corrupt scheme.  This was not proved herein.  There was no evidence that the appellant had challenged the succession proceedings to date.  The jurisdiction to arbitrate disputes relating to the estates of deceased persons rests with the High Court.  And on the basis of the material placed before it, the High court distributed the suit land to the Respondent.
18. The burden of proof to prove the fraud was with the appellant.  The standard of proof for claims based on fraud is higher than proof on a balance of probabilities.  I find that the appellant did not discharge the burden of proof.
19. I find that the counter-claim was not proved and that the trial court was justified to dismiss it.
20. Regarding costs of the appeal, under section 27 of the Civil Procedure Act, costs follow the event.  No reason has been advanced why the court should exercise it discretion to order otherwise.
21. In conclusion having found that there was adequate evidence in support of the Respondent’s case and that the counter- claim was not proved, I find that the trial court did not err in its findings and decision. I find no reason to interfere with the Judgment dated 8/9/2020 and hereby uphold it.  The appeal therefore fails and is hereby dismissed with costs to the Respondent.

Orders accordingly.

Judgement dated and signed at Vihiga and delivered this 9^th day of May, 2024 virtually through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:

Ajevi: Court Assistant.

Kundu for the appellant.

Malanda for the Respondents.