ror m REPUBLIC OP KENYA INTHE ENVIRON Wir LAND COURTS ATKISH SE noe NI No, KC fy, opt 2015 oe. 0/00. ae “MULTI TRACK chaIM |Z HENARD OGALO OwRo ARCHELINUS NOKWE ADIE} JULIUS ROY OKELOKOIWaNe ‘Le 2. 3. /PLAINT. 1. The 1" plaintiffis a female adult of sound mind residing and working for subsistence as & Seesant at Siruti village in Kanyamgony sublocation of West Sakwa location in Awendo District in Migori County, His address for service for the purposes of this suit shall be care of M/s G.S. Okoth & Company Advocates, Legacy Plaza, Ground floor, P.O. Box 495-4030, Homa Bay. 2, The 2™ plaintiffis a male adult of sound mind residing and working as a peasant at Siruti village in Kanyamgony sublocation, West Sakwa location, Awendo District. His address for service for the purposes of this suit shall be care of M/s G.S. Okoth & Company Advocates, Legacy Plaza, Ground floor, P.O. Box 495-40300, Homa Bay. 3. The I* defendant is a male adult of sound mind residing and carrying on business at Awendo Town, His address for service for the purposes of this suit shall be care of Ranjira Primary School, Kombok sublocation of Central Sakwa location of P.O. Box 47- 40405, Sare Awendo. 4. The 2” and 3 defendants are male adults of sound mind residing and working for gain in Kisumu County. Their address for service for the purposes of this suit shall be care of Tom Owuor Gari of Kamgundho sublocation in North Kanyamkago location of P.O. Box e 4607-40100 Kisumu and P.O. Box 2877-40100 Kisumu respectively. SUMMONS TO BE SERVED THRO? PLAINTIFFS ADVOCATES OFFICE 5. The plaintiffs are the widow of Angwango Okelo and the son of Odhiambo Okelo respectively and at all times material to this case the plaintiff's have occupied and still ‘occupy the parcels of land known as “North Sakwa/Kanyamgony/1070” measuring 2.0 hectares and “North Sakwa/Kanyamgony/1040" measuring 1.9 hectares, respectively. " At the commencement of Land Adjudication in Kanyamgony Adjudication section in ‘Adjudication Section measuring 1.97 acres and Angwango Okelo was recorded as the ‘proprietor of Land Parcel No. 57 Kanyamgony Adjudication Section measuring 2.05 1971 Odhiambo Okelo was recorded as the proprietor of land parcel No. 56 KanyamgonyTh ane in the year 1971 the 1" defendant purchased a Vand Parcel No, $6 and another contiguous portion measuring 2 lo, 57 from Odhiambo Okelo and Angwango Okelo respectively (1.6 hectares) at a price of Shs.800/= per acre ing each \ his portion of 2 acres. sy 8. On orabout the 7 day of August 1978 the A objection to the Adjudication Register (AR) for the suk n of the : Ae 56 and $7 Kanyamgony Adjudication Section so that the 1" defend on eae " Angwango Okelo of their parcels of land eo \djudication. , "specify in the objection the sizeof the land purchased as a eon orion ‘given to the 1* defendant was made to measure 2 hectares (5 acres) in respect of Land sa parcel No, 57 and 1.9 hectares (4.75 acres) in respect of parcel No. 56 and then registering each of those portions as PNo.1070 and PNo. 1040 respectively and leaving PNo. 56 to measure 0.07 of « hectare and PNo. $7 to measure 0.05 of a hectare and be registered in the names of the two vendors. 10. In the month of August 1983, having obtained the title deeds for Land Parcel No. North ‘Sakwa/Kanyamgony/1040 and 1070 registered in his name on the 9” September 1981, the 1" defendant filed suit at the Chief Magistrate's Court at Kisii in Civil Case No. 337 of 1983 against Angwango Okelo and Odhiambo Okelo respectively in both praying for aan order of eviction but which suit were later consolidated as Kisii High Court Civil Case No. 34 of 1988 which suit abated after the death of both defendants since the same was not heard and determined. : order to permanently deprive the plaintfis and the othe "deceased vendors of their equitable interest in the said land, the 1* defendant alienated Land Parcel No. North Sakwa/Kanyamgony/1070. PARTICULARS OF FRAUD ‘The first defendant was fraudulent in that; : 2) be failed to specify during the subdivision and objection to the Adjudication register the size ofthe land he had purchased. ) the objection was filed and prosecuted by Ismael Owiro Akoko who was not a party tothe sale contract, ©) henever took possession of the land at all since the purchase in 1971. 4d) entering into contracts of sale of land by transfering documents without being able to show the land on the ground, that there was no land to sell save for the forged 2 defendant the whole of Land Parcel No. North filed to identify the same on the ground sold13. On diverse dates betwcen 9" September 1981 and to-date the plaintiffs and all oe beneficiaries ofthe estates of Odhiambo Okelo and Angwango Okelo have enjove, peaceful, continuous uninterrupted occupation and possession ‘of Land Parcel No. Not * Sakwa/Kanyamgong/1040 and Parcel No, North Sakwa/Kanyamgony/1070 adverse the registered interest of the three defendants therein 14. The plaintiffs shall invoke the doctrine of nemo dat quod non habet against the " defendant, 15. The 1* plaintiff's husband, Angwango Okelo died sometime in the year 1998 whereas Odhiambo Okelo died in the year 2005 and thereafter the 2 defendant with full knowledge of the fraud and without verifying whether there was land on the ground to be vested in him purported to purchase Land Parcel No. 1070 from the 1" defendant and thereafter also transferred it tothe 3° defendant who was fully aware of the difficulties raised by the initial fraud and therefore the 2” and 3" defendants cannot claim to be bona fide purchaser for value without notice of fraud. 16, Sometime in the month of August 2013 the 3° defendant reported to the 1* plaintiff demanding to be shown where Land Parcel No. Sakwa/Kanyamgony/1070 which he had purportedly purchased thus alerting the plaintiffs about the frau. 17. Despite several demands having been made to the defendants to voluntarily abandonthe 4 false claims to the whole of the said parcels and to limit his elaim to only 4 acres, the defendants refuse and or neglect to rectify the same thus rendering this suit necessary. 18. This cause of action arose in Awendo District in Migori County and the dispute relates to the Environment and Land Courts Act and this Honourable Court has jurisdiction to hear and determine the same. 19, The plaintiff aver that there is no other suit pending and that there have been no previous proceedings in any court between the plaintiffs and the defendants over the same subject matter and that the cause of action relates to the plaintiffs named in the plaint. REASONS WHEREFORE the plaintiff prays to this Honourable Court to enter judgment for , the plaintffS against the defendants jointly, severally for:~ 4) An onder of declaration that the first defendant, Benard Ogalo Owito, albeit registered as the sole proprietor of Land Parcels Nos. “North Sakwa/Kanyamgony/1040 and 1070 measuring 1.9 hectares and 2.0 hectares respectively on first registration, holds the same in trust for the estate of Odhiambo Oketo and the estate of Angwango Okelo respectively and that the contracts of sale of land entered in 1971 to 1978 were vitiated by the fraud b) An order that the transfer of Land Parcel No, North Sakwa/Kanyamgony/1070 to Archelius Nokwe Adienge on the 29™ May 2008 and the further transfer of the same to ‘Julius Roy Okello Kojwang on 8" July 2013 is null and void ab initio. ; ©) An order of declaration that the plaintiffs on behalf of the estate of Odhiambo Okelo and ‘Angwango Okelo have acquired prescriptive rights by adverse possession over Land Parcels Nos. North Sakwa/Kanyamgony/1040 and 1070 respectivelyiG (Pursuane to Order 4 rule 2 Civil Procedure Rules) LAENIFA ACHOLA ANGWANGO of Post Office Box 78-40405 Sare - Awendo do hereby make oath ‘and state as follows: ‘+ That am the abovenamed 1 plant in this suit and know the ecumstances con tu ‘sause of action and Iam further instructed, authorized and hence competent swear this affidavit 2. That my true place of abode is at Siri village, Kanyamgony sublocation of West Sakwa location i in Awendo District within the Republic of Kenya, 2 3+ That Ihave read the plaint and I verify that the facts stated inthe said plait are true and correct. and in accordance with my instructions. i ‘4 That | hereby verify that the facts stated and pleaded in paragraph 19 of the Plant accompanied by this affidavit are correct and true. 5. That the facts deponed to inthis affidavit are trie tothe best of my knowledge, information and belief SWORN by the said ae ACHOLA ANGWANGO: this, 1.8. { BEFORE ME. 50R0 KAOSA j|APHET OSORO KA wMADVOCATE AND) COMMISSIONER FUR OATHS: 3 RI, HOMA BAY) ee ‘Magistrate/Commissioner for Oaths DRAWN & FILED BY: GS. OKOTH& CO. ADVOCATES LEGACY PLAZA, GROUND FLOOR P.O. BOX 495-40300_ es HOMA BAY(Pursuinsio Order 4 rde 9 Chit soerre Rules : 1 JOSEPH ANGWEN ODHIAMBO of Post Office Box ey ‘of Post Office Box 78-40405 Sare - Awendo do hereby make oath 1. That lam the abovenamed 2" plaintiff in this suit and Uknow the circumstances constititing the ‘cause of action and I am further instructed, authorized and hence competent to swear this affidavit. 2. That my true place of abode is at Siruti village, Kanyamgony sublocation of West Sakwa location in Awendo District within the Republic of Kenya, 3. That Ihave read the plaint and I verify thatthe facts stated in the said plaint are true and correct and in accordance with my instructions. 4. That I hereby verify that the facts stated and pleaded in paragraph 19 of the Plaint accompanied by this affidavit are correct and true. 5. That the facts deponed to in this affidavit are true to the best of my knowledge, information and belief. SWORN by the said JOSEPH ANGWEN ODHIAMBO at Kis this Ge: ae day of. (CLC BEFORE ME DEPONENT 8 = é 3 g 3 Magistrate/Commissioner for Oaths DRAWN & FILED BY: G.S. OKOTH & CO. ADVOCATES = LEGACY PLAZA, GROUND FLOOR P.O. BOX 495-40300 HOMA BAY.