Daniel Kipkemboi Bett & 7 others v Margaret Wanjiku Chege [2015] KEELC 205 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 55 OF 2009

DANIEL KIPKEMBOI BETT ..................1ST PLAINTIFF

DAVID KIBITOK KEMBOI ...................2ND PLAINTIFF

JULIUS KIMELI ................................ 3RD PLAINTIFF

JOSEPH RONO ................................. 4TH PLAINTIFF

KIPKEMBOI KOGO ........................... 5TH PLAINTIFF

KIPTOO BARNGETUNY ..................... 6TH PLAINTIFF

BERNARD KITARIA........................... 7TH PLAINTIFF

TAMARTA CHEBICHII ....................... 8TH PLAINTIFF

VERSUS

MARGARET WANJIKU CHEGE................. DEFENDANT

J U D G M E N T

 INTRODUCTION

1.  This suit was filed on 17/4/2009 against the defendant by eight plaintiffs.  Five of the plaintiffs that is the 3rd, 5th, 6th, 7th and 8th have since died and their names were struck off the record shortly before the hearing commenced.  The plaintiffs are seeking the following reliefs:-

(a)   A declaration that they are the   rightful and lawful owners of L.R. No.  1800/3 Kaptien Farm and that the  defendant is not entitled to 132.5 acres or any part thereof. 

(b)   A declaration that the defendant is a trespasser in the 132.5 acres of the suit property and eviction order be   issued against her.

(c)   A permanent injunction against the  defendant, either by herself, agents, servants, relatives and any other person claiming under her from entering and/or encroaching and in  any, other way whatsoever interfering with the 132.5 acres of the suit  property.

(d)   Mesne profits

(e)   Costs of this suit

 (f)    Any other relief the Honourable Court  may deem fit and just in the     circumstances.

2.     L.R. No. 1800/3 commonly known as Kaptien Farm  which is about 408 acres is registered in the names of    the first and second plaintiffs.  The property was bought       in 1964 by a group of 18 members who included the   two registered owners. The defendant is occupying   132.5 acres of the property (suit land).

PLAINTIFFS CASE

3.     The plaintiffs testified that they bought L.R. No. 1800/3     (the property) in 1964 from one Denis Campbel.  The       property was bought by a group of 18 persons who came    together and raised some money.  They also took a loan         from the Agricultural Finance Company (AFC).  It was   agreed that the property be registered in the name of the   first and the second plaintiffs.

4.     The loan due to AFC used to be repaid from proceeds of  sale of milk from the members. In or around 1974 it     became difficult for the members to raise money to repay the AFC loan.  This was partly due to low milk   yields and mismanagement of the farm by the leaders.   AFC threatened to auction the property to recover the  loan advanced to the members.  The members then   embarked on ways of raising money to repay the AFC  loan.  They approached a number of persons who could  help them repay the loan.  They finally settled on Appollos Mwangi Muna (Appollos) who had a    neighbouring land L.R. No. 1800/4.

5.     Each of the 18 members agreed to give out 6 acres to Appollos on lease basis so that he could help them repay   the AFC loan.  The 18 members raised 108 acres.  There    was a farm house which lay on a 12 acre parcel.  This too         was given to Appollos which made it 120 acres. Appollos   was to cultivate the 120 acres in return for him paying      the loan which the members owed the AFC.

6.     The farm house was being occupied by two members. Appollos requested to have the farm house for easy of     management of the leased land.  The two members who   were occupying the farm house moved out.  Appollos then brought in his son Chege Mwangi who came in     with his wife Margaret Wanjiku Chege the defendant    herein.  Chege Mwangi died in a road accident on  11/10/1979.  He left the defendant on the suit land   where the defendant is residing todate.

7. Appollos had been given three years to clear the AFC  loan and move out of the leased portion.  He did not    clear the loan within the three years.  He was left to        occupy the leased portion as he repaid the loan. He later    cleared the loan.  He was asked to move out of the leased land but he refused to do so arguing that he had   bought the land.  In 1996 Appollos sent his workers to go   and plough the suit land.  His workers were chased away    by sons of the members.

8.  Appollos moved to Eldoret High Court where he filed a  suit against seven individuals.  He claimed that he was a  shareholder of Kaptien Farm and that he was entitled to   132.5 acres.  This case was transfered to Kitale High Court where it was registered as Kitale HCCC No. 35 of  1997.  The case was fully heard and the same was dismissed with costs to the defendants on 19/11/2002.      As at the time the judgment was delivered, Appollos had died.  He died on 24/9/2001.

9.     The defendant refused to move out of the suit land.  A  suit seeking her eviction was filed in 2004.  This was   Kitale HCCC No. 76 of 2004.  This case was however     dismissed on a technicality.  It is after the dismissal of    this case that the present one was filed against the   defendant.  The plaintiffs contend that the defendant is a       trespasser on the suit property and that she has illegally   benefited from the same. This is why the plaintiffs are    seeking mesne profits of about 8,000,000/= from the defendant.

 DEFENDANT'S CASE

10.   The defendant stated that she is a daughter in-law of Appollos. Appollos owned a farm called Gutongorio       which was 1800 acres. The farm was adjacent to        Kaptien Farm.  In 1973 the owners of Kaptien Farm    approached Appollos to assist them repay a loan they   owed AFC.  The owners of Kaptien Farm agreed to sell to        Appollos 120 acres.  Appollos sent the defendant and her  husband to the 120 acres in 1973.   There was a farm  house which was occupied by Stanley Mosbei one of the members of Kaptien Farm.  Stanley moved out of the       farm house and the defendant and her husband took over.  The defendant and her husband cultivated the land and gave the proceeds to Appollos who used to pay the   AFC loan owed by the members of Kaptien Farm.

11.   Appollos later bought 12.5 acres making the total to be  132.5 acres.  The defendant's husband died in 1979. The defendant has been cultivating the suit land since  then to date.  She testified that the loan re-payment was  cleared in 1979.  She contends that Appollos bought the    suit land and that he never leased the 120 acres as alleged by the plaintiffs.  She stated that she was never   asked to move out of the suit land on completion of the  lease which the plaintiffs allege was in existence.

12.   In 1996, she was cultivating the suit land using Appollos  tractors when some members of Kaptien Farm came and  stopped the workers.  Her father in-law (Appollos) went   to court and filed a suit. An injunction was granted which     enabled her carry on farming. She contends that she cannot be evicted from the suit land as it belongs to her    and that she cannot pay mesne profits on a property    which is hers.  She prays that the plaintiffs suit be       dismissed with costs to her.

 ANALYSIS OF EVIDENCE AND ISSUES FOR DETERMINATION

13.   I have gone through the evidence adduced by the   plaintiffs and the defendant in this case. I have also gone through the pleadings as well as submissions by the  plaintiffs and the defendant.  The plaintiffs filed their  issues on 29/10/2013.  The defendant filed hers on  25/11/2013.  Issues for determination flow from  pleadings and evidence of the parties.

14.   One of the issues for determination is whether the first  and second plaintiffs are the registered owners of L.R. No. 1800/3 and if so whether they are holding the same       in trust for the other members.  The defendant had contended in her defence that the two plaintiffs are not   the registered owners of L.R. No. 1800/3.  She contended  that the property was surrendered back to the  Government of Kenya and that as such, they are not the    owners of the property. The plaintiffs produced a copy of  certificate of title [Exhibit 1] which shows that the  property was transferred to the first and second plaintiff   on 14/9/1964. The entries on the register show that the  certificate of title  was surrendered to the Government in  exchange of a subdivision scheme.  It is therefore not     true that the property was surrendered to the  Government as alleged by the defendant in her defence.  PW4 David Kibitok Kemboi while under cross-examination confirmed that he and the first plaintiff were   registered as owners of the property on behalf of 16   other members. There is no one who is contesting that     the property was bought by 18 members who are  inclusive of the two registered members. Though the defendant had contended that the property was not registered in the name of the first and second plaintiffs,   she concedes in her submissions that indeed the    property was registered in the names of the first and  second plaintiffs and that the certificate of title was only surrendered to the Government in exchange for a sub-division scheme.  I therefore find that the property is   registered in the name of the first and second plaintiffs who are holding it in trust for the other 16 members.

15.   Another issue for determination is whether part of L.R.        No. 1800/3 was leased to Appollos or whether any part of   the same was sold to him in exchange for repayment of       the loan owed to AFC by the members of Kaptien Farm.    There is evidence from the plaintiffs that they took a loan    from AFC to purchase the property. When it became difficult to repay the loan, they approached Appollos who agreed to have some 120 acres on lease basis in return    for him helping the members to repay the loan. There is      no contention that Appollos  repaid the loan.  This is       confirmed by the fact that AFC who had the title as      security for the loan called the registered owners who    went and picked it.  Appollos later filed a case seeking to   be declared as owner of 132.5 acres out of the property.  Some of the documents he produced included a         document produced as Exhibit 1 in Kitale HCCC No. 35 of   1997. This same document was produced by the defendant as Defence Exhibit 6 in this case.

16.   The court in Kitale High Court Civil Case No. 35 of 1997   found that Exhibit 1 was not a sale agreement. It was not         signed by any of the persons listed on it or even by Appollos himself.  The evidence of Appollos in that case   was clear that he had leased 120 acres from the  members of Kaptien Farm. He only changed this position during cross-examination when he tried to state that he bought the 132.5 acres.  He repeatedly maintained that    he bought the 132.5 acres which he was claiming and  that he bought other acres from individual members    which acres were not subject of the suit before court.  There were two different consents which were given   relating to the alleged land which Appollos claimed that  he had bought from the members of Kaptien Farm. These  consents were found to have been irregularly obtained.  The area list which had been presented was found not to   be authentic and incapable of being acted upon.  The    court having considered all these documents arrived at a  conclusion that Appollos did not buy the 132.5 acres as   he claimed.

17.   There was an argument by the defendant that Appollos   bought the suit land and that is why he sent his son   Chege Mwangi and his wife to reside at the farm house.  It was argued that Appollos had a plot adjacent to the    suit property and that he would not have sent his son to    reside in the farm house if it was a lease.  I do not think  that this argument has any basis.  There is evidence from   the plaintiffs that Appollos requested that his son moves  into the farm house for easy of management of the  leased portion.  The movement of Chege Mwangi into the   farm house did not mean that Appollos had bought the  suit land.  There is a letter which the defendant produced    as Defence Exhibit 2.  This letter was addressed to her    husband and not Appollos. If there were attempts by  some unregistered members of Kaptien Farm to enter into a separate agreement with Chege Mwangi, then that  is a different issue all together. The agreement was with  Appollos and not his son.  I therefore find that what was entered between the members of Kaptien Farm and   Appollos was a lease in exchange of payment of loan    owed to AFC by the members of Kaptien Farm.

18.   Related to the above issue is the issue of estoppel and  res judicata as regards to Kitale HCCC No. 35 OF 1997.    The defendant is contending that Appollos bought the   suit land i.e. 132.5 acres.  This is the same argument which was raised by Appollos.  The exhibits produced by  the defendant were also produced by Appollos in Kitale  Civil Case No. 35 of 1997.  The court made a  determination on the same documents.  The defendant  was a witness in Kitale HCCC No. 35 of 1997.  She was supporting Appollos case that Appollos bought the suit land.  She even stated that it was upon Appollos to     decide on what land he was to give her out of the suit        land. I find that in the wider sense of the doctrine of res   judicata, her arguments in this case are res judicata.  The issues were raised by Appollos in Kitale HCCC No. 35 of  1997.  The same were decided on by a court of   competent jurisdiction. It does not matter that the  defendant was not a party to the suit.  The subject  matter of the suit is the same as was in the previous suit. The arguments the defendant is raising could have been   raised in the former suit.  If Appollos argument was that he was buying the suit land for his son Chege Mwangi the   husband of the defendant, I see no reason why she was   not made a party to the former suit.  What the defendant  is raising in this present suit could have been made a ground or grounds in support of the former suit.

19.   The defendants position in the former suit had been that     the suit land belonged to Appollos and that it was upon Apollos to decide on what portion to give to her out of      the suit land.  Appollos made a will in 1999 and   bequeathed 30 acres to the defendant from the suit land.  Appollos did this apparently in anticipation that he was  going to win the case which was pending in court.  There    is no way Appollos could give out in a will that which was  not available to him. The defendant is therefore estoppel    from changing positions and claiming that she is entitled     to the suit land in her own right.

20. In Nairobi Court of Appeal Civil Appeal No. 80 of 1988 between Pop - In (Kenya) Limited and 3 Others -vs-   Habib Bank A.G. Zurich, the plaintiffs who were appellants filed an appeal against a ruling of Justice Rauf whereby he ordered that the suit was barred by the doctrine of estoppel with the extended aspect of res judicata as a result of which he held that the whole suit had failed.   There had been two suits which had been filed earlier on. Mr. Shah Advocate for first plaintiff argued that the doctrine of res judicata could         not act as a bar to the institution of an action the   subject matter of appeal as the plaintiff was not a party to the two originating summons filed earlier on.  The Judges of Appeal in dismissing the appeal held that   they could not see why the first appellant could not    be joined in the two  earlier    suits. They dismissed the suit and affirmed the decision of the High Court which held that the first appellant had been barred by the doctrine of estoppel with the extended aspect of res  judicata. As in the appeal hereinabove, I find that the defendant is barred from raising the grounds in her defence by the doctrine of estoppel with the extended aspect of res judicata. 

21.  The defendant in her defence contended that she has acquired the suit land by way of adverse possession and therefore the plaintiffs suit is statute barred.  She had also averred in her defence that the property had been surrendered to the Government of Kenya and therefore it was not the property of the first and second plaintiffs. The issue which emerges for determination is whether the defendant has acquired the suit land by way of adverse possession.   To start with, a party  is bound by his or her pleadings.  In the case of Independent Electoral and Boundaries Commission and Another -vs- Stephen Mutinda Mule (Civil Appeal No.219 of 2013 2014 eKLR, the Judges of the Court of Appeal had this to  say regarding pleadings.  They quoted with approval the decision of Judge Christopher Mitchelle JSC in Nigeria Case of Adetoun Oladeji (NIG) Limited -vs- Nigeria Breweries PLS S.C.91/2002.

“............ It is now a very trite Principle of Law  that Parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of  the pleadings goes to no issue and must be   disregarded.”

The judges went on to state:-

“  As the authorities do accord with our own thinking, we hold them to be representative   of  the proper legal position that parties are   bound by their pleadings which in turn limits  the issues upon which a trial court may   pronounce.”

22. The defendant had averred that the property was Government Property.  She cannot be allowed to depart from her pleading without any amendment.  A party cannot seek adverse possession on a Government land.  In the case of Faraj Maharus -vs J. B. Martins Caless industries & 3 Others (Civil Appeal No.130   of 2003), the   Court of appeal sitting in Mombasa   held as follows:-

 “ Secondly that there can be no adverse    possession  on  Public or government Land  however long one may have been  squatting thereon without let or  hindrance   from the Government. Therefore the   appellant cannot benefit from the long period of his occupation of the disputed property.”

23. The defendant has been sued in her individual capacity   as a trespasser.  The estate of Appollos was not sued and  is not a party. The evidence on record is that it is   Appollos who put  her in possession of the suit land.   Even if she has been on the suit land since 1973 or    1974 as she claims,  she has been on the suit land as a  licencee    of Appollos who was himself on the land on   lease basis with permission of members of Kaptien Farm. Apollo remained the controlling person in as far as the  suit land  was concerned.  This is why he had to file a suit  in 1996     against some individuals from Kaptien Farm.   Appollos    died on 24.9.2001.  The defendant therefore remained a licencee of Appollos until his death.  If the   defendant has to raise a claim of adverse possession in     her own right, then that can begin from the time   Appollos    died on 24.9.2001. Time will then start running  in her favour  after 24.9.2001. The question which arises    then is  whether the   defendant has acquired the suit land by way of adverse possession.   The law   requires    that she ought to have  been in continuous, peaceful and  uninterrupted possession for a period of 12 years.  In the  year 2004, the plaintiffs filed a suit against her seeking  her eviction. This suit was however dismissed on a technicality.  About five years later the plaintiffs brought    the present suit against her.  Even if we were to assume that the   2004 case was not there, the defendant would    have been on the suit land for a period of about 8 years    which is short of the statutory period required for one to      acquire land by way of adverse possession.

24.   The defendant is not the administratrix of the estate of  Appollos and she cannot therefore purport to claim  adverse    possession on behalf of his estate.  She cannot  equally    purport to claim on behalf of the estate of her  late husband   who died in 1979.  I have already found      that she was a licencee of Appollos and neither she or  the   estate of her husband can claim the suit land on     grounds of adverse possession. Besides this, the  law is clear that one cannot  claim adverse possession in a  defence.  That claim has to be    brought by way of Originating Summons.  It cannot be   brought in a   counter-claim.  This was the holding in Nakuru   Court of Appeal Civil appeal No. 231 of 1999 between   Njuguna Ndatho -vs- Masai Itumo & 2 Others where the High Court allowed a claim of adverse    possession founded on a counter-claim.  On appeal the  judgment of the High Court granting the defendant's   claim in the counter-claim was set     aside. 

25.  The defendant urged the court to find that the Plaintiff's      were holding the suit land in trust for the estate of  Appollos.  I have already said herein-above that the     estate of Appollos  is not a party to this suit.  The    defendant is sued in her  personal capacity as a   trespasser to the suit land.  She   cannot agitate a claim   on behalf of the estate of Appollos which is not a party.   Even if the estate of Appollos was to     be a party, there is no basis upon which the estate of Appollos could claim    that the suit land is held in trust for the estate. Appollos    himself during his lifetime filed a suit seeking to be      declared owner of 132.5 acres.  This claim was dismissed   by the court.  The claim was not dismissed because    Appollos had not included the first and second    plaintiffs    in the suit.  It was dismissed because   the court    found   that Appollos had not bought the land from the    members of Kaptien Farm as claimed.  The whole process    which was put in place in a bid to transfer land to Apollos    was faulted. A consent purporting to transfer the   property to one of the witnesses who testified in favour   of Appollos in the 1997 case was found to have been  unprocedurally given. It was addressed to persons   who were not registered owners.  The registered owners  were not involved.   This consent was too produced in the present case as a defence exhibit 7.

26. The other issue for determination is whether the defendant is a trespasser on the suit land.  There is  evidence on record that the defendant was on the suit   land at the invitation of her father in-law Appollos. Appollos had been allowed on the land on lease basis in return for him assisting the   members of Kaptien Farm to     repay the loan which members owed to the AFC.The initial period of stay was 3 years but this period extended because Appollos did not repay the loan   within the 3 years given. There is a letter   from AFC plaintiff exhibit 2 which confirms that the loan was  cleared in 1978.  The clearance of the loan was not brought     to the attention of members of Kaptien Farm until 1994 when  The AFC wrote to the registered  owners asking them to  collect their title.  Though the  plaintiffs did not seek to remove Appollos from the    suit   land in or around 1994, the  members were impatient   with his stay.  Two years after they received the title   deed for their land; members of Kaptien Farm tried to  stop Appollos from utilizing the suit land.  This  prompted Appollos to file a suit in 1996.  This is the suit   which was dismissed in 2002.  Appollos was trying to claim  that he had purchased the land.  Appollos lost the case.      There was no appeal preferred against the court's decision. The import of this judgement is that it  rendered all those who were on the suit land trespassers    because they had no ground for remaining on the suit land.  One of the people who are still on the suit land is   the defendant and her children. They have no lawful   basis for remaining on the suit land. I have  demonstrated herein-above that the defendant has not acquired any known rights over the suit land.  Appollos  was clear in his testimony that the 132.5 acres he was   litigating on was not part of the portions he bought from  individual members of Kaptien Farm.  He was asking the  court to declare that he bought the 120 acres which the plaintiff's were contending that they leased to him and that he bought a further 12.5 acres making it 132.5 acres.  Appollos could not adduce any evidence ofpurchase of the 12.5 acres or the 120 acres.  The court  therefore found that he had not proved that he bought the 132.5 acres which he was laying claim to.  The 132.5   acres which Appollos wanted to wrest  from plaintiffs are the same acres being occupied by the defendant. Having found that the defendant has no basis of staying     on the suit land, I find that she and anyone claiming to be on the suit land through her is a trespasser.

27. The other issue for determination is whether the plaintiffs are   entitled to mesne profits.   Mesne Profits are  awarded   to a successful litigant against a defendant who  has been unjustifiably benefiting from a property which is   found to    belong to the claimant. I have found that the defendant became a trespasser to the suit land as from the date  the    court decreed that Appollos who had   allowed her to be on the suit land had no claim to the   132.5 acres.   The  defendant has been on the suit land since then.  She has been growing maize on about 122  acres of the suit land which is all arable as per theevidence of PW5 Bonface Kapiri Wafula Muse a Professional valuer who valued  the land.  He found out  that about 10 acres were reserved for the homestead. The valuer valued the property in 2013.  He produced his  report as exhibit 3. This witness testified that he has  been around the area since the year 2000 and he  therefore knows about the   rental income if one were to lease out.  An acre would fetch between 3000/= to  8000/= in 2014.   He therefore   found that the profits accrued from the suit land between  2003 and 2013 will be 8,000, 000/=.  The Mesne Profits are   being considered in the year 2015.  This is a period of about 2  years from the date of valuation. During cross  examination, the   defendant confirmed that she had  leased out 5 acres to someone at kshs.8,000/= per acre. This confirms the       findings of the valuer when he put the  income     per acre at 8,000/= as at 2013.  The defendant   has been utilizing the suit land since the 1970s.  The plaintiffs are   only claiming mesne profits from 2003 to 2013.  I do not find any, ground to fault the valuer's  assessment.  He is an  expert in the field.  I therefore award the plaintiffs mesne  profits of Kshs.8,000,000/=  (Eight Million).

 DETERMINATION

28. The evidence as analyzed above has led me to make a  finding   that the plaintiffs have proved their case  against the   defendant.  I accordingly grant the     following reliefs:-

(a)    A declaration that the plaintiffs are the rightful owners of 132.5 acres which are part of LR.No.1800/3   commonly known as Kaptien Farm   and that the defendant has no claim to the said   132.5 acres.     

(b)    A declaration that the defendant is a trespasser in the 132.5 acres and that she should be  evicted      from the  same.

(c)    A permanent injunction is issued against the   defendant, her servants or agents or any one claiming under her from in any manner  interfering with the 132.5 acres.  

(d)      The plaintiffs are hereby awarded Mesne Profits of kshs.8,000,000/= (eight million).

(e)    The defendant shall pay costs of the suit.  Interest on mesne profits to be calculated at  court rates from the date of this judgment.

(f)    The eviction order granted in (b) shall take effect upon expiry of three months from the  date of this judgment. 

Dated, signed and delivered at Kitale on this 23rd day of    September 2015.

E. OBAGA

JUDGE

In the presence of Mr. Kiarie for defendant and Mr.   Wafula for Mr. Bosek for Plaintiffs.

       Court Assistant – Winnie.

       E. OBAGA

       JUDGE

       23/9/2015