[2019] KEELC 2386 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC CASE NO.798 OF 2013

ARICARENDA WATHITHA............................................PLAINTIFF

VERSUS

ZIPPORAH WANGECHI MUTURI.....................1ST DEFENDANT

PATRICK MUTURI IHUNGI..............................2ND DEFENDANT

JOYCE MUTHONI MURIUKI...................................SUBSTITUTE

JUDGMENT

BACKGROUND

The Plaintiff vide a plaint dated 15th November 2013 and filed the same date sued the defendant for the following orders:

a) A declaration that land parcel Number NGARIAMA/KABARE/414 is registered in the names of the 2ndDefendant as a trustee for himself and the plaintiff.

b) An order compelling the 2nd defendant to sub-divide land parcel number NGARIAMA/KABARE/414 into equal portions and to register the sub-divisions and transfers in favour of the plaintiff and the 2nd defendant.

c) Costs of this suit and interest

d) Any other or further relief the Honourable court may deem fit to grant.

On 7th January, 2014 the defendants filed a joint statement of defence and counterclaim to the plaintiff’s claim. In their counterclaim, the 2nd defendant seeks a declaration that he is the absolute proprietor of land parcel No. NGARIAMA/KABARE/414. The 2nd defendant also seeks a further order that the Plaintiff, her children, relatives and belongings do vacate from the suit property failure to do which they forcefully evicted therefrom. Cost of the counter claim with interest.

PLAINTIFF’S CASE

The Plaintiff stated that land parcel number NGARIAMA/KABARE/249 was registered in the name of MUTURI IHUNGU (deceased) who is her father-in-law who on 14. 2.1990 transferred the land to his two (2) wives namely LOISE WAMBURA and ZIPPORAH WANGECHI MUTURI (1st Defendant) in equal shares to hold in trust for their respective families. That the aforesaid land was sub-divided into L.R. No. NGARIAMA/KABARE/413 in the name of LOISE WAMBURA MUTURI and NGARIAMA/KABARE/414 in the name of ZIPPORAH WANGECHIMUTURI (1stdefendant).

On 10. 11. 2011, the land parcel No. NGARIAMA/KABARE/414 was transferred to PATRICK MUTURI IHUNGI (2nd defendant) as a gift and on 14. 11. 2011, title deed was issued. The Plaintiff further contends that ZIPPORAH WANGECHI MUTURI (1st defendant) had two (2) children namely JAMES KARUTHI who is her late husband and FLORENCE WAMBUI who is the mother to PATRICK MUTURI IHUNGU (2nd defendant). She stated that land parcel No. NGARIAMA/KABARE/414 is trust land and that the 2nd defendant fraudulently transferred it to himself. She stated that she has been in occupation of the whole land which she has fully developed. She now states that she is entitled to equal shares of the suit property. FRANCIS MUCHIRA KIURA who was called by the plaintiff as a witness gave almost a similar version as that of the plaintiff.

1ST DEFENDANT’S CASE

The first defendant passed away and was substituted by JOYCE MUTHONI MURIU who stated that ZIPPORAH WANGECI MUTURI (deceased) is her cousin. She stated that the plaintiff and ZIPPORAH (deceased) are cousins as they belong to the same clan Unjiru Mbari ya Kabiti. She said that ZIPPORAH’S husband was known as MUTURI IBUNGI who died in 1981. He had two wives ZIPPORAH WANGECHI (1st defendant) and LOISE WAMBURA. Muturi had a parcel of land No. NGARIAMA/KABARE/249. By the time Muturi died in 1981, the title to the land had been charged to a financial institution which had advanced a loan, to Muturi. His two wives repaid the loan and a discharge of charge was issued. A succession cause was filed and the two wives shared the land equally. She stated that LOISE WAMBURUA has one son EPHANTUS MUNGAI and three daughters. She transferred her land to the said son.

ZIPPORAH WANGECHI had two children JAMES KARUTHI and FLORENCE WAMBUI. JAMES KARUTHI died in 2002. He had married one lady known as WAKUTHII KARIITHI deserted him and got married to another man in Kimunye. She stated that ZIPPORAH was therefore left with only one child FLORENCE WAMBUI who is mother to PATRICK MUTURI IHUNGI (2nd defendant). She stated that when JAMES KARIITHI (deceased) died in 2002, ZIPPORAH was left alone because her daughter FLORENCE was living in Mombasa. She (Zipporah) then called her cousin the plaintiff to live with her. By then the plaintiff was living with her father GATEI. The plaintiff came with her children. After sometime, the plaintiff’s children started assaulting the 1st defendant. The plaintiff and her children were told to move out. Instead of going back to her parents, the plaintiff and her children went and lived on the suit land. Due to her ill-health, the 1st defendant decided to transfer the land to the 2nd defendant who is her daughter’s son and named after her husband. The 1st defendant felt she did not have enough energy for litigations with the plaintiff for eviction.

PLAINTIFF’S SUBMISSIONS

The plaintiff through the firm of Ngigi Gichoya& Co. Advocates submitted that the plaintiff has proved her claim on a balance of probabilities as required in law. He cited the following case in support.

1. KOINANGE & 13 OTHERS VS KOINANGE (1968) KLR 23

2. BEATRICE WAMBUI KABUI & 7 OTHERS VS. STEPHEN KIMOTHO KABUI ELC 29 OF 2012‘B’ [KERUGOYA] [Unreported].

3. MBUI MUKANGU VS. GERALD MUTWIRI MBOI [2003] e K.L.R KERUGOYA [unreported].

4. ISACK M. INANGA KIEBA VS. ISAAYA THEURI M. LINYARI & ANOTHER [2018) e K.L.R.

5. Section18 of the Land Act.

6. Section 28 of the Land Registration Act.

1ST DEFENDANT’S SUBMISSIONS

The first defendant submitted that the plaintiff lacks capacity to institute this case as she has not taken out letters of Administration to the Estate of Karuthi (deceased) on whose behalf she is claiming.

The 1st defendant also stated that the plaintiff’s claim is based on fraud and the plaintiff has not proved the same to the required standard.

On the issue of trust, the 1st defendant has proved the same. He cited the following cases:

1. NANCY KAHOYUT VS. EXPERT CREDIT LTD C.A NO.133 OF 2006 (NAIROBI)

2. Unreported.

2ND DEFENDANT’S SUBMISSIONS

The 2nd defendant submitted that the plaintiff lacks the Locus standi to represent the Estate of her alleged husband as she has not taken Letters of Administration in regard to his estate. It is also submitted that though the plaintiff has been using and utilizing the 2nd defendant’s land by cultivating tea and coffee among other crops, it should be noted that the said occupation was a mere extension of kindness by the 1st defendant since she is old and lonely without the consent of the 2nd defendant. As such, he submitted that it cannot be said that the plaintiff has complete occupation of the suit property as she lives with the 1st defendant.

The 2nd defendant also submitted that the plaintiff has not proved that she was married to the 1st defendant’s son. It is also submitted on behalf of the 2nd defendant that the 2nd defendant’s title to the suit land was fraudulently obtained. The 2nd defendant further submitted that the plaintiff has failed to prove that the 2nd defendant is not the owner of the suit land.

In conclusion the 2nd defendant prays that the plaintiff’s case be dismissed with costs. He cited the following cases.

1. JESSE KARAYA GATIMU VS MARY WANJIKU GITHINJI [2014] e KLR

2. JUSTUS MAINA MURUKU VS. JANE WACHIRA MWANGI [2018]

3. PRISCILLA JESONDIA CHUMO VS. NELLY JEBOR [2018] e KLR

4. KIBIRO WAGORO MUKUMI VS FRANCIS NDUATI MADARIA & ANOTHER [2018] e KLR

5. ETHICS AND ANTI-CORRUPTION COMMISSION VS NDERITU WACHIRA & 2 OTHERS MISC.CIVIL APPLICATION NO.19 OF 2015 [unreported] [NAIROBI)

6. SECTION 27 REGISTERED LAND ACT (REPEALED.

ANALYSIS AND DETERMINATION

From my reading of the pleadings by the Plaintiff and the defendants the following are issues for determination;

a) Whether customary law trust exist between the plaintiff and the 2nd defendant in respect of the suit property L.R. No. NGARIAMA/KABARE/414?

b) Whether the 2nd defendant’s title to the suit land was fraudulently obtained?

c) Whether the registration of the 2nd defendant as the owner of the suit property is absolute and indefeasible and not liable to be challenged?

d) Whether the plaintiff has the capacity to represent her alleged deceased husband JAMES KARUTHI?

a) Whether customary Law trust exist between the plaintiff and the 2nd defendant in respect of the suit land L.R. No. NGARIAMA/KABARE/414?

The plaintiff on her testimony explained that the 1st defendant ZIPPORAH WANGECHI MUTURI had two children namely JAMES KARIITHI (deceased) who is her husband and FLORENCE WAMBUI who is the mother to the 2nd defendant.

After she married the said JAMES KARIITHI (deceased) they were blessed with four [4] children namely: ZIPPORAH WANGECHI NGINDA, NJOKI KARUTHI, MUCIRI KARUTHI AND HELLEN WAMBURA. The plaintiff further stated that she has been in occupation of the suit land where she has grown tea and coffee.

These averments given on oath were not shaken on cross examination.

In JUSTUS MAINA MURUKU VS JANE WAITHIRA MWANGI [2018] e KLR the Court cited the case of MBUI MUKANGU VS GERALD MUTWIRI MBUI C.A. NO.281 OF 2000 where 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 Plaintiff has proved that she was married to JAMES KARUTHI (deceased) and were blessed with four children namely ZIPPORAH WANGECI NGINDA, NJOKI KARUTHI, MUCIRI KARUTHI and HELLEN WAMBURA. The testimony of the plaintiff on these facts were not controverted. Of fundamental importance is the testimony by the plaintiff that she is in full possession and occupation of the suit property where she has grown tea and coffee. This is clear evidence that a customary law trust exist between the plaintiff and the suit land. She has also candidly stated that she married JAMES KARUTHI (deceased) and were blessed with children. Her husband JAMES KARUTHI (deceased) after they lived with the plaintiff in the suit land where they developed it by growing cash crops. The only person who can deny the alleged marriage between JAMES KARUTHI (deceased) and the plaintiff is JAMES himself who put the plaintiff in the suit land. The 1st defendant did not raise any issue to the cohabitation between her late son and the plaintiff until he passed on. The cohabitation by a man and a woman and bearing children is also a form of African Customary marriage. I am satisfied that the plaintiff and JAMES KARUTHI (deceased) cohabited with the plaintiff and equity deems as done that which ought to have been done.

b) Whether the 2nd defendant’s title to the suit land was fraudulently obtained?

The 1st defendant in her testimony attempted to explain how the original land title No. NGARIAMA/KABARE/249 registered in the name of MUTURI IBUNGI (deceased) who was also her late husband was charged to a bank to secure some loan which remained unpaid after the demise of the charger. The 1st defendant also stated how they repaid the alleged loan with her co-wife LOISE WAMBURA and a discharge of charge issued. Based on that argument they then sub-divided the land into two portions namely NGARIAMA/KABARE/413 and NGARIAMA/KABARE/414. The defendant did not produce any evidence to corroborate their assertion. Even if the defendants repaid any loan to discharge the original title, the suit property still remain a clan land. The deceased have not also attached the succession cause proceedings showing that they obtained grant to the estate of the late MUTURI IBUNGI through the lawful manner. In the absence of these succession proceedings, I find that the manner in which the sub-division and transfer of the original clan land No. NGARIAMA/KABARE/249 was done and the subsequent transfer to the 2nd defendant is suspect and not above board.

c) Whether the registration of the 2nd defendant’s title to the suit land was fraudulently obtained?

As I have stated elsewhere, the averments by the 1st defendant that the original proprietor of land parcel No. NGARIAMA/KABARE/249 MUTUR IBUNGI (deceased) had given the said title deed to secure a loan which they repaid with her co-wife, that in my view shall remain a mere allegation without any documentary evidence. It follows therefore that the sub-division of the original land parcel No. NGARIAMA/KABARE/249 into parcels No.

NGARIAMA/KABARE/413 and NGARIAMA/KABARE/414 and the subsequent transfer by the 1st defendant to the 2nd defendant was equally suspect. In the result, I find that the title obtained by the 2nd defendant is not a clean title.

d) Whether the registration of the 2nd defendant as the proprietor of the suit property is absolute and indefeasible and not liable to be challenged?

The Plaintiff’s claim against the defendants is for a declaration that land parcel No. NGARIAMA/KABARE/414 is registered in the name of the 2nd defendant as a trustee for himself and the plaintiff. Having found that the suit property is a clan land and that the plaintiff was married to one JAMES KARUTHI (deceased) who is the son to the 1st defendant. I also return with the verdict that the registration of the 2nd defendant as proprietor of the suit land No. NGARIAMA/KABARE/414 is not absolute and indispensable. The title is therefore liable to be challenged. In the final result I enter judgment for the plaintiff against the defendants as follows:

1. A declaration that land parcel No. NGARIAMA/KABARE/414 is registered in the name of the 2nd defendant as a trustee for himself and the plaintiff.

2. An order be and is hereby issued directing the 2nd defendant to sub-divide land parcel No. NGARIAMA/KABARE/414 into two equal portions and to transfer the sub-divisions and transfer in favour of the plaintiff and the 2nd defendant respectively.

3. Failure by the 2nd defendant to comply with paragraph (2) above, either party may apply.

4. In view of the family relation between the parties in this suit, I order each party to bear her own costs of this suit.

Read and signed in open Court at Kerugoya this 28th June 2019.

E.C. CHERONO

ELC JUDGE

28TH JUNE, 2019

In the presence of:

1. Mr. Manegene holding brief for Mr. Ngigi for Plaintiff

2. Ms Githaiga for 2nd Defendant