Maina & 3 others (Suing as Legal Representatives of Joseph Maina Kimani) v Ithagu (Sued as the Legal Administrator of the Estate of the Late Hezekiah Ithagu Mwangi) (Environment and Land Case 231 of 2012) [2025] KEELC 6886 (KLR) (13 October 2025) (Judgment)
Neutral citation:
[2025] KEELC 6886 (KLR)
Republic of Kenya
Environment and Land Case 231 of 2012
MAO Odeny, J
October 13, 2025
Between
John Kimani Maina
1st Plaintiff
David Kagunda Maina
2nd Plaintiff
James Wambugu Maina
3rd Plaintiff
Stephen Ngatia Maina
4th Plaintiff
Suing as Legal Representatives of Joseph Maina Kimani
and
Harrison Njuguna Ithagu
Defendant
Sued as the Legal Administrator of the Estate of the Late Hezekiah Ithagu Mwangi
Judgment
1.The Plaintiff sued the Defendant herein vide Plaint dated 12th October 2009, which was amended on 14th May 2014, and further amended on 9th May, 2022. The Plaintiff sought the following orders:a.A declaration that the Defendant holds half a portion of Plot Number L.R No 14246/4 Lanet Nakuru Municipality in trust for the Plaintiff herein as the legal representative of the estate of the Deceased.b.An order for the Defendant to transfer half a portion of Plot Number L.R No 14246/4 Lanet Nakuru Municipality to the Plaintiff herein and in default, the Deputy Registrar to execute the transfer documents on behalf of the Defendant.c.The Defendant to pay the costs of this suit.d.Any other relief that this honourable court shall deem fit and just to grant.
Plaintiff’s Case
2.PW1, Veronica Wanjiku Maina, adopted her witness statement dated 2nd November, 2015, as part of her evidence in chief, and testified that she is the Administrator of the estate of the late Joseph Maina Kimani who was her husband. She stated that she was issued with a certificate of confirmation of Grant dated 15th May 2007, which she produced as PExhb 1.
3.She further testified that she signed an agreement dated 29th August 1977, together with Rahab Wanjiru, the wife to the defendant, Austin Wachira, and Samuel Mbugua.
4.It was PW1’s testimony that the defendant had bought the plot, then subdivided a portion to Samuel Mbugua, whereby Hezekiah Ithagu Mwangi and her late husband Joseph Maina Kimani, agreed that the plot belonged to both of them, as per the signed agreement. It was further PW1’s evidence that the two constructed a permanent building on the plot, which is still standing to date.
5.PW1 testified that they constructed a commercial building with two rooms, a shop and a butchery, and that Hezekiah Ithagu Mwangi had the shop while Joseph Maina Kimani had the butchery. It was her evidence that they took possession of the butchery between 1977 & 1978 and have never vacated the suit property, but the same is currently being used as a bar. Further that they never paid any rent to Hezekiah Ithagu Mwangi.
6.PW1 produced an agreement dated 29th August 1977 as Pexb 2, and stated that they were not tenants but owners of the suit land. It was PW1’s testimony that the suit land was subdivided into five portions and that they are only claiming half of a portion taken by the defendant who wants to disposes her. PW1 also stated that they discussed and agreed on the subdivision at their home and urged the court to grant the orders as prayed.
7.Upon cross-examination by Ms. Njoroge, PW1 stated that she knows the plot but does not remember the plot number. It was her testimony that in 1977, she was younger and she even signed the agreement. She stated that the agreement does not mention the plot number, but they had agreed on how to share or subdivide the plot and there was a portion of the plot, which had not been developed.
8.PW1 informed the court that the Defendant bought the initial plot from a white settler and sold a portion to her husband. PW1 also stated that her husband raised money and bought the plot but, does not remember how much he paid. It was her evidence that it was between Kshs.10,000/ and Kshs. 20,000/. PW1 stated that a Surveyor did the subdivision of the suit land into two portions, but does not remember the Plot No. of the portion she occupies. That when the subdivision was done the construction was not complete, and she witnessed her husband participating in the digging of the foundation, and used to pay rates to the Council. PW1 stated that she only stopped paying the rates when the defendant started demanding the plot.
9.PW1 further stated that the defendant was compensated, when a road was constructed on part of the plot, but did not inform her. PW1further stated that her husband and the defendant were friends, and it is not true that her husband only assisted the Defendant with the construction and did not own the plot. However, she stated that she does not have any ownership documents in court.
10.Upon re-examination by Mr. Waiganjo, PW1 testified that Plot No. 9032 Lanet and Kshs. 12,000/, is written at the top of P. Exhb 2. PW1 testified that when the government acquired a portion for the construction of a road, she was never paid any compensation.
11.PW1 testified that the plot, which the defendant and her husband had, was not surveyed. PW1 testified that the two discussed the survey of the original big plot in her house, further that the portion that was owned by both of them where the building was constructed has never been surveyed.
12.PW2, Stephen Ngatia Maina, adopted his witness statement dated 13th February 2016, as part of his evidence in chief, and stated that he is a businessman, who lives in Lanet, Nakuru, County, and a son to the late Joseph Maina Kimani.
13.PW2 was shown PExhb 2, and stated that the agreement dated 29th August 1977, in respect of Lanet Kwirera Shop on Plot No. 9032, was kept in their house which he later picked and kept. PW2 testified that it refers to account of the period from 1st February 1972 to 29th August 1977, and indicates that the defendant and Joseph Maina had completed their company building. PW2 testified that the defendant had sold a portion of his land, which they both signed and was familiar with their signatures.
14.It was PW2’s evidence that Plot No. 9032 measuring 2.5 acres initially belonged to Hezekiah Ithagu Mwangi and Samuel Mbugua, who had a bank loan, which they could not pay therefore, Hezekiah Ithagu, invited his father and Samuel Mbugua invited Samuel Chege Karuga to help him. PW2 testified that the debt was paid and they agreed to subdivide the plot to give each person their portion, which was done. He also stated that Samuel Mbugua, Austin Wachira, an uncle and Rahab Wanjiru (deceased) were witnesses to the agreement.
15.PW2 stated that one portion, is called Lanet Gas Centre and Lanet Bar & Restaurant while the other side is Lanet Supermarket. PW2 testified that he has operated the bar for nine years and he has never paid any rent to the defendant during this period. Further that the defendant has never demanded any rent from him.
16.PW2 testified that before he took over the shop, his brother Davis Kangunda Maina, and his uncle Austin Wachira operated it. PW2 stated that he does not know when he started operating as his mother at one point also operated it. He also stated that the Defendant has never operated the shop.
17.PW2 testified that Plot No. 9032 was subdivided on 7th April 1988, into five (5) portions namely 14246/1; 14246/2; 14246/3; 14246/4 and 14246/5, and his family had an interest in 14246/4, of which he has a copy of a Deed Plan No. 132985. He stated that the building known as Kwirera shop is located at the centre of 14246/4, at the front side of the plot, which is roughly a quarter of an acre of which they claim half of 14246/4, and the other half should be given to the defendant. PW2 produced a copy of deed plan No. 132985 as P. Exhb No.3.
18.PW2 further testified that he has certified copy of a Rate card for 14246/4 issued by the Municipal Council of Nakuru which was opened in the names of Hezekia I. Mwangi and Maina Kimani, however, Maina Kimani’s name was crossed out but later inserted above the crossing. PW2 testified that there is a remark on it stating. “Has a case in court HCCC No. 295/2009. No. transactions”
19.PW2 informed the court that the Post Office Box Number was initially indicated in the rate card as Box No. 548, Nakuru, which was for Lanet Enterprises Ltd where his father was a director. PW2 stated that the box Number was being used jointly with the defendant and he does not know the new address shown or who changed it.
20.PW2 testified that there is another rate card for the years 2007 to 2009, in the names of the defendant and his late father. It was his evidence that the Municipal Council Register shows the subdivision of LR 9032, whereby the owner of 14246/2, is shown as Damaris Wanjiku Chege, the wife of Samuel Chege Karuga, who had been invited by Samuel Mbugua, and that Damaris Wanjiku Chege's son currently occupies her plot.
21.PW2 also testified that the register shows the owners of 14246/3 as Mbugua Njoroge and 14246/5, as Hezekiah Ithagu Mwangi, respectively. PW2 informed the court that the owners of 14246/4 are Hezekiah Ithagu Mwangi of P.O. Box 470, Nakuru, and Maina Kimani of P.O Box 660, Nakuru, measuring approximately 0.0556ha where the building is erected.
22.PW2 produced the rate cards for 1995 to July 2007, July 2007 to January 2009 and the extract of the of subdivision of LR No. 9032 from the register marked as PMFI 4(a), PMFI 4 (b) and PMFI 4(c), respectively. PW2 stated that he received a rates demand notice for the property from the Municipal Council of Nakuru addressed to Hezekiah I. Mwangi and Maina Kimani for Plot No. 14246/4 dated 13th October 2009 which he produced as PExhb 5.
23.It was PW2’s evidence that Hezekiah Ithagu Mwangi was a partner to his father, who had a joint account No/ 20090785 at Kenya Commercial Bank, and produced Bank statements for 1977, 1978, 1979, 1974, 1975, and 1976, as PExhb 6A to 6I.
24.PW2 also stated that vide a tenancy agreement dated 3rd February 1973, in respect of LR No. 9032, where the address to the tenants refers to Hezekiah Ithagu Mwangi and Joseph Maina (his father) as the landlords who signed the agreements. They agreed to rent a portion of the shop for a monthly rent of Kshs, 120/ to one Michael Njenga Mbita. PW2 testified that Hezekiah Ithagu has not sought to remove them from the land and has never had any issues in obtaining the licence to operate the shop.
25.Upon cross-examination by Ms. Njoroge, PW2 stated that he has known Hezekiah Ithagu for many years, who was his father’s business partner. He stated that they had a butchery and a shop business and the bank statements are for the period they were constructing and running the butchery, but does not know when the account was opened.
26.It was PW2’s evidence that he did not know whether Hezekiah Ithagu, and his father had incorporated a company to run the business, but the agreement stated that there would be equal shares in the company and did not state that any plot was being subdivided. PW2 stated that he knows Hezekiah Ithagu bought the suit plot, and that his father used to pay rates through Kamere, Advocate.
27.Upon re-examination by Mr. Waiganjo, PW2 was referred to PExhb2 and stated that the suit Plot No. 9032 belonged to Hezekiah Ithagu Mwangi, who sold part of the plot to their company, who paid as follows, Hezekiah Ithagu, Kshs.19, 851.85 while Joseph Maina Kimani paid Kshs.20, 751.95 and both signed the agreement. It was his evidence that he is the one who operates the shop and Hezekiah Ithagu, has leased out the other shop to someone else. He also stated that they do not have a claim on the whole of Plot No. LR 9032.
28.PW3, Wilson Waweru Ngigi, testified that he is an Administrative Officer in the County Attorney’s office, and was summoned to this court. He testified that he has been working for the Municipal Council of Nakuru, since 1987, and is familiar with the records that were kept by the Municipality.
29.PW3 was shown a card and testified that it is a record maintained for LR No. 142/46/4 for the purpose of payment of rates by the Municipal Council of Nakuru but currently the cards are under the officer in-charge, rates. He testified that the rate payers are Hezekiah I. Mwangi and Maina Kimani and produced a copy of the card as PExh.No. 8. He also stated that the other card is a continuation of the payment for LR NO. 142/46/4, which bears the names Hezekiah I. Mwangi and Joseph Maina Kimani.
30.PW3 was shown a handwritten document and testified that it is a copy of part of the register for opening of the rates card and that the details indicate the owners of LR 14246/4, as Hezekiah I. Mwangi and Maina Kimani. PW3 further testified that it also shows LR Nos. 14246/3 and 14246/5. LR 14246/5 belong to Hezekiah I. Mwangi. PW3 testified that the owner of LR 14246/2, is shown as Damaris Wanjiku Chege, and transferor is Hezekiah I. Mwangi and Mbugua Njoroge, which he produced as PExh.10.
31.Upon cross-examination by Ms. Njoroge, PW3 stated that he works in the County Government but not in the Rates office, but had to go to the Rates office to get these documents from the person in-charge, one Margaret Nyaga. PW3 informed the court that the owners normally bring the documents to the rates office after subdivision and that the Register is opened in the valuation office when the owners bring ownership documents but the parties only brought an agreement.
32.PW3 was shown DMFI-15, and he stated that by then, the rates card had been opened, and that there are two clearances for proof of rates payment and transfer. PW3 was shown DMFI-18, and he stated that these are the original documents and does not have records to show how the records changed. PW3 did not dispute that DMFI-18, is from the County records.
33.PW3 was shown PExh.8 and stated that the name Hezekiah is very clear and P. O. Box 548 has been cancelled with no substitution with any other P.O Box Number. He stated that the name Maina Kimani is visible but faint. PW3 was also shown PExh.9 and stated that it does not show the plot number, but a continuation of PExh.8. He stated that he obtained PExh.10, a hand written document, kept at the Valuation Office. He stated that the money indicated determines rate payment, but there is no indication that it has come from the valuation office.
34.Upon re-examination by Mr. Waiganjo, PW3 testified that he is familiar with records pertaining to land as they affect conveyancing. He testified that the handwriting on PExh.10 is Mr. Rono’s and DMFI 15 and 18 are also from the County Government. It was PW3’s testimony that it is not necessary that two joint owners pay rates. He testified that the council is not a party to their agreement and has never seen the original title to this property.
35.PW4, Douglas Githaka Mbugua adopted his witness statement dated 15th February 2016, and testified that he is a resident at Lanet, a businessman and the son of Samuel Mbugua Njoroge (deceased). It was his testimony that Samuel and Hezekiah were partners in the purchase plot No. 9032. He testified that his father was joined by Samuel Chege Karuga and Kimani was joined by Hezekiah Ithagu and they became 4 plots.
36.PW4 was shown PExh.10 and he testified that LR No. 14 246/2 – 5 arose upon the subdivision of the plot and each plot was given a number, and that LR 14 246/1 was disregarded as it was a road. He stated that LR 14 246/2 became Damaris Wanjiku Chege’s, wife of Samuel Chege Karuga, and that Hezekiah transferred LR 14 246/3 to his father Mbugua Njoroge, and LR No. 14246/4 belonged to Hezekiah Ithagu and Maina Kimani.
37.PW4 was shown minutes of 28th May, 1998 and testified that he wrote these minutes and that Samuel Mbugua (his father), Samuel Chege (his partner) and Joseph Maina Kimani were present at the meeting. PW4 testified that Hezekiah Ithagu, was not present and they were discussing how the plot would be paid for and each person was to explain what he had paid and his balance. PW4 informed the court that afterwards when the meeting was over Hezekiah Ithagu, came and concurred with the minutes by signing after reading them, which he produced as PExh.11.
38.PW4 was shown minutes of 12th May, 1993, and testified Joseph Wainaina Mbugua, his late brother, wrote the same in the absence of Samuel Chege, Joseph Maina, Hezekiah, and Samuel Chege. PW4 testified that they discussed how the land would be subdivided which was later done. PW4, produced the document in respect of plot No 9032, as Pexb 12 where his father, Ithagu Mwangi, Samuel Chege and Joseph Maina Kimani, signed on page 4.
39.Upon cross-examination, PW4 stated that the meeting of 12th May, 1993 was to deliberate on the subdivision of plot No 9032, which was done and that the title was in the name of Hezekiah Ithagu Mwangi and Samuel Mbugua Njoroge. PW4 stated that at no time was the title in the name of Joseph Mwangi Kimani, but there was a sale agreement dated 29th August, 1977 between Hezekiah Ithagu Mwangi and Joseph Maina Kimani.
40.He stated that it was a sale of a company, and the agreement does not mention the size of the land being sold, but they built a building together, and each person was running his own business. PW4 stated that when his father and Hezekiah Ithagu Mwangi, subdivided the plot, his father did not get a title, as the suit plot is still in the names of Hezekiah Ithagu, and his father and has not seen any transfer.
41.Upon re-examination, PW4 testified that the suit plot was divided into two and there is a road in between. He testified that they have not gotten titles due to this case which is still pending. PW4 testified that there are new plot numbers after the subdivision and he used to be called during the meetings.
DEFENDANT’S CASE
42.DW1, Harrison Njuguna Ithagu, relied on his father’s statement dated 5th October 2015, his statement dated 3rd June 2024, and the documents dated 3rd May 2011, which he produced as DExhb No 1 to 21. It was his testimony that he became the Administrator of the estate of the late Hezekiah Ithagu Mwangi who is his father; vide Succession Cause No 116 of 2020 at the Chief Magistrate’s Court.
43.DW1 further produced the list of documents dated 20th March, 2023 as DExhb No 22, the letter dated 5th April, 1980 as DExhb No. 23, and a charge document dated 4th March, 1976 as DExhb No 24. DW1 also produced a further list of documents dated 6th June, 2024, as DExhb No 25 to 29. He testified that his father bought the suit land alone and not with Mr. Maina, but with Simon Mbugua, as per the title which has two names. He testified that the second entry indicates that they were the joint owners of the suit land.
44.DW1 testified that the letter dated 5th April, 1980, indicated that Mr. Maina who was a tenant was to vacate the premises, as he was unable to pay rent for six months at Ksh 4,500/= per month. DW1 testified that the suit land was sub-divided into five portions and the disputed plot No. 14246/4 , has a building where they stay, and that his late father was the one paying rates. DW1 produced maps, which bear Hezekiah Ithagu’s name, and Mr. Mwangi’s name does not appear anywhere. DW1 testified that the plot belongs to his late father and they do not owe the plaintiff’s family anything.
45.Upon cross-examination by Mr. Waiganjo, DW1 stated that he is a son and administrator of the estate of Hezekiah Ithagu, and that he knew Joseph Maina Kimani and his wife Veronica Wanjiku Maina who is also deceased. He also confirmed that he knew his son Stephen Ngatia Maina. It was his testimony that he was not a witness to the transaction involving the dispute before the court and the statement dated 5th October, 2015, is not signed.
46.DW1 also testified that Mbugua was to get 0.425 acres which is 17% of the land and Hezekiah Ithagu Mwangi was to get 2.07 acres which is 83%, and that the plaintiff is claiming a portion of the land, more specifically where there is a shop which they are using currently but cannot remember for many years but he cannot remember when they started using it.
47.DW1 stated that the letter asking for rent from the Plaintiff dated 5th April, 1980, was originally addressed to Joseph Kimani, but does not know how it was sent and whether he received it or not. DW1 stated that he does not have any receipts to show that Joseph Kimani paid any rent and has never received any rent from him. He stated that he is also not aware whether his father received any rent from him.
48.DW1 referred to PExhb No 2 dated 29th August, 1977, and stated his father signed the document together with Joseph Maina Kimani, in respect of the building, which was done by his late father, Hezekiah Ithagu Mwangi and Joseph Kimani. DW1 stated that the plot belonged to his father but he brought in Joseph Kimani to work together and construct a building, and testified that his mother, Rahab Wanjiru, Joseph Kimani’s wife, and Samuel Mbugua, witnessed the agreement. He further stated that the agreement does not state that Joseph Maina would be a tenant, and confirmed that part of the shop is occupied by their family and the other portion by Joseph Kimani’s family. DW1 stated that he does not know that his father and Joseph Kimani Maina had an account at Kenya Commercial Bank.
49.DW1 referred to PExhb No 5, which is a letter from the Municipal Council of Nakuru indicating that plot No 14246/4 belongs to Hezekiah Ithagu and Joseph Maina, PExh No 12, minutes of a meeting held on 12th May, 1993 to discuss plot No 9032, and confirmed that Samuel Mbugua, Samuel Chege, Hezekiah Ithagu and Joseph Kimani, signed the minutes.
50.DW1 further testified that Samuel Mbugua was his father’s partner in plot No 9032 and the meeting was to discuss the issue of land rates and rent. He stated that Joseph Kimani had completed paying his debt, and that PExhb No 11 minutes dated 28th May, 1988, show that his father was absent during the meeting, but he confirmed that he gave his consent as to what transpired in the meeting.
51.Upon re-examination, DW1 testified that PExh 2 does not show a sale agreement between his father and Joseph Kimani, and that his father indicated in his statement dated 5th October, 2015, that he built a shop and asked a prospective tenant to pay Ksh 20,000/= which he paid in instalments. He testified that PExh No 5, a demand for rates and rent does not show that his father and Joseph Maina own the plot jointly.
Plaintiff’s Submissions
52.Mr. Waiganjo, counsel for the Plaintiff filed submissions dated 25th June, 2025, and identified the following issues for determination:a.Whether the Defendant holds half of plot Number L.R No 14246/4, Lanet Nakuru Municipality, in trust for the Plaintiff as legal representative of the estate of Joseph Maina Kimani?b.Whether the Plaintiff as the legal representative of Joseph Maina Kimani is entitled to a transfer of half of L.R 14246/4 LANET Nakuru Municipality?
53.Counsel submitted that the conduct of the parties clearly shows that both Hezekiah Ithagu and Mbugua Njoroge held part of L.R 9032, in trust for Samuel Chege and Joseph Maina Kimani whose interests were not captured in the title deed.
54.Counsel submitted that the Plaintiff claims that the Defendant held half of L.R 14246/4, a subdivision of LR 9032 in trust for him, and that there is sufficient evidence to show that that is where he runs a shop. Further that the Defendant has not adduced any evidence to prove that he ever paid rent to him on account of the said shop.
55.Counsel relied on the cases of David Wanjohi Kamau and another vs Jane Wanja Gachiengo Nakuru H.C,C No 303 of 1999, Jane Wanja Gachiengo vs David Wanjohi Kamau & Another Civil Appeal No 98 of 2008,L.N vs S.M.M [2013] eKLR and Mbothu & 8 others vs Gachira Waitimu & 11 others [1986] KLR 171, 189.
56.Counsel further submitted that the letter dated 3rd February, 1992, produced as part of the Plaintiff’s exhibits shows that the late Joseph Maina Kimani, and Hezekiah Ithagu Mwangi were partners, as they were doing business together. Counsel submitted that they jointly purchased a portion of L.R 9032, together for Ksh 12,000/=, and they both contributed money to build a shop which is the subject matter of this suit.
57.Counsel urged the court to find that the Plaintiff has proved his case on a balance of probabilities and enter judgment as prayed in the plaint plus costs.
Defendant’s Submissions
58.Ms. Nancy Njoroge, counsel for the Defendant filed submissions dated 27th June, 2025, and submitted that the Plaintiff has failed to prove that he purchased part of parcel LR 14246/4, and the agreement that has been relied on refers to parties contributing money to construct a building and the respective contributions of each party towards the building.
59.Counsel submitted that the same is an acknowledgment towards the completion of the Kwirera shop and the same explains why the plaintiff has never paid rent to the defendant as he contributed to building the same.
60.Counsel further submitted that the Defendant has proved he bought his land parcel LR 9032, from James Alexander McDonald which was transferred to him on 15th December, 1966, together with Mbugua Njoroge, and that the Defendant rented out a butchery to the Plaintiff.
61.It was counsel’s further submission that the title document shows that the Defendant owned the property LR 9032, with one James Mbugua, and relied on the letters dated 17th March 1970, and 7th December, 1973 from the Department of Lands Nairobi and the Municipal Council, respectively.
62.According to counsel, the building plans, bears the Defendant’s name solely and the list of documents dated 3rd May, 2011, clearly shows that the Defendant is the owner of the building and the rates clearance proves this as well. Counsel relied on Section 3 (3) of the Law of Contract Act, Sections 107, 109 and 112 of the Evidence Act and the case of Jennifer Nyambura Kamau Humphrey Mbaka Nandi [2013] eKLR, and urged the court to dismiss the suit with costs.
Analysis And Determination
63.The issues for determination are:a.Whether Plot Number 14246/4 Lanet Nakuru Minicipality was jointly owned by the Hezekiah Ithagu Mwangi (Deceased) and Joseph Maina Kimani (Deceased)?b.Whether the Defendant holds half of plot Number L.R No 14246/4, Lanet Nakuru Municipality, in trust for the Plaintiff as legal representative of the estate of Joseph Maina Kimani?c.Who should bear the costs of the suit?
64.It is the Plaintiff’s case that sometimes on 1st February 1972, the Defendant and Joseph Maina Kimani, (Deceased) jointly agreed to build business premises, namely Lanet, Kwirera, (shop and butchery) on Plot No. 9032, Lanet, Nakuru which belonged to the Defendant. It is the Plaintiffs’ case that Joseph Maina Kimani, (Deceased) paid the sum of Ksh 20,751.95, and the Defendant paid a sum of Ksh 19,851.85 for the construction of the business premises, which was completed in 1977.
65.It is further, the Plaintiff’s case that in or around 1978, the Defendant borrowed some money from the Deceased to be used in repayment of the Defendant’s bank loan and the Defendant provided a portion of his share in Plot No.9032, Lanet , Nakuru, as security for the money advanced by the Deceased.
66.The Plaintiff also stated that Plot No.9032, Lanet, Nakuru was subdivided into five portions (LR No 14246/1, LR No 14246/2, LR No 14246/3, LR No 14246/4 and LR No 14246/5) on 7th April, 1988, respectively, and after the subdivision, the Defendant and Joseph Maina Kimani (Deceased) were allocated Plot No LR 14246/4 Lanet, Nakuru Municipality measuring 0.0556 hectares or thereabout which was to be equally subdivided between the two of them and had been paying rates for the said plot jointly.
67.The Plaintiff further contends, that the Defendant without consulting the Plaintiff built temporary structures for conducting business (shops) on the said parcel, where he has been collecting rent therefrom denying the Plaintiff proceeds from rent collected from the rental shops.
68.The Plaintiff’s case is that the Defendant failed to subdivide and transfer half of the parcel of land known as Plot Number 14246/4 Lanet Nakuru Municipality though the same was jointly owned by the Defendant and Joseph Maina Kimani (Deceased).
69.The Defendant, on the other hand, stated that the parties entered into an agreement to construct a business premises but there was no agreement where the Defendant sold any portion of Plot No 9032. The Defendant denied borrowing money from the Plaintiff and he further denied providing Plot No 9032, as security for any loan.
70.It is the Defendant’s case, that the Plaintiff was not a partner or co-owner of plot 9032 Lanet and that the sub-division of plot No 9032 Lanet involved Hezekiah Ithagu Mwangi, Samuel Mburu Mbugua and Samuel Karuga.
71.On the first issue whether Plot Number 14246/4, Lanet, Nakuru Municipality was jointly owned by the Hezekiah Ithagu Mwangi (Deceased) and Joseph Maina Kimani (Deceased), the relationship started with an agreement dated 29th August, 1977, contained in a black ledger book, of which the subject matter was Plot No.9032. The agreement is handwritten and it refers to a company and the parties mentioned are Mr. Hezekia Ithagu Mwangi and Mr. Joseph Maina Kimani. The witnesses are Samwel Mbugua, Austin Wachira, Rahab Wanjiku and Veronica Wanjiku.
72.The evidence on record further reveals that the Plaintiff and the Defendant were working together as business partners who had a joint bank account at Kenya Commercial Bank and their transactions were in respect of furtherance of their business on the suit land.
73.It is also on record that the late Joseph Maina Kimani took possession of his shop on the suit land plot No. 14246/4 and that his representative remains in possession to date, and has never been evicted or asked to vacate. The Defendant gave evidence that they had demanded vacant possession of the suit premises vide a letter dated 5th April 1980, but there was no proof of how the letter was delivered, and if so, whether the Plaintiff received it, and further that the Defendant never took any action to actualize the demand to vacate the premises, which is more than 45 years ago.
74.Similarly, there were letters on record to show there was interaction between the Plaintiff and the Defendant on coming together as partners, opening a joint account, inviting other people to form a company to do business, minutes of a meeting to collect money and subdivide the suit land into 5 portions, which was done, payment of their respective dues, payment of rates, the rate cards and demand notices in the names of the Plaintiff and the Defendant. Not all these can be by coincidence but through the actual design of the parties.
75.Section 3(3) of the Law of Contract Act, provides that:
76.As earlier stated, that the two entered into an agreement which was in writing, and were intentional in their interaction in respect of the suit land and the business thereon. The agreement did not suffer from any illegality as the parties signed the same and the terms were expressed as required by law. Who are we to come between parties who agreed on the terms that they wanted effected. The court only comes in, where there is an illegality, fraud or where an agreement is in furtherance of a crime or against public policy.
77.In the case of Prudential Assurance Co. v Sukhwender Singh Jutney and Another cited in Weru v Nderitu (Civil Appeal E024 of 2022) [2023] KEHC 20678 (KLR) (21 July 2023) (Judgment) the court held that once parties have reduced their agreement into writing, no extrinsic evidence, oral or written may be admitted to contradict, vary, or add to the terms of the written agreement.
78.It is not disputed that the Defendant bought the suit plot LR No 9032 from a white settler, but he later invited Joseph Kimani and three others to contribute money to get a share of the plots upon subdivision, which was done. It is also admitted that the Plaintiff and the Defendant contributed money and constructed a commercial building, which is still operational. How was the Plaintiff supposed to benefit or recover the money used for the construction and why were both parties paying rates in their joint names?
79.The defendant claimed that the Plaintiff was a tenant at the constructed premises. Why was his name inserted as a ratepayer, as tenants only pay rent and not rates? Rates are payable by the owners of the suit premises. See receipt dated 15th November 1990, from Kamere Advocate, being a deposit of land Rent and Rates on 9032, Lanet for Kshs 20,000/ received from Joseph Maina Kimani. The parties had agreed that each person pays what was due as rates to Kamere Advocate.
80.PW3, an Office Administrator confirmed that there is a record maintained for LR No. 142/46/4 for the purpose of payment of rates by the Municipal Council of Nakuru, and the rate payers are Hezekiah I. Mwangi and Maina Kimani which he as PExh.No. 8, & PExh.9, respectively. There was no evidence by the Defendant to debunk why the Plaintiff and the Defendant’s names were recorded as rate payers for the suit land.
81.In the case of David Wanjohi Kamau & Another V Jane Wanja Gachiengo [2006] eKLR, the court held that:
82.On the second issue as to whether the Defendant holds in trust the suit land on behalf of the plaintiff, Black’s Law Dictionary, 9th Edition; defines a trust as :
83.In Elements of Land Law, 5th Edition by Kevin Gray and Susan Francis Gray at page 824 paragraph 7.1.11, explained that three types of trusts can arise with respect to land, as follows:
84.In the House of Lords case of Oxley Vs Hiscock (2005) 3 WLR 715, it was held as follows:
85.In this case, there was no express creation of a trust but from the contributions by the parties documented in an agreement and minutes that were never disputed, show that there was an intention of creation of a resulting trust. The Plaintiff took possession, is still in possession to date, and has been told to neither vacate, nor pay rent in respect of the suit premises. The Plaintiff claims part of the suit land where the shop is located which they were to share equally with the Defendant but the transfer of the said portion has not been effected.
86.In the case of Archer & another v Archer & 2 others [2023] KECA 298 (KLR), the Court of Appeal held that:
87.The intent to create a resulting trust is presumed by a party who buys the property in the name of another, and the property is deemed to be held in trust for the purchaser. In this case, the Defendant held half of the suit property in trust for the Plaintiff.
88.I have considered the pleadings, the evidence by the parties, the submissions by counsel and the relevant judicial authorities, and find that the Plaintiffs have proved their case on a balance of probabilities as required by law. I therefore issue the following specific orders:a.A declaration is hereby issued that the Defendant holds half a portion of Plot No. L.R No 14246/4 Lanet Nakuru Municipality in trust for the Plaintiff herein as the Legal Representative of the estate of the Deceased.b.An order is hereby issued directing the Defendant to transfer half a portion of Plot No. L.R No 14246/4 Lanet Nakuru Municipality, to the Plaintiff herein within 60 days, in default the Deputy Registrar to execute the transfer documents on behalf of the Defendant.c.The Defendant to pay costs of the suit.
DATED, SIGNED AND DELIVERED AT NAKURU THIS 13TH DAY OF OCTOBER 2025.M. A. ODENYJUDGE