[2022] KEELC 294 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT EMBU

E.L.C A CASE NO. 8 OF 2019

DIONISIO NGUNGI NGUYU...........................................................................APPELLANT

VERSUS

GERALD MUTINI NJERU.............................................................................RESPONDENT

JUDGEMENT

INTRODUCTION

1. The appeal is a contestation of the outcome of the lower court’s suit (Hon. M.K Gicheru, CM, Embu) in Embu ELC Case No. 62 of 2018. The appellant – DIONISIO NGUNGI NGUYU – was the plaintiff in the suit while the respondent – GERALD MUTINI NJERU–was the defendant.

THE LOWER COURT MATTER

2. In the lower court, the appellant had sued the respondent on claims that he was the registered owner of Land Reference Number Mbeere/ Kirima/ 3609, 3587 and 3588 situate within Embu County and having indefeasible titles which have never been vitiated by any person or authority. That he has been desirous of utilizing his land parcels but is prevented from doing so by the invasion and presence of the respondent.

3. The appellant had sought for orders that the trial court be pleased to issue a mandatory order against the respondent, his agents, family members, successors in title, assigns or anybody else acting on his behalf or at his behest to remove any structures build or made in the process of trespassing on the appellant’s Land Reference Number Mbeere/ Kirima/ 3609, 3587 and 3588; a mandatory order against the defendant (respondent herein) his agents, family members, successors in title, assigns or anybody else howsoever acting on his behalf or at his behest, currently illegally occupying the appellant’s land to immediately vacate that Land Reference Number Mbeere/ Kirima/ 3609, 3587 and 3588; a declaration that the defendant (respondent herein) invasion of the appellant’s Land Reference Number Mbeere/ Kirima/ 3609, 3587 and 3588 is unlawful and that the same constitutes illegal trespass and therefore the damages ought to accrue to the appellant (plaintiff); that the Assistant County Commissioner Mbeere South Sub-County and the OCS Kiritiri do enforce the court order and ensure that peace prevails; and the costs of the suit be awarded to the appellant.

4. The respondent filed his defence wherein he basically denied the averments in the plaint. He averred that he was born and settled on the suit land and knows no other place to call home. That he belongs to one of the clans which were entitled to own and or become beneficiaries of Land Reference Number Mbeere/ Kirima/ 2224 and as such he was entitled to part of the said land parcel by virtue of being a grand and great grand-child of their ancestors. That the suit lands (Land Reference Number Mbeere/ Kirima/ 3609, 3587 and 3588) formed part of the said LR 2244 of which portion, the respondent together with their ancestors had possession, use and occupation and which portion of land parcel had been subject of numerous court litigation some of which are still pending.

5. It was averred that in the year 2010, while the respondents were still in actual possession of the suit property and before regularization of the title documents in their favour, some unknown persons fraudulently, wrongfully and unlawfully caused Land Reference Number Mbeere/ Kirima/ 2224 to be sub-divided into several parcels and they subsequently had them registered in their names. It is argued that the respondent’s land parcel in particular was fraudulently, illegally and unlawfully so registered without their knowledge and transferred to the appellant. It was contended that the appellant was unknown to the respondent or his family and that the transfer was fraudulent, illegal, null and void ab-initio. The particulars of fraud were pleaded in the said defence and it was further averred that the appellant herein had perpetuated the said fraud with the help of officials at the Land’s Ministry in Siakago. As a result of the said fraud, the appellant did not acquire any exclusive right either in possession or occupation of the suit property. The respondent prayed that the suit be dismissed.

6. The matter proceeded to trial and the court record indicates that Mr. Guantai, appearing for the appellant herein, informed the court that he had filed comprehensive witness statements and documents and had decided to adopt them as his evidence. Ms. Njeru for the respondent also adopted the statements and documents filed by the respondent. The court then proceeded to accept the evidence and wrote a judgment. In it’s judgment the court felt it was called upon to determine four issues which were:

i) The owner of the suit parcels of land, to which the court determined that the appellant was the registered owner of suit parcel Mbeere/Kirima/3609 but with regard to the other two parcels it was found that they were registered in the names of persons not parties to the suit. Further that the land occupied by the respondent was 4 acres while that owned by the appellant was 0. 4 hectares.

ii) On the second issue, which was who occupied the land, the court held that the land was occupied by the respondent and that the appellant had not denied it.

iii) The third and fourth issues were whether the appellant’s ownership was absolute or subject to overriding interest and whether appellant had proven that the respondent does not enjoy any overriding interest contemplated under Section 28 of the Land Registration Act respectively. The court found that the appellants ownership was not absolute as it was subject to overriding interest recognized under Section 28 of the Land Registration act.

7. The court, with regard to the issues, had argued that the appellant had an obligation to state he was allocated land occupied by the respondent. It also posed questions regarding the registration number of the land and it’s size, among others. The court was of the view that the appellant had failed to address these questions. The court further observed that the burden of proving that the appellant is the owner of the land, which the respondent was in possession of, was on him. It was stated that the appellant had failed to prove this in view of section 116 of the Evidence Act. His suit was dismissed with costs to the respondent.

THE APPEAL

8. Being dissatisfied with the said judgment, the appellant herein filed the instant appeal, which was instituted by way of the memorandum of appeal dated 3. 04. 2019 and filed in court on the same date. The appellant raised twelve (12) grounds of appeal, which are as follows;-

i) That the Honourable trial magistrate erred in law and fact in dismissing the Appellants case despite the overwhelming evidence presented by the Appellant in support of his case.

ii) That the Honourable trial magistrate erred in law and fact in dismissing the Appellant’s suit while evidently not having considered any of the elements or merits of the Appellant’s case.

iii) That the Honourable trial magistrate erred in law and fact and grossly misdirected himself in finding and holding that the Appellant’s titles were subject to overriding interests in favour of the Appellant, which interests are unknown and unproven in law and fact.

iv) That the Honourable trial magistrate grossly misdirected himself in finding and holding that the Appellants titles were subject to the overriding interests of the Respondent while no such overriding interests had been stated by the Respondent, proven or claimed by way of defence and Counter-claim or in any other way.

v) That the Honourable learned magistrate grossly misdirected himself by misrepresenting or interpreting the provisions of Section 28(h) of the Land Registration Act as relates to this case.

vi) That the Honourable trial magistrate greatly erred in law and fact in shifting the burden of proof as to any overriding interests the Respondent or any other person might claim to the suit land while the onus of proving such interests lay squarely on the Respondent.

vii) That the Honourable trial magistrate erred in law and fact in failing to appreciate the complexities, controversies and intrigues surrounding what is commonly known as Mbeere Trust Land, as were elaborated by the Plaintiff in his Plaint and witness statements and appropriately caution himself over the same before rendering his judgment.

viii) That the Honourable trial magistrate erred in law and fact in extending and expanding the burden of proof placed upon the Appellant and requiring him to prove matters and facts that were beyond his scope of knowledge.

ix) That the Honourable trial magistrate erred in law and fact to consider any of the documentary evidence tendered by the plaintiff in support of his case and most specifically the Mavuria Location Chief’s letter dated 17th April 2018, which letter clearly stipulated the Respondent’s promise to vacate the Appellant-’s land and which letter was not in any way impunged or challenged.

x) That the Honourable trial magistrate erred in law and fact in alleging that Counsel for the parties failed to file any submissions while it was the court’s own directive that it would render a judgment after considering the documents and statements on record without any need for submissions.

xi) That the Honourable trial magistrate erred in law and fact in finding that it was the Respondent in occupation of the whole of the suit land while it had been specifically proven and shown that the Respondent was only in occupation of a small portion of the suit land and which fact had not in any way been challenged.

xii) That the Honourable trial magistrate erred in law and fact in essentially shifting the burden of proof placed upon the Appellant from one of a balance of probabilities to that of beyond all reasonable doubt, and in clear disregard of evidence tendered by the Appellant showing that the Respondent had admitted to being in trespass of the suit land, his promise to vacate the suit land and the fact that the Appellant had reneged on this promise to vacate the suit land.

Reasons whereof the Appellant prays that:

1. This Appeal be allowed.

2. The entire judgment and orders of the Honourable Court in MELC No. 62 of 2018 be set aside entirely.

3. Judgment be entered in favour of the Appelant.

4. The costs of this Appeal be accorded to the Appellant.

9. The appeal was canvassed by way of written submissions. The appellant filed his submissions on 25. 1.2022 and dated 24. 1.2022. In the submissions the appellant, in support of the appeal, gave a brief background of the case before the trial court and submitted that the trial court erred in finding that the appellant's titles were subject to overriding interests whereas none was proven or claimed by way of defence or counter claim. It was submitted that such interests must be proven with evidence though need not to be noted in the register. Reliance was placed on the case of Prisila Jesondin Chumo vs Nelly Jebor (2018) eKLR.

10. Further it was submitted that the respondent in his statement of defence stated to have taken possession of the suit land from his parents but he did not claim adverse possession and that mere possession is not proof of adverse possession or any other overriding interests in land. Reliance was placed on the case of Gabriel Mbui vs Mukindia Maranya (1993) eKLR. It was submitted further that the fact that the respondent took possession of the suit properties from his father is also not proof of overriding interests and reliance in this respect was placed on the case of Situma Vs Cherono Civil Appeal No. 351 of 2002.

11. Further it was stated that if indeed there was any adverse possession or overriding interests, the same ought to arise from the time the appellant was issued with the title to 3609 (in 2010) and when he bought parcels of land 3577 and 3588. Reliance in this respect was placed on the case of Peter Gichuki Wanjohi Vs Julia Mumbi Muturi (2017) eKLR. The appellant further submitted that the trial court erred in failing to appreciate the complexities, controversies and intrigues surrounding Mbeere Trust Land as was explained by the appellant in his statement and despite the witness statements by the appellant having given detailed history of the suit lands.

12. It was his contention that the trial court erred in finding that it was the respondent who was in occupation of the whole of the suit land yet the evidence was to the effect that the respondent was in occupation of a small portion of the same. The appellant as such prayed that the appeal be allowed as it has merits.

13. The respondent equally filed submissions which were dated 9. 2.2022 and filed on even date. In opposing the appeal it was submitted that the appellant did not prove that he was the registered proprietor of the suit properties to wit LR No. Mbeere/ Kirima/ 3609, 3587 and 3588. That the original title for 3609 was never produced save for a copy of the same. Further that there was no evidence that 3587 and 3588 was registered in his names as the list produced by the appellant and further the search certificates produced by the respondent indicates that the said properties were registered in the names of third parties who were not parties to the suit. Reliance was placed on sections 24 and 26 of the Land Registration Act 2012.

14. It was further submitted that the trial court was right in holding that the suit properties were subject to an overriding interests in favour of the respondent and the same being customary trust. Reliance was made on section 28 of the Land Registration Act 2012 and the case of Isack M’Inanga Kieba –vs- Isaaya Theuri M’Lintari & Another.The respondents prayed that the appeal be dismissed with costs.

ANALYSIS AND DETERMINATION

15. I have considered the appeal as filed, the lower court record, and the submissions by both the appellant and the respondent. I am also mindful of my duty as a first appellate court. However I do not wish to determine the appeal on it’s merit. I wish to first consider the manner in which the trial before the lower court was conducted. In my view, the interests of justice were not properly served.

16. In the trial court the appellant had sought among other orders, mandatory orders for removal of structures on suit parcels Mbeere/Kirima/3609, 3587, 3588, eviction of the respondent from the suit parcels of land and declaration that the respondent’s invasion was unlawful and amounted to trespass. He averred that he was the registered owner of suit parcel Mbeere/Kirima/3609 and he claimed a purchaser’s interest on suit parcel Mbeere/Kirima/3587, 3588. The respondent’s case is that he is rightfully in possession of the suit parcel of land and that the appellant’s registration of the land was fraudulent. He actually listed the particulars of fraud and illegality against the appellant. The respondent has traced the genesis of his occupation to land parcel Mbeere/Kirima/2244 which he said was the original parcel of land from which the three disputed parcels herein arose.

17. Both parties had consented to adopt their witness statements and documents as evidence in their respective cases and the court delivered it’s judgment. Though the parties had consented to the mode of conducting the trial, having now perused the judgment and appeal before me, I am of the considered view that this method of tendering evidence and/ or conducting trial was not the best approach. It was too casual and lacked the depth and thoroughness that normally relates to a proper trial.

18. It appears to me that the lower court made a lot of presumptions in it’s handling of issues, which issues could have been better addressed if the parties had tendered viva-voce evidence before it. In the judgment, the court had sought to determine issues of ownership, occupation, and whether the titles were subject to an overriding interest. I find such issues to be weighty and required the parties to testify and the court and both learned counsel on each side to interrogate and confirm the veracity of the documents and their relevance to the case. The procedural approach taken in my view compromised merit-based justice.

19. There are quite a number of issues which have informed my questioning of the mode of trial. I will state only but a few. The first is on ownership of the three parcels of land to which the court held that the appellant had only proven ownership of land parcel Mbeere/Kirima/3609. Regarding ownership of the other parcels, the court states that they are registered in the names of other persons. I note the appellant was seeking recognition of purchaser’s interest in the said remaining two parcels and no reference or comment was made on this. I have come across agreements produced by the appellant and witness statements by an alleged seller. All these are documents that cannot just be relied on by adoption but would require interrogation by way of cross examination. The respondent on his part has equally challenged the ownership and produced his own set of documents which he sought to rely on and this evidence vis a vis that produced by the appellant can only be reconciled by way of a hearing and interrogation of the evidence. Further, none of the documents or statements has been referred to in the judgment by the trial court.

20. Additionally, the court in it’s judgment also raised a number of questions which it was of the view that the appellant required to answer in order to demonstrate his case. I have looked at the questions raised therein and these too could not have been well articulated and addressed by adoption of documents as evidence. They required to be subjected to the rigorous scrutiny and interrogation that usually accompanies a proper trial.

21. Order 18 of the Civil Procedure Rules (2010), Cap 21 Laws of Kenya provides the procedure for hearing of suits and examination of witnesses. Order 18 Rules 1 and 2 provides as follows: -

1. The plaintiff shall have the right to begin unless the court otherwise orders.

2. Unless the court otherwise orders—

(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.

(2) The other party shall then state his case and produce his evidence, and may then address the court generally on the case. The party beginning may then reply.

(3) After the party beginning has produced his evidence then, if the other party has not produced and announces that he does not propose to produce evidence, the party beginning shall have the right to address the court generally on the case; the other party shall then have the right to address the court in reply, but if in the course of his address he cites a case or cases the party beginning shall have the right to address the court at the conclusion of the address of the other party for the purpose of observing on the case or cases cited.

22. From the provisions of Order 18 of the Civil Procedure rules it is clear as to how trial of a case should be conducted and the manner of recording of evidence. This however does not mean that parties can not adopt their statements and evidence and seek to rely on them. Nonetheless, I find a lot of shortcomings on the later approach, which in my view should be adopted in the simplest of cases. Parties are of course at liberty to rely on either approach. However, when a suit is as contentious as this one, then the nature and circumstances of the case require a court to conduct a hearing, rely on sworn statements and have the evidence produced interrogated during hearing in order to determine its credibility, cogency, and/or veracity.

23. The court of appeal, in the case of Kenneth Nyaga Mwige vs Austin Kiguta and 2 others [2015] eKLR, stated as follows regarding production of documents.

“… The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the documents are filed, the documents though on the court file does not become part of the judicial record.

Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document.

Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the reference and veracity of the contents. This is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the documents when called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone, but would take into consideration all facts and evidence on record.

The Court of Appeal further stated: -

Once a document has been marked for identification it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for is authenticity and relevance to the facts of the case. Once the foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit; it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an authenticated account.

24. I agree with the determination in the above case and need not add any other material to it.

25. I wish to also take issue with the conduct of both learned counsel in this matter because of opting to take shortcuts to dispose of the suit. This suit, like I said, is not one where such shortcuts are to apply. Counsel should strive to represent their clients in court using the best approach possible to ensure a proper representation is made that will aid the court in making a proper determination. It is unfortunate that this was not done.

26. I reiterate that the parties in the suit did not get an opportunity to challenge the statements or documents produced by either of them by way of cross examination. This was a grave error. In my view the purpose of conducting a hearing and cross examination is to aid the court in establishing the relevance of evidence placed before it. This was not done here. Though this court has the power and capability to determine the appeal before it, proceeding to determine this appeal considering the manner in which the trial was conducted will be a great injustice to the parties.

27. I hereby remit the matter to the trial court for hearing and determination on priority basis. In the circumstances I make no orders as to costs.

JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 24TH DAY OF MARCH, 2022.

In the presence of M/s Muriuki for Wambua for respondent and M/s Muriuki for Guantai for appellant.

Court Assistant: Leadys

A.K. KANIARU

JUDGE

24. 03. 2022