Njau v Ngong Butchers Cooperative Society Ltd (Environment and Land Appeal E026 of 2021) [2023] KEELC 22449 (KLR) (20 December 2023) (Judgment)
Neutral citation:
[2023] KEELC 22449 (KLR)
Republic of Kenya
Environment and Land Appeal E026 of 2021
LC Komingoi, J
December 20, 2023
Between
Esther Wambui Njau
Appellant
and
Ngong Butchers Cooperative Society Ltd
Respondent
(Being an Appeal from the judgement of the Hon. Senior Principal Magistrate Hon. P. Achieng in Ngong ELC No. 21 of 2020 delivered on 19th August 2021)
Judgment
1.In her Judgement delivered on 19th August 2021 Hon. P. Achieng (SPM) held;
2.The appellant aggrieved by the said Judgement delivered on 19th August 2021 in Ngong ELC No. 21 of 2020 filed a Memorandum of Appeal dated 7th September 2021. The Appeal seeks the setting aside of the judgement and the Appellant’s prayers allowed on grounds that:
3.The Appeal was canvassed by way of written submissions.
The Appellant’s submissions
4.In the submissions dated 21st August 2023, counsel submitted that the suit at the lower court which was dismissed on grounds that it was time barred was res judicata as stipulated under Section 7 of the Civil Procedure Act because the same issue had been determined by Justice C. Ochieng in the ruling dated 18th September 2019. Counsel submitted that the said decision was binding because it had neither been appealed against nor set aside and the lower court had no jurisdiction making a determination on it as was held in Kennedy Mokua Ongiri vs John Nyasende Mosioma & Florence Nyamoita Nyasende, “… A decision of the court, unless set aside or quashed in a manner provided for by the law, must be accepted as incontrovertibly correct…”
5.Counsel also submitted that the Appellant had proved her case on a balance of probability that she had registrable proprietary interests over the suit property having purchased it in 1997 and had been in possession all through and the Respondent had unjustifiably refused to transfer it to the Appellant. Counsel submitted that the Respondent created a constructive trust and had been holding the land in trust for the Appellant citing Macharia Mwangi Maina & 87 others vs Davidson Mwangi Kagiri (2014) eKLR. As such court should grant the prayers sought by the Appellant at the lower court.
The Respondent’s submissions
6.In the submissions dated 11th October 2023, counsel submitted that the suit was time barred and the court lacked jurisdiction to determine it because it was filed seventeen years after the cause of action contrary to Section 7 of the Limitation of Actions Act citing In Re estate of Elisha Otieno Odera Ex parte Daniel Ochieng Odera [2016] eKLR and Margaret Wairimu Magugu vs Karura Investment Ltd & 4 others [2019] eKLR.
7.On whether the issue of limitation of time was res judicata, counsel submitted that the issue of limitation was not determined by Ochieng J. since she ruled that the issue of limitation should be determined after hearing the parties in full trial and the suit was then transferred to Ngong Law Courts. Counsel also pointed out that the Record of Appeal was incomplete and should be struck out because the fulling ruling delivered by Justice Christine Ochieng on 18th September 2019 was missing.
8.Whether the Appellant proved the alleged purchase of the suit property, counsel submitted that it was trite law that sale of land ought to be by way of a written sale agreement as per Section 3 of the Law of Contract Act and Section 44 of the Land Registration Act. But in this particular case, the Appellant had indicated that the sale was through a verbal agreement with the Respondent on 3rd December 1997. Therefore, the said sale was unenforceable as was held in Patrick Tarzan Matu & Another vs Nassim Shariff Abdulla & 2 others [2009] eKLR. Therefore, the Appeal should be dismissed and the Respondent be allowed to enjoy the fruits of its judgement.
Analysis and Determination
9.I have considered the grounds of the appeal, the rival submissions and the authorities cited. The issues for determination are:
10.This being the first appeal the court is duty bound to relook at the evidence at the trial court and come up with its own determination as was held by the Court of Appeal in Peter Kamau Njau v Emmanuel Charo Tinga [2016] eKLR:
11.The appellant’s case vide the Plaint dated 9th March 2014 filed at Milimani High Court which was transferred to ELC Kajiado and later transferred to Ngong being ELC No. 21 of 2020 is that on or about 3rd December 1997, the Plaintiff purchased property LR No. 23124/10 located in Ongata Rongai for a consideration of Kshs. 400,000 from the Defendant. The Defendant released the original title to the suit property and the Plaintiff has been in possession and occupation of the suit property since then and had been remitting all statutory payments. However, the Defendant has continuously refused to effect transfer of the suit property in her name and she thus sought for an order of transfer of the suit property.
12.The Respondent denied the allegation indicating that there was never a sale agreement between the Appellant and the Respondent and the alleged transaction was invalid because it was not sanctioned by the members. The Respondent also denied ever receiving payment for the suit property and deponed that if the Appellant was in possession of the suit property, she was there unlawfully. It urged that the suit be dismissed for being statute barred and bad in law.
13.The Learned Trial Magistrate in the Judgement dated 19th August 2021 dismissed the suit for being time barred. She stated thus;
14.I will start by determining whether the trial court erred in dismissing the suit on grounds that it was time barred. From the judgement (excerpt above), the Learned trial magistrate found that the cause of action arose in the year 2001 which is the year that the Appellant paid the requisite fees for transfer of the suit property. However, scrutiny of the evidence contained within the Record of Appeal reveals a pivotal letter dated 2nd November 2007, authored by O.T. Ngwiri & Co. Advocates and addressed to the Respondent. This letter explicitly sought the execution of transfer documents on the grounds that the process had changed since 1997 and the documents executed then could not be registered. The Appellant claims that this letter went unanswered and the Respondent had since refused and/or failed to effect the transfer.
15.The issue in contention is in determining when precisely the cause of action accrued. Was it in 2001 upon the Appellant’s payment of the transfer fees or in 2007 subsequent to the advocates’ directive to the Respondent regarding the execution of transfer forms? This delineation stands as the pivotal issue requiring careful scrutiny and determination in this appeal.
16.Section 7 of the Limitation of Actions Act provides: “An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”
17.This court wishes to respectfully vary from the lower court’s findings. From the record of appeal and the evidence put forth, this court finds that prior to 2007, the Appellant expected the land to be transferred to her since the issue was being handled by the Respondent’s advocate. It was until 2007 when the Respondent refused to execute the transfer documents that the action accrued. The suit having been filed on 11th March 2014 means that the action for recovery of land against the Respondent had thus not been statutorily barred by Section 7 of the Limitation of Actions Act.
18.I have taken into consideration Article 50 of the Constitution together with the foregoing observations I find that it is in the interest of justice that the Judgement dated 19th August 2021 be set aside.
19.I find merit in this appeal and same is allowed.
20.I hereby grant the following orders;
a.The Judgement and decree of the Hon. P. Achieng SPM delivered on 19th August 2021 in SPMCC ELC No. 21 of 2020 is hereby set aside.b.That the matter do proceed by way of retrial before another Magistrate other than Hon. P.Achieng (SPM).c.That costs of this Appeal be borne by the Respondent.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 20TH DAY OF DECEMBER 2023.L. KOMINGOIJUDGE.IN THE PRESENCE OF:Ms. Chelangat for the Appellant.Mr. Andrew Wanyoike for the Respondent.Court Assistant - Mutisya