[2017] KEHC 1154 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC SUIT NO. 270 OF 2007

BENSON KAGUA NJOROGE.................................................PLAINTIFF

VERSUS

1. ELIJAH MAINA NJOROGE

2. BENSON KAGUA NJOROGE

3. JOSEPH MWANGI NJOROGE & 14 OTHERS.........DEFENDANTS

JUDGMENT

1. The plaintiff is the registered proprietor of all that parcel of land known as L.R. No. Loc. 2 Kinyona/603 situated at Kigumo, Muranga County (hereinafter referred to as “the suit property”). The suit property was registered in the name of the plaintiff in the first instance on 2nd July, 1962. The plaintiff has contended that the suit property was given to him by his grandfather who was known as Kagua Njoroge (also known as Kagua Hika) (hereinafter referred to as “Kagua”) as a gift. The plaintiff and the defendants are relatives. The 7th defendant is the plaintiff’s stepmother while the remaining defendants are the plaintiff’s stepbrothers and stepsisters. The plaintiff’s father who was also the father of the 1st to 6th and the 8th to 14th defendants and the husband to the 7th defendant was known as Elishavan Njoroge Kagua (hereinafter referred to as “Njoroge”). The plaintiff brought this suit against the 1st and 2nddefendants on 14th March, 2007 seeking a permanent injunction to restrain the two defendants from trespassing on the suit property and general damages for trespass. The 3rd to 14th defendants were added to the suit as defendants on 21st May, 2008. The 1st and 2nd defendants’ statement of defence and counter-claim was amended on 27th May, 2008 to add the additional defendants to the suit. The plaint was however not amended.

2. In his plaint dated 14th March, 2007, the plaintiff averred that on or about 5th January, 2007, the 1st and 2nd defendants entered the suit property illegally and commenced cultivation thereon claiming that the same was family land. The plaintiff averred that the 1st and 2nd defendants had been informed by Njoroge that the suit property was given to the plaintiff by the plaintiff’s grandfather, Kagua as a gift.

3. The plaintiff averred that the 1st and 2nd defendants were allocated land by their father, Njoroge, and as such their claim over the suit property which was not owned by Njoroge who was alive when the claim was made was not justified. The plaintiff averred that the 1st and 2nd defendants were cutting down trees planted by the plaintiff on the suit property and using the same to burn charcoal. The plaintiff averred that the 1st and 2nd defendants refused to vacate the suit property even after a demand was made upon them to do so.

4. The 1st and 2nd defendants entered appearance and filed a defence and counter-claim against the plaintiff on 20th April, 2007. As I have mentioned above, the 1st and 2nd defendants’ statement of defence and counter-claim was amended on 27th May, 2008 to add the 3rd to 14th defendants to the suit. In their amended defence and counter-claim, the defendants averred that theregistration of the plaintiff as the proprietor of the suit property did not confer upon the plaintiff exclusive right to use the said property.

5. The defendants averred that the plaintiff was registered as the proprietor of the suit property on behalf of their father, Njoroge. The defendants averred that Njoroge was the son of Kagua who was the initial owner of the suit property. The defendants averred that the plaintiff was registered as the proprietor of the suit property to hold in trust for all the children of Njoroge. The defendants averred that the plaintiff had no right to benefit from the properties of Kagua as he was not his son. The defendants averred in the alternative that Kagua could not have effected a valid transfer of the suit property in favour of the plaintiff because as of the date of the plaintiff’s registration as the owner of the suit property, the plaintiff was only 4 years old. The defendants averred that the plaintiff was registered as the owner of the suit property to hold in trust for future distribution to the grandchildren of Kagua.

6. The defendants averred further that Kagua owned land measuring 32 acres. The defendants averred that the said parcel of land was supposed to be shared amongst Kagua’s four sons one of whom was Njoroge, the plaintiff’s and the 1stto 6th and the 8th to 14thdefendant’s father. The defendants averred that Kagua’s parcel of land aforesaid was supposed to benefit his sons, grandsons, unmarried and divorced daughters and granddaughters. The defendants averred that all the grandsons of Kagua save for the defendants benefited from the said parcel of land.

7. In their counter-claim, the defendants averred that the suit property is family land and that the plaintiff has no right to exclusive use of the same. The defendants reiterated that the suit property was registered in the name of the plaintiff to hold in trust for himself and other children of Njoroge. The defendants sought a declaration that the plaintiff holds the suit property in trust for all the children of Njoroge and a permanent injunction restraining the plaintiff from excluding the defendants and other children of Njoroge from using the suit property.

8. At the trial, the plaintiff gave evidence and called one witness. On their part, the defendants called two witnesses. In his evidence, the plaintiff (PW1) stated as follows. He is the registered owner of the suit property. He acquired the suit property from his grandfather, Kagua. His father was known as Njoroge. He was born in 1958. Kagua died in 1965. When Kagua gave him the suit property, they were only two sons in their family, Francis Mugane Njoroge (PW2) and him. The suit property was not owned by his father, Njoroge at any time. His father had no interest in the suit property. His father had all along acknowledged that the suit property belonged to him(the plaintiff). His father had another parcel of land at Njambini measuring 23 acres. He sued the defendants because they were interfering with the suit property. The defendants had not been born when he acquired the suit property. His father married a second wife in the year 1976. The defendants are his step brothers. His brother Francis Mugane (PW2) has no claim over the suit property.The suit property isnot held by him in trust for the defendants. The suit property was owned by his grandfather and not by his father. The land that was owned by his father had already been shared out amongst his beneficiaries. The defendants have no legal interest in the suit property and are not entitled to any portion thereof. He produced as exhibits, a copy of a certificate of official search dated 15th January, 2007, a copy a letter dated 19th March, 1973 from the Department of Lands and a copy of a letter from the Chief dated 18th January, 2001.

9. The plaintiff’s witness was his brother, Francis Mugane(PW2). PW2 stated as follows in his evidence. The plaintiff is his brother while the 1st and 2nd defendants are his stepbrothers. The 7th defendant, Margaret Wairimu Njoroge is his stepmother. The suit property was given to the plaintiff by his grandfather, Kagua. His father was known as Njoroge. The plaintiff was given the suit property in 1964. He saw his grandfather who is deceased. His grandfather died around 1964/1965. The suit property did not belong to their father. Their father had his own parcel of land. It is on that parcel of land that they were staying. The suit property does not belong to the defendants. The defendants had not been born when his grandfather gave the plaintiff the suit property. He was born in 1960. His father gave him land at Njambini. His father died in 2013. The suit herein was filed when his father was still alive. When his grandfather gave the suit property to the plaintiff,it was not known that the defendants would be part theirfamily. His father was at all material times of sound mind. The land at Njambini was registered in the name of his father before the same was sub-divided and shared amongst them. His father could not have been registered as the owner of the said parcel of land at Njambini if he was of unsound mind.

10. The defendants’ first witness was Danson Kagua Hika(DW1). DW1 stated as follows in his evidence. Njoroge who was the plaintiff’s father was his uncle while Kagua was his grandfather. His father was known as Hika Kagua. His grandfather had land measuring 32 acres. During land adjudication, his grandfather gave each of his sons land measuring 8 acres. His grandfather had four sons. His father Hika Kagua was not alive when his grandfather’s land was being shared amongst his sons. The other sons of Kagua namely, Elijah Kagua, John Kimani Kagua and Elishavan Njoroge Kagua (Njoroge) were alive. His father’s share of Kagua’s land was given to him and was registered in his name to hold in trust for himself and his brothers. Elijah Kagua and John Kimani Kagua were given their respective shares of the said land. Njoroge was not at home at the material time. He had gone to Nyandarua to look for land. His share of Kagua’s land was registered in the name of his son, Benson Kagua Njoroge the plaintiff herein to hold in trust. The plaintiff and he were to hold the parcels of land that were registered in their names in trust for their respective families.The plaintiff’s father was staying in Nyandarua and developed mental illness.

11. The defendants’ last witness was James Ndumbi Heka (DW2). DW2 adopted his witness statement dated 14th October, 2015 as his evidence in chief. In his statement, DW2 described himself as a descendant of a brother to Kagua. He corroborated the evidence of DW1 that Kagua owned land measuring 32 acres. He stated that the parties to this suit have had along running dispute over the suit property and that several meetings have been held to try to resolve the same. He chaired one of such meetings which was held on 9th February, 2007. This was a meeting of Anjiru of Hika Clan which is the clan the family of Kagua belongs. He stated that at the said meeting it was resolved that the suit property belongs to the family of Njoroge and that the plaintiff was registered as the owner of the same to hold as a trustee. The meeting also resolved how the suit property was to be sub-divided amongst Njoroge’s two houses or families. He stated that Njoroge did not attend the meeting because he had a mental condition which made him not capable of comprehending issues. DW2 produced as exhibit a copy of the minutes of the said meeting of Anjiru of Hika Clan which was held on 9th February, 2007.

12. After the close of evidence, the court directed the parties to make their closing submissions in writing. The plaintiff filed his submissions on 1st December, 2016 while the defendants did not file submissions as had been ordered by the court.I have considered the plaintiff’s case as pleaded and the evidence that was tendered in proof thereof. I have also considered the defendants’ defence and counter-claim together with the evidence that was tendered by the defendants. Finally, I have considered the submissions on record.

13. The parties did not agree on the issues for determination by the court. From the pleadings, the evidence and submissions on record, I am of the view that the issues arising for determination in this suit are as follows:

i. Whether the plaintiff holds the suit property in trust for himself and the defendants?

ii. Whether the 1st and 2nd defendants trespassed on the suit property?

iii. Whether the plaintiff is entitled to the reliefs sought in the plaint?

iv. Whether the defendants are entitled to the reliefs sought in the counter-claim?

v. Who should bear the costs?

14. There is no dispute that the suit property is registered in the name of the plaintiff. According to the certificate of official search dated 15th January,2007 (P.Exh.1), the plaintiff was registered as the proprietor of the suit property on 15th January, 2007. In cross-examination, the plaintiff stated that he was first registered as the owner of the suit property in the year 1962. The plaintiff stated that his name was first entered in the register as Kagua Njoroge before he was baptized. After he was baptized and given the name, Benson, that name was added to his name in the register of the suit property. A certified copy of the register of the suit property which was put to the plaintiff during cross-examination shows that the suit property was first registered in the name of Kagua Njoroge on 2nd July, 1962(Seethe first document in thedefendant’s further list of documents filed in court on 15th October, 2015). The property was subsequently registered in the name of Benson Kagua Njoroge on 15th January, 2007. The plaintiff stated in evidence that Kagua Njoroge and Benson Kagua Njoroge are all his names.

15. It was common ground that the plaintiff was the first registered owner of the suit property.The suit property was registered under the Registered Land Act, Chapter 300 Laws of Kenya(now repealed). Although the plaintiff was registered as the proprietor of the suit property on first registration, his rights as a proprietor were subject to whatever duty or obligation he owed as a trustee in relation to the said property. See, the proviso to section 28 of the Registered Land Act, Chapter 300 Laws of Kenya (now repealed) and section 25 (2) of the Land Registration Act, 2012. See also the cases of Kanyi vs. Muthiora [1984] KLR 712 and Gatimu Kinguru vs. Muya Gathangi [1976] KLR 253.

16. The plaintiff’s complaint is that the 1st and 2nd defendants entered the suit property without his permission and started cultivating the same. The plaintiff has also accused the 1st and 2nd defendants of cutting down trees and burning charcoal on the suit property. At the trial, the 1st and 2nd defendants did not deny that they had entered the suit property and committed the acts complained of by the plaintiff. The defendants contended that the plaintiff holds the suit property in trust for himself and for them and as such they had equal right to use the property. Trespass is defined as any intrusion by a person on the land in the possession of another without any justifiable cause. See, Clerk & Lindsell on Torts, 18th Edition, page, 923, paragraph, 18-01. If the plaintiff holds the suit property in trust for the defendants, the defendants had a right to enter the suit property and as such they could not be trespassers on the property.

17. The law is now settled that the existence of a trust must be pleaded and proved. The onus was upon the defendants to prove trust which was the basis of their defence and counter-claim. In the case of Mwangi Mbothu & 9 others vs. Gachira Waitimu & 9 Others (1986) eKLR, the court stated that;

“The law never implies, the court never presumes a trust but in case of absolute necessity. The court will not imply a trust save in order to give effect to the intention of the parties. The intention of the parties to create trust must be clearly determined before a trust will be implied.”

The defendantspleaded in their amended statement of defence and counter-claim that the plaintiff holds the suit property in trust for himself and for the defendants.The defendants’claim over the suit property was based on customary trust. In paragraph 7 of the amended defence and counter-claim, the defendants mentioned Kikuyu Customary Practices as the basis of their claim.

18. In the case of Muthuita vs. Wanoe[1982] KLR 166 at pages 169 and 170,Potter J.A stated that:“In Gatimu Kinguru v. Muya Gathangi [1976] KLR 253 Madan J(as he then was) held that the absence of any reference to a trust in the instrument of acquisition of the land does not affect the enforceability of the trust as the provisions of section126(1) of the Registered Land Act as to the reference to the capacity as trustee in the instrument of the acquisition are not mandatory but merely permissive. That decision has been followed and in my respectful opinion it is correct.………..In the High Court the learned judge correctly directed himself as to the functions of a first appellate court and as to the relevant provisions of the Registered Land Act, and having carefully reviewed the evidence, found that the appellant was registered as proprietor of the suit premises as trustee for himself and the three plaintiffs. In my view there was amble evidence of the history of the suit land and of the relevant customary law onwhich the learned judge could find as he did. With respect I agree with the learned judge (emphasis added).”

19. It was common ground that the suit property was ancestral land before it was registered in the name of the plaintiff. Before the suit property was registered in the name of the plaintiff, the property was owned by the plaintiff’s and the defendants’ grandfather, Kagua. The plaintiff’s contention is that the suit property was given to him by Kagua as his grandson and not to hold as a trustee. The plaintiff has contended that when Kagua gave him the suit property, his father, Njoroge, was alive and they were only two sons in the family. The plaintiff has contended that if Kagua wished to give the property to his (the plaintiff’s) father, he could have done so. The plaintiff has contended that the defendants had not been born and it was not known that they would be part of Kagua’s family when the suit property was given to the plaintiff.The plaintiff has contended that his father recognized his right over the suit property during his life time and did not attempt to share the suit property amongst his children. The plaintiff has contended that his father was alive even as at the time this suit was filed.

20. On their part, the defendants have contended that Kagua had four sons who were all entitled to benefit from his land. The defendants led evidence that Kagua shared his land amongst all his sons. His two sons had their shares registered in their names, one of his sons who was deceased had his share registered in the name of his son as a trustee for the members of his family and the share that belonged to the plaintiff’s and the defendants’ father was registered in the name of the plaintiff to hold as a trustee for the members of his family. The defendants have contended that their father who is also the father of the plaintiff was residing in Nyandarua and that it was for that reason that his share of Kagua’s land was registered in the name of the plaintiff.

21. I am not satisfied that the defendants have established that the plaintiff holds the suit property in trust for himself and for them. It is not in dispute that when the suit property was given to the plaintiff by his grandfather, Kagua, the plaintiff’s father, Njoroge was alive. It is also not disputed that the defendants were not part of the family of either Kagua or Njoroge at the material time. No reasonable explanation has been given by the defendants why Kagua decided to register the suit property in the name of the plaintiff who was his grandson instead of Njoroge who was his son. DW1 stated that the reason why the suit property was registered in the name of the plaintiff was that Njoroge was residing in Nyandarua. DW2 on the other hand suggested that the property may have been registered in the name of the plaintiff because Njoroge was of unsound mind. The reason given by DW1 was not convincing. The mere fact that Njoroge was staying in Nyandarua could not have been the reason why Kagua decided to register the suit property in the name of the plaintiff who was about 4 years old at the material time and who was also staying with Njoroge in Nyandarua. The mental illness theory was also not supported by any evidence.

22. The plaintiff led uncontroverted evidence that Njoroge had land at Njambini in Nyandarua that was registered in his name. He also led evidence that the 7th defendant who is his stepmother and the mother of the other defendants was married by Njoroge in 1976. There is no way in which the Njambini land could have been registered in the name of Njoroge if he was of unsound mind. He could also not have married the 7th defendant. The defendants did not provide any evidence of Kikuyu Custom or Practice which permits one to give land to his underage grandson when the father is alive and of sound mind to hold as a trustee for the family. The court was also left wondering why Njoroge through whom the defendants have put forward their customary trust claim did not lay any claim to the suit property during his lifetime if at all the plaintiff was holding the land in trust for his family. It is also worth noting that when this suit was filed, Njoroge was alive. No explanation has been given why the defendants did not join him in the suit.

23. From the totality of the evidence before me, it is my finding that Kagua gave the plaintiff the suit property as his grandson and not as a trustee to hold on his own behalf and on behalf of the defendants who were not yet members of his family. It is also my finding that the defendants have no beneficial interest in the suit property. Their entry onto the suit property without the plaintiff’s permission was therefore an act of trespass.

24. For the foregoing reasons, I am satisfied that the plaintiff has proved his case against the defendants on a balance of probabilities. The defendants’ counter-claim on the other hand is not proved. The plaintiff is entitled to the permanent injunction and general damages for trespass sought in the plaint. The plaintiff did not however lead evidence which could assist the court in assessing the general damages payable. I therefore enter judgment for the plaintiff in terms of prayer (a) in the plaint dated 14th March, 2007. The plaintiff’s claim for general damages is declined. The defendant’s counter-claim is dismissed. Since the parties are members of the same family, each shall bear its own costs of the suit and the counter-claim.

Delivered and Signed at Nairobi this 3rd dayof November 2017.

S. OKONG’O

JUDGE

Judgment read in open court in the presence of:-

No appearance for the plaintiff

No appearance for the defendants

Kajuju Court Assistant