Paul Kamura Kirunge v John Peter Nyaga [2021] KEELC 1886 (KLR)

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC APPEAL NO. 41 OF 2018

PAUL  KAMURA KIRUNGE ……………………………………….. APPELLANT

VERSUS

JOHN PETER NYAGA …………………………………………… RESPONDENT

(Being an Appeal from the Judgment and/ or Ruling of the Hon  Olwande P.M  at Limuru Law Courts delivered  on 17^th December 2018,  in  the Senior Principal  Magistrate’s Court  Civil Suit No. 108 of  2011 at LIMURU)

BETWEEN

JOHN PETER NYAGA…………………………………………………PLAINTIFF

VERSUS

PAUL KAMURA KARINGE………..………….……….…………...DEFENDANT

JUDGMENT

The Appellant herein Paul Kamura Kirunge, was the Defendant while the Respondent John Peter Nyaga  was the Plaintiff, in Limuru CMCC 108 of 2011.

By a Plaint dated 12^th May 2011, the Plaintiff filed the above suit against the Defendant and sought for orders that;

a) An eviction order from the  subject land.

b)  The Defendant to hand over to the Plaintiff  the original  Title Deed  of land parcel  Escarpment Kinari Block  1/1920.

c) Damages for illegal occupation of the Plaintiff parcel of land and building for the last ten years.

d) Costs of this suit and any other relief this Honourable  Court  may deem for to grant.

 In his statement of claim, the Plaintiff (Respondent) averred that he is the registered owner of the suit property which he purchased for value from Mwaura Hindu. That the purpose of purchase of the suit property was so that he could re locate his late father to the suit property.  That the Defendant (Appellant) took advantage of the presence of their late father on the suit property and in due course started trespassing without notifying the Plaintiff/Respondent.

Further that the Defendant (Appellant) was in forceful possession of the original title deed of the Plaintiff’s (Respondent’s)  suit land and has initiated subdivision  without his consent. That the Defendant’s (Appellant’s) acts are illegal  and unlawful and infringe on the Plaintiff’s (Respondent’s)  proprietary  rights  and rental income  generating thereto. That there is real and imminent danger  of the said land being wasted  and damaged.

 The suit was  contested and the  Defendant ( Appellant) filed a  statement of Defence dated  3^rd February 2014, and denied all the allegations made in the  Plaint.  He  averred that  he is  in possession of the original title deed of the suit property by virtue of being  the legitimate owner of the suit property.  That the suit property is family land  and he and the  Plaintiff (Respondent) are members of the  same family. That   the Plaintiff (Respondent) sought to disinherit them from the suit property.

 After close of pleadings, the matter proceeded by way of viva voce evidence wherein the  Plaintiff ( Respondent) called  2 witnesses and closed his case and the  Defendant called  3 witnesses and closed his case.

PLAINTIFF’S CASE

PW1  John Peter Nyaga adopted his witness statement dated  19^th May  2011. He further produced his list of documents dated 19^th May 2011, and a further list of documents dated  24^th August 2017,  as exhibits. That the suit property belongs to him as he bought the same from  one Mwaura Hindu in 1992. Further that his father had no  land and was living in the church compound. That his father found the vendor on his  behalf , negotiated and completed the transaction and had the land registered in the Plaintiff’s name.  That he then constructed  a house and settled his father on the said property  and his siblings and himself would occasionally visit his father.

That  his father  lived alone on the suit property  and sometime he noted that his brother, the Defendant (Appellant) started cultivating on a portion of land  on the suit land and it did not bother him as his father could not cultivate the whole land. That upon the death of his father, he informed his brother that he wanted to use the suit property which was his,  but the Defendant refused to leave. He produced a sale agreement  as Exhibit 1, letter dated 14^th May 1992 as Exhibit 2, transfer of land exhibit 3. LCB consent exhibit 4 and green card as exhibit 5. Caution exhibit 6.

That he filed a suit against the Defendant,  and the Court   heard the case in 2013, and  ordered the Defendant to vacate  the suit property  and to issue him with  title. He produced the  Decree as Exhibit 7. That he sought evictions orders and the Court  issued the said orders.   However, the Defendant came on board and the same was stayed.  That he knew  his father had a plot from Cooperative  Society, he sold the land and  divided the proceeds amongst  himself, his brother and the Plaintiff. That he has  a parcel of land  in Naivasha  measuring 15 acres,  which he bought himself  and he had sold a portion of it to  buy the suit property.. He produced documents to  prove he sold his land,  title deed as exhibit 8, payments of processing title  exhibit 9 and a sale agreement dated 7^th May 2019  exhibit 10.

That his father was a witness in the transaction which  he bought the suit property and he was in the mining industry. That he sold his land for Kshs. 150,000/= and he did not give his father nor his brother’s  anything. That his father did not sign the sale agreement in which he bought the suit land. That he wanted to subdivide the land  so that he could charge  a portion to sort out financial problems. That he  requested the Defendant  to find him a surveyor  and he gave him his title deed  and when he  asked him for it, the Defendant told him he did not have it. That the Defendant was given 2  properties that were registered in his mother’s name . That he was given the Nyakinyua plot . That there are two plots in Nyakinyua  one was given to his sister while another was registered in his name and that of the Defendant . That when his  father died, no plot  was registered in his name. That the Defendant does not live on the suit property.

PW2  Mwaura Hindu,  testified that the Plaintiff bought  1¹/₂  acres  of land from him  and it was carved from the land he lives in. That two people witnessed the transaction. That the Plaintiff paid him the money at  a bank in Naivasha. That the Plaintiff’s father stayed on the suit property alone and upon his demise, no one lives on the suit property. That  their  agreement was in one document  and  he could not recall the  exact sale consideration but it was over Kshs. 90,000/=.

DEFENCE CASE

DW1  Paul Kamura Kirunge  adopted his witness statement dated  30^th June  2017, as his evidence in Court. He produced a letter dated 12^th April 2011, as exhibit 1. He produced the share certificates as Exhibit 2, Copies of receipt for payment as Exhibit 3 a & b. That the parcel where the Plaintiff stays used to belong to their father  and their father was buried in the said land. That when their father was still alive, he said they should subdivide the land   in the presence of their 5 sisters . That  while processing the subdivision, they wanted to appear before the Land Control Board  and they went  to the Board with Mwaura, who sold to them the land. That they sold their land and bought the suit land.  Further that  they went to the Land Control Board and they agreed with his brother that they would first process the title in his name and then subdivide later. That when the transfer was signed, his father represented his interests. That the surveyor gave him the title deed to the parcel  of land  after the death of his father. That his father had 2 wives and he was apprehensive that  there would be issues, hence he  decided to subdivide  his property and gave them their respective parcels and his request was that the land be subdivided as per his father’s wishes.

That his son lives on the suit land and he has built him a house there.  That  his brother sold his father’s land  situated in Naivasha  and used the money to pay Mwaura, who was the owner of the suit property in order to  acquire the suit property . That he was first paid by cash and the balance was paid by cheque. That their father then moved to the suit land and stayed with his sister’s son. That he was not staying on the suit land, but when his father died, he  only took his son and cows upon his demise. That the agreement  to purchase the suit land was done in his father’s  presence and in the name of the Plaintiff because he is the one who had the  money . That he was holding the title deed because the land belonged to them.. That his father had other assets, that they have not distributed. That in Naivasha, they  had 15 acres,  and they sold 5 acres and the  other 10 are still registered in the Plaintiff’s name.

DW2  Francis  Muiru  Kagunya,   adopted his witness statement as his evidence in Chief . That he is the one who drafted the sale agreement dated 14^th May 1992, and it bears his signature and that of the witnesses. That the sale agreement stated that Mwaura Hindu, was selling to John Peter Nyaga,  the buyer. That he was the witness and Robert Wainaina  and Mwaura’s wife were also present

DW 3 Lucy Wanjiru Maina,  adopted her witness statement dated  30^th July 2017,  and testified that her father sold the land in Naivasha then bought the land in Kinare,  though she was not a witness but her father told her.

 Thereafter, the  parties filed written submissions and the trial Court delivered its Judgment dated  11^th December 2018, and  entered Judgment in favour of the  Plaintiff as against the  Defendant ( Appellant)  with costs.

Being aggrieved by the said decision, the Appellant filed the instant Memorandum of Appeal dated  18^th December 2018, and prayed that;

a) That the appeal be allowed.

b) That the Judgment passed on the 17^th December 2018, be quashed and or set aside.

c) That this Honourable Court do make its own findings  on the law and the facts.

d) That in the alternative the case be referred for hearing before a different magistrate.

e) That the Respondent pays  the costs of the appeal  and of the lower Court case.

f) Any other  relief deemed appropriate in the circumstances.

 The grounds upon which the Appeal is grounded are;

1.  The trial Magistrate erred in Law  and  in fact in passing a Judgment  against the Appellant

2. The trial  Magistrate misdirected  herself in both  law and in fact  in failing to take into account  an authority from  the Supreme Court of Kenya  on the issue of customary trusts.

3. The trial Magistrate erred in law and in fact in failing  to find  that the Respondent  had not proved  his case  to the required standard  of proof.

4. The trial Magistrate  erred in law and in fact  in finding  that the Respondent  was entitled  to an order to evict  the Appellant against  the preponderance  of the evidence.

5. The trial  Magistrate  erred in Law  and in fact in not taking  into account  or consideration  the submissions of the Appellant  and evidence adduced.

6. The trial Magistrate  erred in Law and in  fact in taking into account  the Respondent’s documents  which were impugned and not proved.

7. The  Learned  Magistrate erred in Law and in fact  in applying wrong principles in determining the issues of right to land, inheritance and gifts inter vivos.

8.   The Learned Magistrate erred in law and in fact  in ignoring the clear provisions of the Land  Act and Land Registration  Act.

9. The Learned Magistrate  erred in law and in fact in totally ignoring the law put in by the Appellant  thereby arriving  at a wrong decision  on the issues  presented before  her by the Respondent.

The Appeal as canvassed by way of written submissions and the  Appellant through the Law Firm of  James T. Makori  & Company Advocates,  submitted that  the suit property was at all times family land and the Appellant was farming on the said property  and still farming the same.  That the Respondent admitted that  the deceased father  was buried on the suit property  and their father’s land was sold in Naivasha, to buy the suit property . The Appellant relied on the  case of Isaack M’innaga  Kiebia ….Vs…. Isaaya  Theuri  M’intari & Another (2018),  and urged the Court to find that the  registration of the Respondent  was in trust for the family  of which the Appellant is a beneficiary.

The Respondent filed his written submissions through the Law Firm of Angaya, Nasimiyu  & Associates Advocates, and submitted that the Appellant has   not addressed and proven the various issues he raised in the Memorandum of Appeal. That the Appellant’s  entire Appeal and  submissions all premised  on a non existent admission. That the fact that the  Respondent allowed his father to live and be buried on the suit land does not make the same  family land.  It was further submitted that  the  Appellant is trying to mislead the  Court that the  suit property was held in trust  That  the Appeal  raises nothing new and  the   trial Court had not  considered and capitalizes on falsehood that are not in any record. The Court was therefore urged to dismiss the Appeal.

This being a first appeal, it is the duty of the first appellate court to re-evaluate the evidence led before the trial court both on points of law and facts and come up with its own findings and conclusions. See  the  case of Kamau …Vs…Mungai [2006] 1 KLR 15, where the Court  held that;

“Being a first appeal, it is the duty of the court to re-evaluate the evidence, assess it and reach its own conclusions, remembering that it had neither seen nor heard witnesses hence making due allowance for that.”

The Court has carefully read and considered the written submissions,  the  Record of Appeal,  the  grounds thereof  and the Judgment by the trial Court and finds that the issue for determination is whether the Appeal is merited.

In determining  whether or not the instants Appeal is merited, it is the Court’s considered view that it must  first determine whether the Respondent held  the suit land for the benefit of the family and therefore  held it in trust.

In the case of Justus Maina Muruku …Vs.. Jane Waithira Mwangi [2018] eKLR the Court held that;-

“In the case of Mbui vs Mukangu vs Gerald Mutwiri Mbui C.A No. 281 of 2000, the Court of Appeal stated that customary trust is a concept of intergenerational equity where the land is held by one generation for the benefit of succeeding generations. The Court also held that possession and occupation are key elements in determining the existence of a customary trust.”

The  Appellant claims to be  entitled to the suit property by way of Customary Trust. It is not in doubt that the Respondent is the registered owner of the suit property  and his registration is absolute and  indefeasible but the same is subject to certain encumbrances  and a customary trust being one of them. The  basis upon which the  Appellant lays claim to the suit property, is that the Respondent used the proceeds from the sale of a property that belonged to their father  in Naivasha and the same was used to purchase the suit property where his father lived and was buried and therefore the same belonged to their father.

The  Respondent produced in evidence  a sale agreement between him and  PW2, in which it shows that he was the one who purchased the suit property. However, he further testified that the same was purchased with proceeds of sale from his other property, and denied that the suit property was purchased by his father with proceeds for sale from his father’s property and or that they were supposed to have the suit property  registered in the family name.

It is trite that he who alleges must prove.  The Appellant alleged that the Respondent bought the suit property from proceeds of the sale of a property that belonged to their father . There  is no documentary  evidence that was produced before Court to show that the same is the correct position. The Court must therefore determine which of the two parties has a more believable recollections of events.

Thr Respondent’s evidence that his father sold   his property that  was situated in Naivasha and then shared the proceeds between the three of them has not been  controverted. Further, that the Appellant has failed to satisfy the Court that there are other  properties that belonged to their father that are still registered in the name of the Respondent.  Further, the Respondent’s father was a witness in the sale agreement and if he intended to have the suit property being held in trust, there would be no reason as to why the same would  not have been indicated nor would the Appellant  have been included as an owner of the suit property. In the circumstances, the Court finds and holds that the Appellant failed to prove that the suit property was bought  

 With their father’s money and for family use.

Having failed to prove that the Respondent bought the suit property with their father’s money, it would only mean that the Respondent bought the suit property with his own proceeds and therefore, he is the absolute and indefeasible owner, of the suit property.’ Being the absolute and indefeasible owner, of the suit property, the Respondent is therefore entitled to all the rights and privileges appertaining to the said property including the exclusive peaceful and quiet possession of the said property. The said rights could only be achieved by eviction of the Appellant from the suit property and return of the original title deed. Therefore, the Court finds and holds that the Appellant has failed to prove there was any Customary trust and that the Respondent was holding the Land in trust for the family, the Appellant herein included.

Having now carefully re-evaluated and re-assessed the available evidence before the trial Court and the Memorandum of Appeal, together with the Written Submissions, the Court finds that the trial Magistrate arrived at a proper determination and this Court finds no reason to upset the said determination.

The upshot of the foregoing is that the Appellant’s Appeal is found not merited and consequently the said Appeal is disallowed and dismissed entirely and the Judgment and Decree of the trial court is upheld.  The Respondents will have the costs of this Appeal.

It is so ordered.                                                   

Dated, signed and Delivered at Thika this 24^th day of September, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy