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JudgmentNAFTALI NYABERI MANGERERE VS NAMISI OLE KIPTEK34 min read

NAFTALI NYABERI MANGERERE VS NAMISI OLE KIPTEK

Environment and Land Court at Kilgoris Environment and Land Court · · E. M. WASHE, J

JUDGEMENT

  1. The Plaintiff herein through the Re-Amended Originating Summons dated 13.10.2023 (hereinafter referred to as “the present O.S”) sought for the determination of the following issues against the 1st , 2nd and 3rd Defendants;-
  2. Whether the Plaintiff’s father NAFTALI NYABERI MEGERERE is the absolute registered owner of the Land Parcel No. NAROK/TRANSMARA/POROKO/221?
  3. That the Hon Court be pleased to make a finding that Land Parcel no. NAROK/TRANSMARA/POROKO/221 measuring 13.5 acres is in the names of NAFTALI MANGERERE now deceased.
  4. That the Hon Court be pleased to issue an Order of Eviction evicting the Defendants/ Respondents completely from the Plaintiff’s Land Parcel No. NAROK/TRANSMARA/POROKO/221 measuring 13.5 acres.
  5. The Defendants be restrained permanently from entering, wasting, damaging and/or alienating or in anyway, disturbing the lawful possession of the Plaintiff of 13.5 acres of the Land Reference No. NAROK/TRANSMARA/POROKO/221.
  6. That the Hon Court be pleased to direct the OCS Poroko Police Station to execute the Order.
  7. That the Defendants be directed to pay costs of this Court.
  8. The grounds adduced by the Plaintiff in support of the above issues can be summarised as follows; -
  9. In addition to the above portion, the Plaintiff’s father known as NAFTALI NYABERI MANGERERE (deceased) again purchased a second portion of land measuring approximately 6.5 acres from the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 DANIEL SIRAYO OLE KOIKO of Kenyan Identification Card No. 352326/61 for a consideration of Kshs 7,000/- on the 21.11.1975.
  10. The Plaintiff’s father known as NAFTALI NYABERI MANGERERE (deceased) purchased a portion measuring 6.5 acres from the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 the deceased Namisi Ole Kiptek on the 11.12.1977.
  11. The Plaintiff pleaded that after the purchase of the two portions of land measuring 13.5 acres, his father NAFTALI NYABERI MANGERERE took possession of the same and began occupation through the construction of his residence and cultivation of subsistence crops.
  12. However, later on, the Plaintiff’s father NAFTALI NYABERI MANGERERE discovered that the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 was actually registered in the name of NAMIS OLE KIPTEK of Kenyan I.D No. 0171765 and not DANIEL SIRAYO OLE KOIKO of Kenyan Identification Card No. 352326/61.
  13. Be as it may and in recognition of the 13.5 Acres purchased by the Plaintiff’s father NAFTALI NYABERI MANGERERE, the 1st Defendant made an Application for the Sub-division of the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 on the 03.08.1989 into two portions.
  14. The Plaintiff confirmed that the sub-division of the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 was approved by the Land Control Board and the resultant plots were issued Sub-Division No. 164 and 165 which were later registered as LR.NO.TRANSMARA/POROKO/220 and LR.NO.TRANSMARA/POROKO/220 measuring 0.81 Hectares and 5.36 Hectares respectively.
  15. Upon the sub-division of the property known as LR.NO.NAROK/TRANSMARA/POROKO/101, the Plaintiff’s father NAFTALI NYABERI MANGERERE was to be registered the owner of the Sub-Division No. 165 measuring 5.36 Hectares which was later registered as LR.NO.TRANSMARA/POROKO/221 in line with the two Agreements For Sale.
  16. However, the 1st Defendant’s husband NAMIS OLE KIPTEK (deceased) failed to effect the transfer and registration of the Sub-Division No. 165 now titled as LR.NO.TRANSMARA/POROKO/221 to the name of the Plaintiff’s father NAFTALI NYABERI MANGERERE as expected.
  17. Based on this omission, the Plaintiff’s father NAFTALI NYABERI MANGERERE filed legal proceedings known as KISII ELC CASE NO. 242 OF 2009 (0.S) seeking a declaration that the property known as LR.NO.TRANSMARA/POROKO/221 be declared his lawful property and the said Title Deed registered in the name of the 1st Defendant’s husband NAMIS OLE KIPTEK be registered in the name of the late NAFTALI NYABERI MANGERERE.
  18. The proceeding known as KISII ELC CASE NO. 242 OF 2009 (O.S)  was heard on its merits and the Court pronounced itself through a Judgement dated 20.02.2015 that the property known as LR.NO.TRANSMARA/POROKO/221 belonged to the late NAFTALI NYABERI MANGERERE and further directed that the Title thereof should be transferred to him.
  19. In essence therefore, the Plaintiff in this proceeding is now seeking to have the 1st , 2nd and 3rd Defendants be evicted from the property known as LR.NO.TRANSMARA/POROKO/221 forthwith and further be injuncted permanently from interfering with the quite occupation and/or ownership of the said property.
  20. The Plaintiff again reiterated that his father NAFTALI NYABERI MANGERERE has been in occupation of the property known as LR.NO.TRANSMARA/POROKO/221 since 1975 which is now an aggregate of over 30 years until the filing of the present O.S.
  21. The 1st, 2nd and 3rd Defendant opposed the present O.S through a Replying Affidavit sworn by the 3rd Defendant on the 24.01.2024 that advanced the following grounds against the prayers sought by the Plaintiff; -
  22. The 1st, 2nd and 3rd Defendants denied all the allegations contained in the present O.S as well as the Supporting Affidavit thereof.
  23. The 1st , 2nd and 3rd Defendants pleaded in the Replying Affidavit dated 24.01.2024 that the present O.S was fatally defective, incompetent and an abuse of the Court process and sought to have the same dismissed at the earliest time possible.
  24. The 1st , 2nd and 3rd Defendants pleaded that the provisions of law that the Plaintiff was invoking did not provide the necessary jurisdiction for this Court to grant the prayers sought for in the present O.S.
  25. The 1st , 2nd and 3rd Defendants specifically pleaded that the property known as LR.NO.TRANSMARA/POROKO/221 belonged to the late NAMISI OLE KIPTEK now deceased.
  26. In response to paragraphs 1b,2b,2c,2d,2e of the present OS and well as Paragraphs 12 and 13 of the Supporting Affidavit sworn by the Plaintiff, the 1st , 2nd and 3rd Defendants pleaded that the Judgement pronounced on the 20.02.2015 in the proceedings known as KISII ELC CASE NO.242 OF 2009 (O.S) was issued ex-parte thereof.
  27. Upon issuance of the judgement and decree dated 20.02.2015 in the proceedings known as KISII ELC CASE NO.242 OF 2009 (O.S), the deceased NAFTALI NYABERI MANGERERE proceeded to process and be issued with a Title Deed of the property known as LR.NO.TRANSMARA/POROKO/221 on the 02.12.2016.
  28. However, on discovery of the ex-parte proceedings and judgement pronounced in the proceedings known as KISII ELC COURT NO. 242 OF 2009 (O.S), the 1st, 2nd and 3rd Defendants successfully applied to set-aside the said Judgement and Decree issued on the 20.02.2015.
  29. After a lengthy litigation, the Ex-parte Judgement and Decree issued on the 20.02.2015 in the proceedings known as KISII ELC COURT NO. 242 OF 2019 (O.S) was set-aside through a Ruling dated 18.02.2021.
  30. In essence therefore, the registration of NAFTALI NYABERI MANGERERE as the lawful owner of the property known as LR.NO.TRANSMARA/POROKO/221 was cancelled and there is no basis upon which the Plaintiff can evict the 1st , 2nd and 3rd Defendants from the said property.
  31. As regards the two Agreements for Sale executed in the year 1975, the 1st, 2nd and 3rd Defendants denied the existence and validity of these documents and/or transactions.
  32. The 1st , 2nd and 3rd Defendants pleaded that the two Agreements For Sale executed in the year 1975 were between the NAFTALI NYABERI MANGERERE and one DANIEL SIRAYO OLE KOIKO who is a different person to the late NAMISI OLE KIPTEK who is the owner of the property known as LR.NO.TRANSMARA/POROKO/221.
  33. The 1st , 2nd and 3rd Defendants further pleaded that the late NAMISI OLE KIPTEK was never an owner of the property known as LR.NO.TRANSMARA/POROKO/101 which was a subject of the transaction between the late NAFTALI NYABERI MANGERERE and the person known as DAVID SIRAYO OLE KOIKO.
  34. In other words, the 1st , 2nd and 3rd Defendants denied any entry by the late NAFTALI NYABERI MANGERERE into the property known as LR.NO.TRANSMARA/POROKO/221  as alleged and no possession or occupation has ever existed for the period alleged by the Plaintiff.
  35. The 1st, 2nd and 3rd Defendants conclusion was that the Plaintiff did not have any claim over their property known as LR.NO.TRANSMARA/POROKO/221 and the present O.S should be dismissed forthwith with costs.
  36. After the filing and service of the 1st, 2nd and 3rd Defendant’s response, the pleadings closed and the matter was set down for hearing.

PLAINTIFF’S CASE AND/OR TESTIMONY

  1. The Plaintiff herein was the first witness who was marked as PW 1.
  2. The Plaintiff introduced himself as the biological son and administrator to the Estate of late NAFTALI NYABERI MANGERERE who passed away in the year 2021.
  3. The Plaintiff produced as Death Certificate of NAFTALI NYABERI MANGERERE issued on the 27.06.2021 as PLAINTIFF’S EXHIBIT 1.
  4. The Plaintiff informed the Court that after the demise of the late NAFTALI NYABERI MANGERERE, he obtained Letters of Administration Ad -Litem on the 07.01.2022 which he also produced as PLAINTIFF’S EXHIBIT 2.
  5. The Plaintiff confirmed to the Court that the present O.S was filed by the late NAFTALI NYABERI MANGERERE before he passed away.
  6. According to the Plaintiff, the pleadings by the late NAFTALI NYABERI MANGERERE indicate that he purchased a portion of the property known as LR.NO.TRANSMARA/POROKO/101 from the late NAMISI OLE KIPTEK.
  7. The first Agreement For Sale between the late NAFTALI NYABERI MANGERERE and the late NAMISI OLE KIPTEK on the property known as LR.NO.TRANSMARA/POROKO/101 was executed on the 21.11.1975 for a portion of 7 acres.
  8. In addition to the Agreement For Sale dated 21.11.1975, the late NAFTALI NYABERI MANGERERE purchased an extra 6.5 acres from the late NAMISI OLE KIPTEK on the same property known as LR.NO.TRANSMARA/POROKO/101 on the 11.12.1977.
  9. The Plaintiff produced the two Agreements for Sale dated 21.11.1975 and 11.12.1977 between the late NAFTALI NYABERI MANGERERE and the late NAMISI OLE KIPTEK over the property known as LR.NO.TRANSMARA/POROKO/101 as PLAINTIFF’S EXHIBITS 3 & 4 respectively.
  10. The Plaintiff informed the Court that the total acreage purchased by the late NAFTALI NYABERI MANGERERE from the late NAMISI OLE KIPTEK on the property known as LR.NO.TRANSMARA/POROKO/101 was 13.5 acres.
  11. After execution of these two Agreements For Sale dated 21.11.1975 and 11.12.1977, the late NAMISI OLE KIPTEK applied to have the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 subdivided before the Land Control Board.
  12. The Application Form for sub-division of the property known as LR.NO.NAROK/TRANSMARA/POROKO/101 before the Land Control Board was dated 14.06.1996 and executed by both the late NAMISI OLE KIPTEK as the owner and the late NAFTALI NYABERI MANGERERE as the purchaser.
  13. The Application Form before the Land Control Board dated 14.06.1996 was produced as PLAINTIFF’S EXHIBIT 5.
  14. The Plaintiff testified that after the Sub-Division of the property known as LR.NO.NAROK/TRANSMARA/POROKO/101, the late NAFTALI NYABERI MANGERERE waited for the title measuring 13.5 acres but none was availed.
  15. On the 08.05.2003, the late NAFTALI NYABERI MANGERERE undertook an Official Search of the property known as LR.NO.TRANSMARA/POROKO/101 and discovered that the same was in the name of the late NAMISI OLE KIPTEK although he had charged the same to a financial institution.
  16. The Plaintiff produced an Official Search of the property known as NAROK/TRANSMARA/POROKO/101 dated 08.05.2003 confirming the Charge as PLAINTIFF’S EXHIBIT 6.
  17. Based on this information, the Plaintiff’s father NAFTALI NYABERI MANGERERE instructed an Advocate on the 31.10.2009 to make a demand for the Title of the portion he had purchased from the late NAMISI OLE KIPTEK which demand was produced as PLAINTIFF’S EXHIBIT 7.
  18. The Plaintiff further produced a letter dated 16.10.1975 from the late NAMISI OLE KIPTEK to the Land Adjudication Officer as PLAINTIFF’S EXHIBIT 8.
  19. The Plaintiff pointed out that the letter dated 16.10.1975 was an acknowledgement that the late NAMISI OLE KIPTEK had sold a portion of his property to the late NAFTALI NYABERI MANGERERE and therefore a title for that portion should be issued to him.
  20. The Plaintiff clarified that this letter dated 16.10.1975 was written by the late NAMISI OLE KIPTEK when they visited the offices of the Land Adjudication Officer to inform him of their transactions.
  21. The Plaintiff further produced the Green Cards of the properties known as LR.NO.NAROK/TRANSMARA/POROKO/101, LR.NO.TRANSMARA/POROKO/220 and LR.NO.TRANSMARA/POROKO/221 as PLAINTIFF’S EXHIBIT 9(A),9(B) and 9(C).
  22. The Plaintiff confirmed that his father the late NAFTALI NYABERI MANGERERE filed the original OS way back in the 2009 which was determined in his favour on the 20.02.2015.
  23. It was on the basis of the Judgement and Decree pronounced on the 20.02.2015 that the title to the property known as LR.NO.TRANSMARA/POROKO/221 was transferred from the name of the late NAMISI OLE KIPTEK to the late NAFTALI NYABERI MANGERERE.
  24. The Plaintiff stated that the property known as LR.NO.TRANSMARA/POROKO/221 measures approximately 5.36 Hectares and produced a Copy of the said Title as PLAINTIFF’S EXHIBIT 10.
  25. The Plaintiff produced the Certified Copy of the Judgement and Decree dated 20.02.2015 as PLAINTIFF’S EXHIBIT 11.
  26. The Plaintiff informed the Court that the property known as LR.NO.TRANSMARA/POROKO/221 was being cultivated by their family.
  27. The Plaintiff recognised the 1st, 2nd , 3rd Defendants as well as the Interested Party are the wife and children of the late NAMISI OLE KIPTEK.
  28. The Plaintiff clarified that the 1st , 2nd and 3rd Defendants came to the property known as LR.NO.TRANSMARA/POROKO/221 in the year 2009 and at that time, the property had already been sold to the late NAFTALI NYABERI MANGERERE.
  29. Since the 1st, 2nd and 3rd Defendants invaded the property known as LR.NO.TRANSMARA/POROKO/221, the developments undertaken by the late NAFTALI NYABERI MANGERERE and his family went to waste.
  30. The Plaintiff therefore adopted his witness statement dated 28.02.2022 and sought the Court to grant the prayers sought in the present O.S.
  31. On cross-examination, the Plaintiff reiterated that his father the late NAFTALI NYABERI MANGERERE filed the present suit before his demises.
  32. The Plaintiff informed the Court that the late NAMISI OLE KIPKET passed away during the pendency of the original O.S.
  33. The Plaintiff confirmed that the original OS was heard and determined in favour of the late NAFTALI NYABERI MANGERERE.
  34. However, the Plaintiff disagreed that the Judgement pronounced on the 20.02.2015 in favour of the late NAFTALI NYABERI MANGERERE was set-aside as alleged.
  35. On being referred to the PLAINTIFF’S EXHIBIT 5, the Plaintiff confirmed that the Application for sub-division of the property known as LR.NO.TRANSMARA/POROKO/101 was not approved by the Land Control Board.
  36. According to the Plaintiff, the main reason this proceeding was filed was because the late NAMISI OLE KIPTEK refused to prepare the completion documents to facilitate the transfer to the late NAFTALI NYABERI MANGERERE.
  37. On being referred to the PLAINTIFF’S EXHIBIT 3, the Plaintiff admitted that the Vendor in the Agreements For Sale was one DAVID SIRAYO OLE ROIKO of Kenyan ID No. 352327/61.
  38. The Plaintiff insisted that the original OS was to compel the late NAMISI OLE KIPTEK to avail the completion documents to the late NAFTALI NYABERI MANGERERE.
  39. The Plaintiff confirmed that after the registration of the late NAFTALI NYABERI MANGERERE pursuant to the Judgement and Decree issued on 20.02.2015, he took possession and use of the property known as LR.NO.TRANSMARA/POROKO/221.
  40. On re-examination, the Plaintiff was referred to the PLAINTIFF’S EXHIBIT 3.
  41. The Plaintiff insisted that the late NAMISI OLE KIPTEK executed the Agreements for Sale by the name DANIEL SIRAYO OLE KOIKO and the Kenyan I.D indicated therein is what he produced.
  42. However, when the late NAFTALI NYABERI MANGERERE went to do a search of the property known as LR.NO.NAROK/TRANSMARA/POROKO/101, he discovered that the name appearing in the records was NAMISI OLE KIPTEK and also of a different Kenyan ID.
  43. The Plaintiff alleged that the late NAMISI OLE KIPTEK was a very tricky person because the name DANIEL SIRAYO OLE KOIKO which he had used during the execution of the Agreements for Sale was faults including the Kenyan ID produced therein.
  44. Nevertheless, after the late NAFTALI NYABERI MANGERERE purchased the 13.5 acres in the year 1975, he took possession of the same and has been in continuous use of the same until recently.
  45. In essence, the Plaintiff informed the Court that they have lived on the property known as LR.NO.TRANSMARA/POROKO/221 since 1975 and have no other place to go.
  46. The Plaintiff admitted that the original OS was heard and determined and this is the second time this matter was being heard and determined.
  47. The Plaintiff insisted that the late NAMISI OLE KIPTEK and/or his administrator have refused to hand over the completion documents of the 13.5 acres which were purchased by the late NAFTALI NAYBERI MANGERERE.
  48. At the end of this re-examination, the Plaintiff was discharged from the witness box.
  49. The Plaintiff’s second witness was PAUL MATONGO OKIBO who was marked as PW 2.
  50. PW 2 introduced himself as a resident of Keroka Town within Nyamira County.
  51. PW 2 informed the Court that he had prepared a witness statement dated 16.11.2022 which he sought to adopt the same as his evidence in chief.
  52. PW 2 stated that we was well familiar with the properties known as LR.NO.TRANSMARA/POROKO/101 and LR NO.TRANSMARA/POROKO/221.
  53. According to PW 2, the property known as LR.NO.TRANSMARA/POROKO/101 was registered in the name of NAMISI OLE KIPTEK.
  54. Similarly, the property known as LR.NO.TRANSMARA/POROKO/221 was also registered in the name of NAMISI OLE KIPTEK.
  55. PW 2 testified that he stated occupying the property known as LR.NO.TRANSMARA/POROKO/221 way back in 1978 having been authorised by the late NAFTALI NYABERI MANGERERE.
  56. PW 2 confirmed that during his occupation on the property known as LR.NO.TRANSMARA/POROKO/221, they have been cultivating various crops.
  57. However, the family of NAMISI OLE KIPTEK came and took possession thereby resulting to the displacement of the family of NAFTALI NYABERI MANGERERE.
  58. PW 2 informed the Court that the family of NAMISI OLE KIPTEK have only cultivated a small portion of land by planting maize and sugar cane.
  59. PW 2 testified that the late NAFTALI NYABERI MANGERERE had purchased a portion of land from the late NAMISI OLE KIPTEK.
  60. PW 2 clarified that the person known as DANIEL SIRAYO OLE KOIKO is the same as NAMISI OLE KIPTEK.
  61. PW 2 informed the Court that the late NAMISI OLE KIPTEK was the original owner of the property known as LR.NO.TRANSMARA/POROKO/101 although had introduced himself as DANIEL SIRAYO OLE KOIKO to the late NAFTALI NYABERI MANGERERE during the signing of the original Agreements For Sale.
  62. However, thereafter, the late NAMISI OLE KIPTEK admitted that his actual name was NAMISI OLE KIPTEK and not DANIEL SIRAYO OLE KOIKO as had earlier indicated.
  63. PW 2 therefore sought for the Court to grant the prayers sought for in the present OS.
  64. On cross-examination, PW 2 stated that the late NAFTALI NYABERI MAGERERE  was his father in law having married his daughter in the year 1975.
  65. PW 2 admitted being aware that the Agreement for Sale done in the year 1975 had the name of DANIEL SIRAYO OLE KOIKO.
  66. However, PW 2 denied knowledge of another family of SIRAYO within POROKO area.
  67. PW 2 indicated that he was not present when the Agreement For Sale made in 1975 was executed.
  68. However, PW 2 informed the Court that one of the witnesses was the Land Adjudication Officer known as PETER MUSUMBA.
  69. PW 2 pointed out that both the Vendor and the Purchaser in this Agreement for Sale did not sign on the same.
  70. On being referred to the PLAINTIFF’S EXHIBIT 5, PW 2 stated that the Consent before the Land Control Board was not granted because the Vendor did not sign on it or appear at the hearing.
  71. PW 2 informed the Court that the property known as LR.NO.TRANSMARA/POROKO/221 was a sub-division of LR.NO.TRANSMARA/POROKO/219.
  72. The property known as LR.NO.TRANSMARA/POROKO/101 had been sub-divided to create LR.NO.TRANSMARA/POROKO/219 and LR.NO.TRANSMARA/POROKO/220.
  73. PW 2 confirmed that in the Green Card of LR.NO.TRANSMARA/POROKO/221, the late NAFTALI NYABERI MAGERERE has registered a caution dated 19.05.2009.
  74. PW 2 testified that the late NAFTALI NYABERI MAGERERE filed the present OS because the late NAMISI OLE KIPTEK had refused to hand him the completion documents.
  75. PW 2 insisted that the late NAFTALI NYABERI MAGERERE purchased a portion of 13 acres and has been in occupation and/or use of the same for the last 46 years until recently when they were evicted.
  76. On re-examination, PW 2 reiterated that the late NAFTALI NYABERI MAGERERE started occupying the portion of 13.5 Acres in the year 1977 until 1992 when the houses were burnt down during Tribal Clashes.
  77. PW 2 indicated that after the 1992 clashes, the family of NAFTALI NYABERI MAGERERE relocated its residence but continued to cultivate the property known as LR.NO.TRANSMARA/POROKO/221 until 2009.
  78. PW 2 stated that LR.NO.TRANSMARA/POROKO/221 was a sub-division from LR.NO.TRANSMARA/POROKO/219.
  79. On the other hand, the property known as LR.NO.TRANSMARA/POROKO/220 was sold to one ZACHARIA OTUNDO.
  80. PW 2 stated that every time they tried to access the property known as LR.NO.TRANSMARA/POROKO/221, the family of the late NAMISI OLE KIPTEK deny them access.
  81. At the end of this re-examination, PW 2 was discharged from the witness box and the Plaintiff’s case was closed.

DEFENCE HEARING.

  1. The Defence hearing commenced on the 08.04.2024 with the testimony of BENARD LEPARAN NAMISI who is the 3rd Defendant and marked as DW 1.
  2. The 3rd Defendant informed the Court that the present O.S had been opposed through the Replying Affidavits dated 24.01.2024 which he adopted as his evidence in chief.
  3. Further to the Replying Affidavit dated 24.01.2024, the 3rd Defendant relied on the Replying Affidavits dated 21.06.2021 and filed on the 23.06.2021.
  4. The 3rd Defendant confirmed that he was well familiar with the property known as LR.NO. TRANSMARA/POROKO/221.
  5. The 3rd Defendant informed the Court that they were born on the property known as LR.NO.TRANSMARA/POROKO/221 and have been living on the same ever since.
  6. The 3rd Defendant stated that he was a son of the late NAMISI OLE KIPTEK who passed away in the year 2011.
  7. Upon the demise of the late NAMISI OLE KIPTEK, the 3rd Defendant obtained Letters of Administration Ad-Litem on the 27.11.2019.
  8. It was after the 3rd Defendant obtained the Letters of Administration Ad-Litem that they came to learn about the present O.S.
  9. However, at that time, the late NAFTALI NYABERI MAGERERE had obtained an Ex-parte Judgement through a claim of Adverse possession.
  10. Based on this Ex-parte Judgement, the late NAFTALI NYABERI MANGERERE instituted Criminal Charges against the family of NAMISI OLE KIPTEK and they were arrested and charged in court.
  11. However, at that time the late NAFTALI NYABERI MANGERERE was not in occupation of the property known as LR.NO.TRANSMARA/POROKO/221
  12. The 3rd Defendant informed the Court that the Criminal Case was still on going in the lower Court.
  13. The 3rd Defendant also testified that an Application to set-aside the Ex-parte Judgement obtained by the late NAFTALI NYABERI MANGERERE was made and the said Ex-parte Judgement was subsequently set-aside on the 18.02.2021.
  14. The Court then directed that the claim of Adverse Possession be heard afresh with the participation of all the parties.
  15. The 3rd Defendant then produced the following documents in support of their case;-

DW 1 EXHIBIT 1- Copy of the Letters of Administration Ad-Litem dated 27.11.2019 in the name of the 3rd Defendant.

DW 1 EXHIBIT 2- Copy of the Ruling setting-aside the Ex-parte Judgement dated 18.02.2021.

DW 1 EXHIBIT 3- Copy of the Ex-parte Judgement pronounced on the 20.02.2015.

DW 1 EXHIBIT 4- Copy of the Green Card of LR.NO.TRANSMARA/POROKO/221 dated 24.01.2024.

DW 1 EXHIBIT 5- Copy of the Charge Sheet of the proceedings known as KILGORIS CRIMINAL CASE NO. 867 OF 2019.

  1. Referring to DW 1 EXHIBIT 4- the 3rd Defendant stated that the Green Card of LR.NO.TRANSMARA/POROKO/221 registered the late NAMISI OLE KIPTEK as the lawful owner.
  2. The 3rd Defendant confirmed that Entry No. 2 in the Green Card of LR.NO.TRANSMARA/POROKO/221 is a restriction registered on 19.05.2009 by the 1st Defendant who is the wife of the late NAMISI OLE KIPTEK.
  3. The 3rd Defendant reiterated that since 2009, the property known as LR.NO.TRANSMARA/POROKO/221 was occupied by the family of the late NAMISI OLE KIPTEK.
  4. The 3rd Defendant insisted that there was no activities that are being undertaken by the family of the late NAFTALI NYABERI MANGERERE on the property known as LR.NO.TRANSMARA/POROKO/221.
  5. The 3rd Defendant therefore sought the Court to cancel the name of NAFTALI NYABERI MANGERERE on the property known as LR.NO.TRANSMARA/POROKO/221 and reinstate the name of the late NAMISI OLE KIPTEK as the rightful and lawful owner.
  6. On cross-examination, the 3rd Defendant stated that he was born in 1983 and is a holder of a Kenyan ID No. 23561152.
  7. The 3rd Defendant informed the Court that he had other siblings with the eldest being YUSUF NAMISI, NICODEMUS NAMISI, FRANCIS NAMISI and SEBASTIAN NAMISI.
  8. The 3rd Defendant testified that YUSUF NAMISI resides on the property known as LR.NO.TRANSMARA/POROKO/221 as well as the other siblings.
  9. The 3rd Defendant denied knowledge of a person known as ORANG NYANGWESO.
  10. The 3rd Defendant admitted that the 1st Defendant was from the Kisii Community, a village known as NYABOTERERE.
  11. The 3rd Defendant denied the allegations that they moved into the property known as LR.NO.TRANSMARA/POROKO/221 in the year 2009.
  12. The 3rd Defendant further insisted that the tea currently planted on the property known as LR.NO.TRANSMARA/POROKO/221 was planted by their father the late NAMISI OLE KIPTEK.
  13. Similarly, the 3rd Defendant confirmed that the various trees planted on the property known as LR.NO.TRANSMARA/POROKO/221 were planted for commercial use by their late father NAMISI OLE KIPTEK.
  14. The 3rd Defendant admitted that at the time the Agreements For Sale were executed in the year 1975, he was not yet born.
  15. The 3rd Defendant stated that he was aware of claim by one ZACHARIA OTUNDO because he had filed Criminal Charges against them over the property known as LR.NO.TRANSMARA/POROKO/220.
  16. The 3rd Defendant admitted that title to LR.NO.TRANSMARA/POROKO/221 is in the name of the late NAFTALI NYABERI MAGERERE.
  17. On re-examination, the 3rd Defendant informed the Court that the Criminal Case No.555 of 2020 was filed by the Plaintiff and relates to the property known as LR.NO.TRANSMARA/POROKO/221.
  18. However, the proceedings known as Criminal Case No. 555 of 2020 was dismissed on the 25.08.2023.
  19. The 3rd Defendant insisted that the Plaintiff and the family of the late NAFTALI NYABERI MAGERERE are not on the ground.
  20. The 3rd Defendant denied that the property known as LR.NO.TRANSMARA/POROKO/221 was ever sold to the late NAFTALI NYABERI MANGERERE.
  21. The 3rd Defendant informed the Court that in all the Criminal proceedings, the family of the late NAFTALI NYABERI MANGERERE admitted that the family of the late NAMISI OLE KIPTEK are the ones in occupation.
  22. On reference to the PLAINTIFF’S EXHIBIT 3, the 3rd Defendant pointed out that the Vendor was DANIEL SIRAYO OLE KOIKO.
  23. The 3rd Defendant stated that the Vendor was not their father known as NAMISI OLE KIPTEK.
  24. The 3rd Defendant further stated that the late NAMISI OLE KIPTEK was not educated and could therefore not append any signature of the said Agreements For Sale.
  25. At the end of this re-examination, the 3rd Defendant was discharged from the witness box.
  26. The second Defence witness was DANIEL KALASINGA who was marked as DW 2.
  27. DW 2 introduced himself as a resident of Poroko who was engaged in agricultural activities.
  28. DW 2 also informed the Court that he was a retired Chief of Poroko Location between the periods of 1996 to 2003.
  29. DW 2 stated that he was born within Poroko area and has lived in the same area his entire life.
  30. DW 2 confirmed that he was familiar with the late NAMISI OLE KIPTEK and his entire family on the basis that they live in the same village.
  31. DW 2 testified that the late NAMISI OLE KIPTEK comes from a village known as Sololo Village which is next to the boundary.
  32. DW 2 stated that the property known as LR.NO.TRANSMARA/POROKO/221 belongs to the late NAMISI OLE KIPTEK.
  33. DW 2 denied the allegation that the property known as LR.NO.TRANSMARA/POROKO/221 was ever occupied by the family of the late NAFTALI NYABERI MANGERERE.
  34. DW 2 reiterated that the property known as LR.NO.TRANSMARA/POROKO/221 has been in occupation of the late NAMISI OLE KIPTEK since it was created until he passed away and buried on the same property.
  35. In his view, the property known as LR.NO.TRANSMARA/POROKO/221 belongs to the late NAMISI OLE KIPTEK.
  36. DW 2 informed the Court that during his time as the Area Chief, there was no complaint that had been received from the family of the late NAFTALI NYABERI MANGERERE that the late NAMISI OLE KIPTEK was occupying their property known as LR.NO.TRANSMARA/POROKO/221.
  37. DW 2 therefore concluded his testimony by stating that it was not true that the family of NAFTALI NYABERI MANGERERE is the one in occupation of the property known as LR.NO.TRANSMARA/POROKO/221.
  38. On cross-examination, DW 2 denied knowledge of the Plaintiff in the present O.S.
  39. DW 2 also denied knowledge of whether the Plaintiff’s late father NAFTALI NYABERI MANGERERE is the one that planted the tea on LR.NO.TRANSMARA/POROKO/221 or not.
  40. According to DW 2, the property that had been planted tea is the one that is occupied by one ZACHARIA OTUNDO.
  41. DW 2 stated that the Blue Gum Trees on the property known as LR.NO.TRANSMARA/POROKO/221 were planted by the late NAMISI OLE KIPTEK.
  42. DW 2 informed the Court that in the year 1975 when the Agreements For Sale were executed, he was still in school and is not aware of the same.
  43. DW 2 denied any knowledge of a house built by the late NAFTALI NYABERI MANGERERE which was subsequently burnt down during the tribal clashes.
  44. DW 2 clarified to the Court that the person known as ZACHARIA OTUNDO purchased land from LERINA OLE KIPTEK who is a brother to NAMISI OLE KIPTEK.
  45. In essence therefore, DW 2 denied that one NYAMBANE MIRERA bought any land from the late JOSEPH NAMISI.
  46. DW 2 confirmed that JOSEPH NAMISI married in 1974 and had 9 children and the first child is known as BENARD NAMISI.
  47. DW 2 admitted being familiar with one ORANG NYAMUONO who is the son of JOSEPH NAMISI.
  48. However, DW 2 could not confirm where the said ORANG NYAMUONO resides.
  49. On re-examination, DW 2 reiterated that the trees and developments on the property known as LR.NO.TRANSMARA/POROKO/221 were done by the late NAMISI OLE KIPTEK.
  50. DW 2 insisted that the property known as LR.NO.TRANSMARA/POROKO/221 has been in occupation of the late NAMISI OLE KIPTEK and his family.
  51. DW 2 confirmed that there has never been a dispute of ownership and/or occupation of the property known as LR.NO.TRANSMARA/POROKO/221 which belongs to the late NAMISI OLE KIPTEK who has even been buried on the same property.
  52. At the end of this re-examination, DW 2 was discharged from the witness box and the Defence closed their case.
  53. The Court at the end of the hearing directed the parties to file their final submissions.
  54. The Plaintiff filed his submissions dated 20.05.2024 while the Defendants filed their submission dated 06.06.2024.
  55. The Court has gone through the pleadings filed by the parties, the evidence adduced and the submissions therein, and the issues for determination can be summarised as follows;-

ISSUE NO. 1- HAS THE PLAINTIFF COMPLIED WITH THE INGREDIENTS OF ADVERSE POSSESSION OVER A PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

ISSUE NO. 2- IS THE PLAINTIFF ENTITLED TO AN ORDER OF ADVERSE POSSESSION OVER A PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

ISSUE NO. 3- IS THE PLAINTIFF ENTITLED TO ANY OTHER OF EVICTION AGAINST THE DEFENDANTS OVER THE PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

ISSUE NO. 4- IS THE PLAINTIFF ENTITLED TO A PRAYER OF PERMANENT INJUNCTION AGAINST THE DEFENDANTS OVER A PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT O.S?

  1. The Court having identified the issues for determination as outlined hereinabove, the same will now be discussed below.

ISSUE NO. 1- HAS THE PLAINTIFF COMPLIED WITH THE INGREDIENTS OF ADVERSE POSSESSION OVER A PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

  1. The first issue for determination is whether or not the Plaintiff has satisfied the ingredients of Adverse possession as is required by law.
  2. In the celebrated case of MTANA LEWA -VERSUS- KAHINDI NGALA MWAGANDI (2015) eKLR, the ingredients of adverse possession were highlighted as follow; -

“For one to succeed in a claim of adverse possession, one must prove and demonstrate that he has occupied the land openly, that is without secrecy, without force, and without license or permission of the land owner, with the intention to have the land. There must be an apparent dispossession of the land from the land owner. These elements are contained in the latin maxim nec vi,nec cla,nec precario.”

159.  In another case of KISUMU CIVIL APPLICATION NO. 110 OF 2016 BETWEEN RICHARD WEFWAFWA SONGOI-VERSUS- BEN MUNYIFWA SONGOI (2020) eKLR, the Court of Appeal crystallised the ingredients of Adverse Possession as follows; -

(a) On what date he came into possession.

(b) What was the nature of his possession?

(c) Whether the fact of his possession was known to the other party.

(d) For how long his possession has continued and

(e) That the possession was open and undisturbed for the requisite 12 years.

160.  Based on the above guidance, the Court will now proceed to evaluate the Plaintiff’s claim of adverse possession and decide on whether or not the above ingredients have been met.

161.  The first ingredient the Plaintiff has to satisfy is the date upon which the late NAFTALI NYABERI MANGERERE acquired and entered into the portion measuring approximately 13.5 acres on the property known as LR.NO.TRANSMARA/POROKO/221.

162.   According to the Supporting Affidavit sworn on the 13.10.2023 by the Plaintiff herein, the late NAFTALI NYABERI MANGERERE is alleged to have purchased two portions of land measuring 7 acres and 6.5 acres from the property known as LR.NO.NAROK/TRANSMARA/POROKO/101.

163. The Plaintiff who is a son and Administrator of the late NAFTALI NYABERI MANGERERE through the Letters of Administration dated 07.01.2022 which was produced as PLAINTIFF EXHIBIT 2 produced two documents to proof the purchase of the two portions of land measuring 7 acres and 6.5 Acres.

164. The Plaintiff produced an Agreement For Sale dated 21.11.1975 which was marked as PLAINTIFF’S EXHIBIT 3.

165.  The PLAINTIFF’S EXHIBIT 3 was between one DANIEL SIRAYO OLE KOIKE and NYABERI MANGERERE over a portion of 7 acres within a PLOT.NO.101 in POROKO ADJUDICATION SECTION.

166.   The Plaintiff in his testimony before this Court stated that the name DABIEL SIRAYO OLE KOIKE indicated in the Agreement For Sale dated 21.11.1975 was later discovered to be a faults name of the late NAMISI OLE KIPTEK.

167.   PW 2 who is a son in law to the late NAFTALI NYABERI MANGERERE collaborated the evidence of the Plaintiff by indicating that the name DANIEL SIRAYO OLE KOIKE which appeared on the Agreement For Sale dated 21.11.1975 was faults and actually the correct name of the Vendor whose actual name was NAMISI OLE KIPTEK.

168.  PW 2 insisted that the person known as DANIEL SIRAYO OLE KOIKE and NAMISI OLE KIPTEK referred to one and the same person.

169. The Defendants on the other hand has disputed the Agreement For Sale dated 21.11.1975 on the basis that the person indicated as DANIEL SIRAYO OLE KOIKE is not the same as NAMISI OLE KIPTEK.

170.  The Defendants testimony was that the late NAMISI OLE KIPTEK who was the owner of the PLOT.NO.101 within POROKO ADJUDICATION SECTION and later LR.NO.TRANSMARA/POROKO/101 never entered into any Agreement For Sale dated 21.11.1975.

171.   In essence therefore, the Defendants further testified that the late NAFTALI NYABERI MANGERERE never acquired any ownership rights and/or took possession of any portion of land within the property known as PLOT.NO.101 within POROKO ADJUDICATION SECTION as alleged by the Plaintiff.

172.   In the midst of these two conflicting versions by the Plaintiff and the Defendants, the Court draws its attention to a letter dated 16.10.1975 which was produced as PLAINTIFF’S EXHIBIT 8.

173.  This letter dated 16.10.1975 is titled “LAND AGREEMENT-POROKO ADJUDICATION SECTION and states as follows;-

“Mimi Amisi Ole Kiptek nimekubali kugawanyia sehemu ya shamba langu kwa   bwana Nyaberi Mangerere kwa wakati huu ninajua kazi ya Land Adjudication ilimalizika Lakini tumeagana mbaka wakati Title Deed itakapeamua ndipo maneno yetu Itangaliwa na nyinyi serikali yetu.Nambari ya Shamba langu ni 101”

174.   This particular letter dated 16.10.1975 produced by the Plaintiff as PLAINTIFF EXHIBIT 8 has not been challenged by the Defendants either in the Replying Affidavit dated 24.01.2024 or their testimonies before the Court.

175.   This letter dated 16.10.1975 is of significance because it confirms the true owner of the property known as PLOT.NO.101 within POROKO ADJUDICATION SECTION to belong to one NAMISI OLE KIPTEK.

176.  Similarly, this letter dated 16.10.1975 also expresses the intention and the agreement by NAMISI OLE KIPTEK to sale a portion of the PLOT.NO.101 within POROKO ADJUDICATION SECTION to the late NAFTALI NYABERI MANGERERE.

177. Turning back to the Agreement For Sale dated 21.11.1975 which was produced as PLAINTIFF EXHIBIT 3, Paragraph 4 states as follows; -

“4. The Vendor shall put the Purchaser into possession of the said piece of land on the signing hereof.”

178.   Based on the contents of the PLAINTIFF’S EXHIBIT 8 and the PLAINTIFF’S EXHIBIT 3, this Court hereby makes a finding that the late NAFTALI NYABERI MANGERERE took possession of the initial 7 acres within the PLOT.NO.101 within POROKO ADJUDICATION SECTION on or about the year 1975 as testified by the Plaintiff and the PW 2 herein.

179.  The second portion measuring approximately 6.5 Acres was contained in an Agreement For Sale dated 11.12.1977 which was produced as PLAINTIFF’S EXHIBIT 4.

180.  In this Agreement for Sale dated 11.12.1977, the late NAMISI OLE KIPTEK accepted to sale an additional 6.5 acres to the late NAFTALI OLE KIPTEK.

181.   The wording of the Agreement for Sale dated 11.12.1977 was that the 6.5 Acres being disposed off was in addition to the land that had been earlier purchased by the late NAFTALI NYABERI MANGERERE.

182.   This particular Agreement For Sale dated 11.12.1977 was not challenged in terms of its validity and/or contents by the 3rd Defendant and/or his witness DW 2.

183.   The Agreement For Sale dated 11.12.1977 further contains the dates of payment of the Purchase Price by the late NAFTALI NYABERI MANGERERE to the late NAMISI OLE KIPTEK.

184.   This Court therefore makes a finding that the late NAFTALI NYABERI MANGERERE took possession and/or entered the portion of 6.5 acres within the property known as PLOT.NO.101 within POROKO ADJUDICATION SECTION belonging to the late NAMISI OLE KIPTEK on or about the year 1977.

185. The second ingredient to be addressed is what is the nature of the possession enjoyed by the Plaintiff.

186.   The possession by the Claimant in a claim of adverse possession must be one that is open and notorious to the title of the owner of the said property.

187.   The Plaintiff and PW 2 testified that between the periods of 1975 until 2009, the late NAFTALI NYABERI MANGERERE together with his family took possession on the entire 13.5 acres within the PLOT.NO.101 within POROKO ADJUDICATION SECTION.

188.   The Plaintiff and PW 2 categorically stated that the late NAFTALI NYABERI MANGERERE possession was characterised by the establishment of a homestead, planting of trees, tea and sugar cane.

189.  However, in the year 1992, there were tribal clashes between the Kisii and Maasai Communities and the homestead of the late NAFTALI NYABERI MANGERERE was burnt down.

190.   This hostility made the family of the late NAFTALI NYABERI MANGERERE to relocate the homestead from the portion they occupied on the property known as LR.NO.TRANSMARA/POROKO/101 but they continued their occupation through agricultural activities.

191.   However, in the year 2009, the family of the late NAMISI OLE KIPTEK including the 1st to 3rd Defendants re-entered the property known as LR.NO.TRANSMARA/POROKO/221 thereby necessitating the filing of the original OS before the High Court at Kisii.

192.   The 3rd Defendant as well as DW 2 denied the occupation of the late NAFTALI NYABERI MANGERERE and/or his family.

193. The Plaintiff testified that he was born on the property known as LR.NO.TRANSMARA/POROKO/221 and has lived on the said property throughout his life.

194.   DW 2 also testified that the property known as LR.NO.TRANSMARA/POROKO/221 has been in occupation and/or use of the late NAMISI OLE KIPTEK until his death and burial on the same property.

195.   The 3rd Defendant insisted that the Trees and tea that is on the property known as LR.NO.TRANSMARA/POROKO/221 were planted by his father the late NAMISI OLE KIPTEK and they tea is sold to the factory.

196.   Based on Paragraph 3 of the PLAINTIFF’S EXHIBIT 3 as well as the PLAINTIFF’S EXHIBIT 8, it was a finding of this Court that the late NAFTALI NYABERI MANGERERE took possession in the year 1977.

197.   Based on this possession and use by the late NAFTALI NYABERI MANGERERE, various developments were undertaken until the year 2009.

198.    The denial by the 1st to 3rd Defendants that the late NAFTALI NYABERI MANGERERE was not in occupation of the property known as LR.NO.TRANSMARA/POROKO/221 would require them to provide proof of their occupation.

199.  Section 107 of the Evidence Act, Cap 80 requires that he how alleges must prove.

200. The Court’s expectation is that the Defendants herein would have produced and/or placed before the Court at least pictures of their homestead, the graveyard of the late NAMISI OLE KIPTEK and other agricultural activities that have been undertaken by their family.

201.   A presentation of the Share Certificate of the Tea Factory which they sell the Tea from the property known as LR.NO.TRANSMARA/POROKO/221 would indeed confirm that the tea was planted by the family of the late NAMISI OLE KIPTEK.

202.   Unfortunately, the 3rd Defendant and/or the DW 2 failed to present any proof of their occupation on the property known as LR.NO.TRANSMARA/POROKO/221.

203. In conclusion, this Court makes a finding that indeed the late NAFTALI NYABERI MANGERERE’S occupation on the property known as LR.NO.TRANSMARA/POROKO/221 since year 1977 has been one which is open and notorious to the ownership of the late KIPTEK OLE KIPTEK as is required by law.

204.  The third aspect for discussion is whether the owner of the land was aware of the claimant’s possession.

205.   The Plaintiff’s pleadings and/or the testimony indicated that the portion measuring 13.5 acres within the property known as PLOT.NO.101 within POROKO ADJUDICATION SECTION was occupied through two Agreements For Sale between the late NAFTALI NYABERI MANGERERE and the late NAMISI OLE KIPTEK.

206.   In other words, the entry and occupation of the 13.5 acres on the property known as LR.NO.TRANSMARA/POROKO/101 and later the sub-division known as LR.NO.TRANSMARA/POROKO/221 by the late NAFTALU NYABERI MANGERERE was with the knowledge and consent of the late NAMISI OLE KIPTEK.

207.  The fourth ingredient is the period within which the possession has before the Claimant filed the claim for adverse possession.

208. The Court in the first ingredient had a finding that the late NAFTALI NYABERI MANGERERE occupied the first portion of 7 acres in the year 1975 and the second portion measuring 6.5 acres in the year 1977.

209.   The portion of 13.5 acres has been in occupation and use of the late NAFTALI NYABERI MANGERERE until 2009 when the Defendants entered into the property known as LR.NO.TRANSMARA/POROKO/221 and the original OS was filed before the High Court at Kisii.

210.  The last ingredient is to ascertain the period within which the occupation and/or use has lasted before filing of the claim for adverse possession.

211.  Based on the finding in the fourth ingredient, the period which the late NAFTALI NYABERI MANGERERE occupied the portion measuring 13.5 acres within the property known as LR.NO.TRANSMARA/POROKO/221 was between 1977 to 2009.

212.  This period of time is approximately 32 years which is more than the 12 years required under Section 7 of the Limitation of Actions Act.

ISSUE NO. 2- IS THE PLAINTIFF ENTITLED TO AN ORDER OF ADVERSE POSSESSION OVER A PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

213.  Based on the findings contained in Issue No. 1, this Court hereby makes a finding that the Plaintiff has proved his claim of adverse possession on a portion of 13.5 acres within the property known as LR.NO.TRANSMARA/POROKO/221 registered in the name of the late NAMISI OLE KIPTEK.

ISSUE NO. 3- IS THE PLAINTIFF ENTITLED TO ANY OTHER OF EVICTION AGAINST THE DEFENDANTS OVER THE PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

214.   The Plaintiff having satisfied this Court that the late NAFTALI NYABERI MANGERERE is entitled to the portion measuring 13.5 acres on the property known as LR.NO.TRANSMARA/POROKO/221 owned by the late NAMISI OLE KIPTEK, then it goes without saying that the family of the late NAFTALI NYABERI MANGERERE is entitled to the exclusive use and occupation of the 13.5 acres and any other person who is claiming any adverse occupation or right should vacate and/or be evicted from the said portion measuring 13.5 acres within the property known as LR.NO.TRANSMARA/POROKO/221.

ISSUE NO. 4- IS THE PLAINTIFF ENTITLED TO A PRAYER OF PERMANENT INJUNCTION AGAINST THE DEFENDANTS OVER A PORTION OF 13.5 ACRES ON THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221?

215.   In addition to the above relief of possession, the family of the late NAFTALI NYABERI MANGERERE is also entitled to an order of permanent injunction against the Defendants and the family of the late NAMISI OLE KIPTEK at large from interfering and/or re-entering the portion measuring 13.5 acres within the property known as LR.NO.TRANSMARA/POROKO/221 which will be against the findings of this Court.

ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT O.S?

216.  Costs usually follow the event and in the present OS, the Plaintiff has succeeded hence the Defendants will bear the costs.

CONCLUSION

217.  In conclusion therefore, this Court makes the following Orders as appertains the Re-Amended Originating Summons dated 13.10.2023;-

  1. THE RE-AMENDED ORIGINATING SUMMONS DATED 13.10.2023 IS MERITED.
  2. THE PLAINTIFF ON BEHALF OF THE ESTATE OF NAFTALI NYABERI MANGERERE THE PLAINTIFF HEREIN HAS ACQUIRED TITLE OF 13.5 ACRES WITHIN THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221 BY WAY OF ADVERSE POSSESSION.
  3. THE 1ST DEFENDANT AND/OR THE ADMINISTRATORS OF THE ESTATE OF THE LATE NAMISI OLE KIPTEK ARE HEREBY DIRECTED TO EXECUTE ALL DOCUMENTS NECESSARY TO FACILITATE THE TRANSFER OF THE SAID PORTION OF LAND MEASURING 13.5 ACRES WITHIN THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221 WITHIN 60 DAYS FROM THE DATE OF THIS JUDGEMENT.
  4. IN THE EVENT THE DEFENDANTS FAIL TO EXECUTE THE DOCUMENTS REQUIRED IN THE TRANSFER OF THE 13.5 ACRES WITHIN THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221, THE DEPUTY REGISTRAR OF THIS COURT WITH LEAVE OF THE COURT OBTAINED ON A FORMAL APPLICATION MADE IN THIS COURT FOR THAT PURPOSE SHALL EXECUTE THE SAID DOCUMENTS TO FACILITATE THE TRANSFER OF THE 13.5 ACRES OF THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221.
  5. THE DEFENDANTS ARE FURTHER DIRECTEd TO VACATE AND/OR HAND OVER POSSESSION OF THE 13.5 ACRES WITHIN THE PROPERTY KNOWN AS LR.NO.TRANSMARA/POROKO/221 WITHIN 90 DAYS FROM THE DATE OF THIS JUDGEMENT FAILURE TO WHICH AN EVICTION ORDER SHALL AUTOMATICALLY BE ISSUED.
  6. THE DEFENDANTS, THEIR AGENTS, EMPLOYEES, SERVANTS AND/OR ANY OTHER PERSON WHO DERIVES WITH OWNERSHIP AND/OR OCCUPATION RIGHTS FROM THE DEFENDANTS BE AND ARE HEREBY INJUNCTED BY WAY OF A PERMANENT INJUCTION OF INTERFERING, RESIDING, OCCUPATING, USING AND/OR IN ANY MANNER WHATSOEVER INTERFERING WITH THE OWNERSHIP AND USE OF THE 13.5 ACRES WITHIN LR.NO.TRANSMARA/POROKO/221 BELONGING TO THE ESTATE OF THE LATE NAFTALI NYABERI MANGERERE.
  7. THE DEFENDANTS WILL BEAR THE COSTS OF THIS PROCEEDING.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 25.07.2024

IN THE PRESENCE OF:

COURT ASSISTANT:MR NGENO

ADVOCATE FOR THE PLAINTIFF:MR.SAGWE

ADVOCATE FOR THE DEFENDANTS:MR.SHIRA

Details

Delivered
Court rank
Environment and Land Court
Station
Kilgoris Environment and Land Court (Environment and Land Court at Kilgoris Environment and Land Court)
Division
Environment and Land Court
Case type
Civil Suit
Bench
E. M. WASHEJ

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