[2011] KEHC 2854 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

LAND AND ENVIRONMENTAL LAW DIVISION

CIVIL SUIT NO. 5304 OF 1992

EKILA NDUTA NGANGA........................................................................................................................1ST PLAINTIFF

PATRICIAH WANJA GUGU..................................................................................................................2ND PLAINTIFF

MARY NYAMBURA KAIRU...................................................................................................................3RD PLAINTIFF

VERSUS

MUHOHO NGUKU..............................................................................................................................1ST DEFENDANT

RUTH NYANGARIKA THUO (Sued as the administratorand/or personal representative of

JOSEPH THUO KOIBUTHA (Deceased)......................................................................................2ND DEFENDANT

J U D G M E N T

1. Ekila Nduta Nganga, Patriciah Wanja Gugu and Mary Nyambura Kairu (hereinafter referred to as 1st, 2nd and 3rd defendants respectively), are sisters. They are all daughters of Margaret Wanjiru Gugu, who is now deceased. The plaintiffs have brought this suit against their only brother Muhoho Nguku and Ruth Nyangarika Thuo who was substituted as the administrator and or personal representative of Joseph Thuo Koibutha – deceased.

2. The suit relates to land parcel No.Chania/Mataara/439 which was registered in the name of Margaret Wanjiru Gugu, the plaintiffs’ mother. The plaintiffs contended that the 1st defendant has illegally subdivided the suit property into two parcels Chania/Mataara/1659 and Chania/Mataara/1660 pursuant to an order of declaration of trust made by a magistrate’s court without jurisdiction. The 1st defendant retained land parcel Chania/Mataara/1659 and sold Chania/Mataara/1660 to the 2nd defendant. The plaintiffs maintain that they are the rightful heirs in respect to Chania/Mataara/439 as their mother left a will bequeathing the land to the 3 plaintiffs and excluding the 1st defendant.

3. The plaintiffs therefore prayed for a declaration of trust against the defendant in the plaintiffs’ favour in respect of land parcel No.Chania/Mataara/439 and also an order rescinding the sub-divisions. The plaintiffs also sought a permanent injunction to issue restraining the defendants from selling, offering for s ale, disposing, mortgaging, charging or parting with the title to the suit property.

4. The 1st defendant, although duly served neither entered appearance nor filed a defence. The 2nd defendant filed a statement of defence in which she denied being a personal representative or administrator of the Estate of the late Joseph Thuo Koibutha The 2nd defendant further denied that sub-divisions Chania/Mataara/1659 and 1660 were illegally done or that the Magistrate’s Court lacked jurisdiction. She contended that the plaintiff’s suit was fatally defective and raised no cause of action against the 2nd defendant as the disputed parcel of land does not belong to the late Joseph Thuo Koibutha. The 2nd defendant denied that the plaintiffs were entitled to inherit Chania/Mataara/1660 or that they were entitled to a declaration of trust in their favour. The 2nd defendant maintained that she was wrongly enjoined in the suit.

5. During the hearing of the plaintiffs’ case, the 3 plaintiffs and one Pauline Njeri who is also their sister all testified. Briefly their evidence was as follows: Land parcel No.Chania/Mataara/439 belonged to their paternal grandfather. He transferred the land to the plaintiffs’ father Gugu Muchiri. Later Gugu Muchiri transferred the land to the plaintiffs’ mother as Gugu Muchiri was sick. Gugu Muchiri decided to transfer the land to his wife rather than 1st defendant who was his son because he feared the 1st defendant would sell the land. The1st defendant later sued the plaintiffs’ mother at Thika Court and the court ordered that the land should be given to the 1st defendant. Shortly thereafter the plaintiffs’ mother died. That was in the year 1982. The 1st defendant then had the land subdivided into two parcels i.e. Chania/Mataara/1659 & 1660.

6. The 1st plaintiff who by this time was the only person residing on the land ran away when she saw surveyors in the company of police officers. Subsequently, her house which was on the land was demolished. The plaintiffs filed a succession cause in respect of their mother’s estate.However, the 1st defendant and the 2nd defendant’s husband to whom 1st defendant had transferred Channia/Mataara/1660 objected and the succession cause is still pending. The 1st defendant subsequently sold Chania/Mataara/1650 to one Kungu Kirira. The plaintiffs maintained that the sub-divisions were done illegally and that the original land ought to have been distributed in accordance with their mother’s will.

7. Two witnesses testified in support of the defence of 2nd defendant. These were the 2nd defendant and her brother Francis Maina Ndirangu. Their evidence was briefly as follows: The 2nd defendant’s husband bought Chania/Mataara/1660 from the 1st defendant. The land was charged to Family Finance Bank. The 2nd defendant’s husband was however unable to service the loan. The Bank therefore put up the property for sale. The 2nd defendant sought help from her family. One of her brothers Francis Maina Ndirangu (DW1) attended the auction sale and bid for the property and was declared the highest bidder at Kshs.420,000/=. He paid 20% of the purchase price and was given 30 days to pay the balance. He later paid the balance through his advocate and was given the memorandum of sale. Three months later the 2nd defendant’s husband died. Francis Maina Ndirangu therefore instructed the advocate to have the land transferred to the name of 2nd defendant. Thereafter the 2nd defendant obtained the Land Control Board Consent for the transfer.

8. Each party’s counsel filed written submissions urging the court to find in favour of his client. For the plaintiffs it was submitted that there was contradiction and inconsistencies between the evidence of the two defence witnesses. It was submitted that there was in fact no auction sale. It was argued that there was a conspiracy between the 1st defendant and the 2nd defendant to disinherit the plaintiffs. It was submitted that 2nd defendant’s husband knew and was an active participant of the fraudulent subdivision and transfer and was also a beneficiary of the fraudulent acts.

9. The court was urged to apply the nemo dat quod non habet principal. It was contended that there was no dispute that 1st defendant unlawfully and illegally acquired title to Chania/Mataara/439 and subdivided it. It was maintained that since the 1st defendant did not have a clean title to the land all subsequent owners and or charges could not have a better title than the one 1st defendant had. It was therefore submitted that the 2nd defendant holds an invalid title on the illegality and fraud by the 1st defendant. It was argued that 2nd defendant did not take the suit property in good faith and for value without notice. It was therefore maintained that the defendants hold their titles in trust for the plaintiffs.

10. For the 2nd defendant, it was submitted that the plaintiff was bound by its pleadings in particular paragraph 6 & 7 where she averred, that the original title Chania/Mataara/439 was after the death of Margaret Wanjiru Gugu subdivided and that the subdivision was done pursuant to an order of the court. It was maintained that the plaintiffs did not prove that the court which issued the order of subdivision did not have jurisdiction.

11. Further in paragraph 9 of the amended plaint, it was alleged that the right to inherit the sold property was pursuant to the terms of the will being proved in the High Court. It was submitted that the plaintiffs’ suit was an abuse of the court process as issues of succession should be dealt with in the succession cause. It was submitted that no trust was established nor was Kungu Kirira made a party to the proceedings. It was submitted that the process of sale and subsequent registration in favour of Ruth Nyangarika could not be challenged through the current suit. The court was urged to dismiss the plaintiffs’ suit.

12. I have carefully considered the pleadings, the evidence adduced, the submissions and the authorities cited. It is evident that land parcel Chania/Mataara/439 was actually registered in the name of Margaret Wanjiru Gugu. It is also clear that, that parcel of land was subdivided into two parcels Chania/Mataara/1659 and 1660, and that the subdivision was done by 1st defendant following an order in a suit which he had filed against Margaret Wanjiru Gugu in the Thika Court. Although the plaintiffs disputed the legality of the court order maintaining that the court did not have jurisdiction to declare a trust, neither the order nor copies of the proceedings or judgment were availed to the court. Moreover, the plaintiffs have not in any way substantiated their allegation that the Thika Court acted without jurisdiction. Moreover, even assuming that the court did act without jurisdiction, the court order could only be challenged through the appropriate channel. There is no evidence of any such attempt. Thus, the plaintiffs failed to prove that the 1st defendant illegally subdivided Chania/Mataara/439.

13. Secondly, the plaintiffs claimed that Chania/Mataara/439 belonged to their mother, and that they were claiming the property as beneficiaries of their mother’s will. Therefore, it was imperative that the plaintiffs establish that the property formed part of their mother’s estate and that they were the lawful beneficiaries. This could only be done through a succession cause. The plaintiffs’ evidence was that although a succession cause was filed, the same has not been resolved as the 1st defendant filed an objection. Therefore, the question as to whether the property forms part of the estate of plaintiffs’ mother has not been resolved.

14. Further although the plaintiffs testified that one of the subdivisions Chania/Mataara/1659 is now registered in the name of Kungu Kirira to whom 1st defendant sold the land, Kungu Kirira was not made a party to the suit. The court cannot therefore make orders which are prejudicial to Kungu Kirira without his being heard.

15. As regards the issue of “nemo dat quod non habet”, the same could only arise if it was established that 1st defendant did not have a proper title to the suit property. This, the plaintiffs failed to prove. To the contrary plaintiffs’ pleadings and evidence was that the subdivision was done pursuant to a court order.

16. For all the aforestated reasons, I find that the plaintiffs have failed to prove their claim. Their suit must therefore fail. It is accordingly dismissed. In the circumstances of this case, I do not find it appropriate to award any costs.

Those shall be the orders of this court.

Dated and delivered this 18th day of February, 2011

H. M. OKWENGU

JUDGE

In the presence of: -

Nyoro H/B for Chege for the plaintiffs

Gatimu for the 2nd defendant

Kosgei - Court clerk