Jumbe v Rukwaro (Environment and Land Appeal E002 of 2020) [2023] KEELC 18589 (KLR) (6 July 2023) (Judgment)
Neutral citation:
[2023] KEELC 18589 (KLR)
Republic of Kenya
Environment and Land Appeal E002 of 2020
JO Olola, J
July 6, 2023
Between
Ijilal Yusuf Jumbe
Appellant
and
Joseph Gitonga Rukwaro
Respondent
Judgment
1.This is an appeal arising from the judgment of the honourable Wendy Kagendo, Chief Magistrate delivered on August 28, 2022 in Nyeri MCL & E Case No 62 of 2019.
2.By a plaint dated July 3, 2019, Joseph Gitonga Rukwaro (the respondent herein) had sought judgment against Ijilal Yusuf Jumbe (the appellant) for an order of permanent injunction restraining the appellant from interfering with and or trespassing into or occupying the parcel of land known as LR No Aguthi/Gatitu/11. In addition, the respondent had sought mesne profits as well as orders of vacant possession requiring the appellant to remove the temporary structures said to have been erected on the suit property. In the alternative, the respondent urged the court to allow him to conduct the eviction through a licensed auctioneer.
3.It was the respondent’s case that he was the absolute registered owner of the suit property and that the appellant had proceeded without his consent to erect temporary structures thereon which structures had hindered his enjoyment and use of the land.
4.In his statement of defence and counter-claim dated December 18, 2019, the appellant denied that the respondent was the absolute registered owner of the suit property. On the contrary, the appellant asserted that the respondent’s title was questionable as it was illegally obtained during the pendency of two cases in court. The appellant further denied having trespassed onto the land asserting that he had lived on the land since his childhood.
5.By way of the counter-claim, the appellant sought for the following:
6.The dispute went for hearing before the Honourable Wendy Kagendo, Chief Magistrate. Upon hearing the parties and in a judgment rendered on August 28, 2020, the learned trial magistrate found and determined that the respondent had proved his case and was therefore entitled to the prayers sought in the plaint. The appellant’s counter-claim was accordingly dismissed with an order that the appellant grants vacant possession of the suit premises within 60 days of the judgment.
7.Aggrieved by the said determination, the appellant lodged the memorandum of appeal herein dated September 2, 2020 urging this court to set aside and/or vary the said judgment on the grounds listed as follows:
8.The appeal was disposed of by way of written submissions. I have accordingly carefully perused and considered the record of appeal as well as the written submissions and authorities placed before the court by the learned advocates representing the parties herein. As was stated in Selle & another v Associated Motor Boat Company Limited & others (1968) EA 123, the duty of a first appellate court such as this one is to re-evaluate the evidence before the trial court as well as the judgment of that court and to arrive at its own independent judgment on whether or not to allow the appeal.
9.A first appellate court is thus empowered to subject the whole of the evidence adduced before the trial court to a fresh and exhaustive scrutiny and thereafter make conclusions about it bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand
10.In his plaint dated July 3, 2019, the respondent had sought orders of a permanent injunction to restrain the appellant, his servants and/or agents from interfering with and/or trespassing upon the parcel of land known as Aguthi/Gatitu/11. He further sought orders of vacant possession requiring the appellant to remove illegal temporary structures said to have been erected on the suit property and for the Officer Commanding Station (OCS) Nyeri Central Police Station to enforce the same.
11.Those prayers were premised on the grounds that the respondent was the registered proprietor of the suit property and that the appellant had trespassed on the same without his consent and had proceeded to erect temporary structures thereon without the respondent’s consent.
12.In his defence and counter-claim, the appellant questioned the circumstances under which the respondent came to be registered as the proprietor of the suit property and asserted that the registration was procured during the pendency of the two active cases involving the appellant and one Ratib Rajab Ramadhan from whom the respondent was said to have purchased the suit property.
13.In support of his case, the respondent told the court he had purchased the land at a consideration of Kshs 11,000,000/- and that the appellant had trespassed thereon and erected temporary structures therein without his consent. In further support of that position, he produced a sale agreement dated October 31, 2018 between himself and one Ratib Rajab Ramadhan. He also produced a title deed indicating the suit property was registered in his name on May 15, 2019.
14.On his part, the appellant accused the plaintiff of deliberately failing to disclose that there were subsisting suits at the Nyeri Law Courts relating to the suit property between his family and the family of Ratib Rajab Ramadhan who sold the land to the respondent. In support of that position, the appellant produced pleadings in relation to Nyeri Chief Magistrates Court case No MCL & E No 274 of 2018 between Rishad Rajab Ramadhan & 3 others v Ijilal Yusuf. The appellant further produced pleadings in Nyeri ELC Case No 289 of 2015 between Aisha Ramadhan & 3 others v Fatuma Ramadhan Muringwa.
15.Having considered the issues and the evidence, the learned trial magistrate found and determined as follows from page 3 of her judgment on the issue of ownership:
16.On the issue of the said pending litigation over the suit properties, the learned trial magistrate found and determined as follows:
17.From the material placed before me, it was apparent that the respondent’s registration as the proprietor of the suit property on May 15, 2019 stemmed from the sale agreement between himself and one Ratib Rajab Ramadhan dated October 31, 2018. A perusal of the said agreement as produced in evidence before the court reveals that the named vendor was selling the same on the authority of his siblings named therein as Rishad Rajab Ramadhan, Rabbeigh Rajab Ramadhan, Razak Rajab Ramadhan and Ratib Rajab Ramadhan.
18.It was also apparent from the material placed before the court that the said vendors of the suit property were cousins to the appellant all of them being the grandchildren of one Mariam Binti Makuti who was the original proprietor of the suit property.
19.From the pleadings exhibited before the trial court, it was evident that sometime in the year 2015, the vendors together with their mother - one Aisha Ramadhan had sued the appellant’s mother – Fatuma Ramadhan Muringwa in Nyeri ELC No 289 of 2015 accusing her of illegally occupying the suit property and just like in their matter herein seeking her eviction therefrom.
20.In her statement of defence dated and filed on February 18, 2018, the appellant’s mother denied the accusations and asserted that she has been in full and uninterrupted occupation of the subject parcel of land since the year 1962. That suit was later transferred to the Chief Magistrate’s Court as Nyeri MCL & E Case No 66 of 2018 where according to the appellant it remains pending for hearing and determination.
21.It was further evident that by yet another suit filed in the Chief Magistrates Court at Nyeri on December 7, 2018, the same vendors did sue the appellant herein accusing him of trespass onto the suit property and seeking to have him forcibly evicted therefrom in the event he does not yield vacant possession. In their plaint dated December 6, 2018, as filed in the said Nyeri Chief Magistrates Court being MCL &E No 274 of 2018, the vendors who claim to be the registered proprietors of the suit property do not state the date when the appellant illegally trespassed on the suit land.
22.Arising from the foregoing, it was again evident to me that as at the time the vendors executed the sale agreement with the respondent, on October 31, 2018 both the vendors and the respondent were aware of the fact that the appellant and other members of his family were in possession and occupation of the portions of the suit property of which the appellant is now accused of trespassing upon. That informs the failure by the respondent to point out in his pleadings and evidence exactly when the appellant trespassed upon the land.
23.In her witness statement dated November 30, 2015 as filed in the said Nyeri ELC 289 of 2015, the vendor’s mother acknowledges the presence of the appellant’s family on the land for many years and states as follows at paragraphs 2 and 3 thereof:
24.That being the case, I was unable to see how the respondent could succeed in a claim of trespass when he bought the property with full knowledge of the appellant’s occupation thereof.
25.A perusal of the ruling of the Honourable Justice Sergon dated September 30, 2009 as delivered in Nyeri HCCC No 18 of 2004 indeed reveals that the parties herein have had a long standing dispute over the suit property for a long period of time. In the said case, the appellant’s mother had sued the vendor’s mother seeking a declaration that the vendor’s mother held title for the suit property in trust for the appellant’s mother who was entitled to a half a portion thereof.
26.In the ruling delivered on September 30, 2009 aforesaid, the learned judge did find that the appellant’s mother had been on the land for long and that given the circumstances in which the title came to be registered in the name of the vendor’s mother, a resulting trust should be presumed with the result that the appellant’s mother was declared to be entitled to a half a share of the suit property.
27.Following an application by one of the vendors – Ratib Rajab Ramadhan, the ruling delivered by Hon Justice Sergon was set aside on February 4, 2015 by the Honourable Justice A. Ombwayo on account that the applicant was a necessary party to the initial suit and that he had been condemned unheard.
28.Contrary to what the learned trial magistrate states in her judgment, that setting side cannot be in my view construed to mean that the question of trust was determined between the parties. It can only mean that the suit remains alive pending the hearing of all the parties on the issues that had been raised by the parties in their pleadings.
29.That being the case, one cannot but agree with the appellant that as at the time the suit property was purportedly sold to the respondent the same was the subject of a number of litigations before the courts. As it were, the law does not allow or encourage litigants to give rights which are still under dispute to others who are not litigants and in the process prejudice fellow litigants. That injunction is granted under the doctrine of lis pendens.
30.Explaining the said doctrine in Ruth Kinyua v Patrick Thuita Gachure & another [2015] eKLR, the Court of Appeal observed as follow:In the case of Mawji v US International University & another [1976] KLR 185, Madan J. A stated thus:In the same case it was observed inter alia that:
31.Arising from the foregoing, it was self evident that the vendors had no authority to alienate the suit property in the manner they purported to have done. The purchase made of the property by the respondent pendente lite was void and no consequence.
32.It follows that I am persuaded that the learned trial magistrate made an error both in fact and in law in coming to the conclusion that the respondent had proved his case and was entitled to vacant possession of the land.
33.The result is that this appeal succeeds and the judgment dated and delivered on August 28, 2020 is hereby set aside with an order that the respondent/plaintiff’s suit is dismissed with costs to the appellant/defendant.
34.The costs of this appeal shall also be met by the respondent.
JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 6TH DAY OF JULY, 2023.In the presence of:Ms Wanjala for the AppellantMr. Wabandi Gacheru for the RespondentCourt assistant - Kendi............................J. O. OlolaJUDGE