[2020] KEELC 248 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC NO. 34 OF 1998

EUNICE MUGURE MUCHORI...........................................................1ST PLAINTIFF

IBRAHIM BAIYA MUCHORI.............................................................2ND PLAINTIFF

JIM B. MUCHORI.................................................................................3RD PLAINTIFF

VERSUS

PETER MACHARIA..................................................................................DEFENDANT

JUDGMENT

1. The plaintiffs filed a plaint dated 8/4/1998 which they subsequently amended. On 31/5/2010 they filed a further amended plaint on the same date. In that further amended plaint they seek the following orders against the defendant:-

(a) A declaration that the registration of parcels No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/169, 744, 743 and 742 was void ab initio for being in contravention of a subsisting court order and the same should be quashed.

(b) An order be made rectifying the register, so that the names of the 2nd, 3rd and 5th defendants be deleted and the names of the plaintiffs substituted in their place.

(c) Costs.

(d) Any other relief that this court may deem fit to grant.

The Plaint

2. The descriptions in the plaint which are not denied in the defence, are as follows: the plaintiffs state that they are the administrators of the late John Muchori Baiya who died in 1996; the 3rd plaintiff is the administrator of the estate of the late Ruth Njeri Muchori; the 1st defendant is the administrator of the estates of the late Kariuki Macharia Esther Waithira alias Esther Wambui Kariuki, Lucy Wangari Kariuki Frida Wanjiku and Naomi Wanjiru Kariuki.

3. The facts are that whilst John Muchori Baiya and Kariuki Macharia were alive the Saboti Land Disputes Tribunal determined the land dispute between them in favour of Kariuki Macharia which award gave him 9 acres and was adopted as a judgment of the court in Kitale PMC Land Case No. 4 of 1994.

4. However vide Kitale HC Misc. Appl. 150 of 1997 the said award was quashed. There was a stay order, staying the tribunal decision pending the determination of the certiorari application but the existence of that order notwithstanding the 1st defendant had the land registered in the names of the late Kariuki Macharia, Esther Waithira Alias Esther Wambui Kariuki, Lucy Wangari Kariuki Frida Wanjiku and Naomi Wanjiru Kariuki. The plaintiff pleads that that registration was void ab initioand should be cancelled to pave the way for rectification of the register so that the plaintiffs may be registered as proprietors.

The Defence

5. In a defence dated 26/5/1998 the defendants admitted the contents of paragraphs 5, 6and7 of the original plaint to the effect that the plaintiffs are the administrators of the estate of the late John Muchori Baiya; that the Saboti Land Disputes Tribunal heard and determined a land dispute in favour of Kariuki Macharia awarding him 9 acres of land in Wamuini Farm which award was adopted in Kitale PMC Land Case No. 4 of 1994. They denied paragraphs 8, 9, 10, 11and12.

6. In an amended defence of 20/2/2001 the defendants specifically denied the suit land ever belonged to John Muchori Baiya who they alleged to have forcefully and illegally entered the land; that the subdivision of the land was done pursuant to resolutions of an annual general meeting of Wamuini Farm and thereafter the beneficiaries of the late Kariuki Macharia’s estate obtained titles to their shares and that that subdivision was not in any manner connected to the land disputes tribunal award; the defendants maintained that the titles the defendants hold are valid. They counterclaimed for a declaration that they are the bona fide proprietors of Kiminini/Kapkoi/Wamuini ‘B’/169, 744, 743and742 and that the plaintiff’s occupation and use of the said parcel is unlawful and they should be evicted forcefully if they do not vacate. They also sought mesne profits and costs.

7. The reply to defence filed by plaintiffs on 23/11/2004 denied the contents of defence and counterclaim.

8. On 8/7/2019 this matter came up for mention to fix a hearing date and it was allocated for 14/10/2019. On 14/10/2019 the defendant was absent though served. The matter never proceeded then. The matter was adjourned to 25/11/2019. On 25/11/2019 Mr. Teti held brief for Mr. Okoth for the defendant. Owing to Mr. Okoth’s absence the court rescheduled the hearing for 26/11/2019. On 26/11/2019,Mr. Kiarie appeared for the plaintiffs and Mr. Wanyama holding brief for Mr. Okoth for the defendant. Mr. Wanyama prayed for adjournment which application was opposed by Mr. Kiarie. The court declined to adjourn the hearing ordered the hearing to proceed at 10. 56 a.m. after the taking of the evidence of the plaintiff, Mr. Wanyama applied for an adjournment for the second time and naturally, Mr. Kiarie opposed the application. The court declined to grant an adjournment as sought and ordered the hearing to proceed. To facilitate this, the file was placed aside till the afternoon session. The file was called out later in the afternoon and the defendant was absent and Mr. Wanyama indicated again that he did not have his witnesses In its ruling the court noted that the suit was filed in 1998, that is, about 21 years ago, that it had earlier issued a notice to parties that matters filed before 2013 required to be finalised urgently to pave the way for the hearing of the newer suits, that the defendant’s counsel had been aware of the hearing date all along and that no good reason had been advanced for the adjournment sought. The court declined the adjournment and ordered the defence case to proceed.

The Plaintiffs’ Evidence

9. PW1, Collins Kipruto, a Court Staff in the ELC Registry produced the original file record for Kitale Misc. Civil Appl. No. 51 of 1997betweenPatrick Nyoko Muchori and 2 Others -vs- Saboti Land Disputes Tribunal & Another.The same had been filed as Eldoret Misc. No. 150 of 1997but was later transferred to Kitale and issued the new number above.

10. PW2, Eunice Mugure Muchoritestified and adopted her statement dated 7/6/2019 as her evidence-in-chief. She stated that John Muchori Baiya was her late husband; he died in 1996; Ibrahim Baiya, 2nd defendant and John B. Muchori are her sons, however from her father’s evidence Ibrahim turned out to be a son to her elder co-wife. She produced a grant of letters of administration to her late husband’s estate P. Exhibit 2 showing the three plaintiffs as well as one Ruth Njeri Muchori were made administrators on 2/9/1996. She also produced a certificate of confirmation of that grant dated 19/4/2000 as P. Exhibit 3. According to her, her late husband had land in Wamuini ‘A’ Company and he was also one of the directors. The land that he had which did not have any dispute was 39 acres; he also bought 3 moreacres in 1998 from his brother Stephen Kamau which 3 acres were adjacent to the 39 acres. Dr. John another brother to her late husband sold her husband 4. 5 acres. Lastly he also bought 1. 5 acres from one Muchai Kabira making the total of the newly purchased to be 9 acres. The family took possession of the land and utilized the same. However a land dispute arose between the deceased and Kariuki Macharia and upon being taken to the Land Disputes Tribunal by PW2’s husband the elders awarded all the 9 acres to Kariuki Macharia. That decision was adopted in Kitale PMCC No. 84 of 1995 and Kariuki was declared the owner that was on 20/6/1995. However on 7/7/1995 PW2’s husband lodged a case at Eldoret being Eldoret Misc. No. 347 of 1995. A stay of execution was granted by the Eldoret Court; a ruling was issued on 19/5/1997 striking out the application and granting the applicant leave to file a fresh application. Her husband subsequently filed Eldoret Misc. No. 150 of 1997which was transferred to Kitale and renamed Kitale HC Misc. No. 51 of 1997 whose original file record was produced by PW1 as P. Exhibit 1. The decision in that application was that the elders’ award was quashed while the plaintiffs’ family was still in possession of the land; they aver that they are still in occupation of the land to date. While the judicial review application was ongoing, Kariuki Macharia went against the stay orders and obtained title to the suit land in his name on 19/11/1997. She produced the official search certificates for plots Nos. 169, 742, 743and744 showing that the registers thereof were opened on 18/11/1997 while the judicial review notice of motion was still pending. She prayed that the title deeds for those plots be cancelled and the land do revert back to the estate of her late husband.

11. PW3, Stephen Kamau Kairu testified on the same date and he adopted his statement filed in court on 10/6/2019 as his evidence-in-chief in this matter.PW3 stated that he is the younger brother to John Muchori; that he had a share in Wamuini Farm which entitled him to 3 acres of land which he used until 1978 and when he was transferred to Naivasha while working as a prison warder, he sold the land to John Muchori for Kshs.30,000/=. The land was adjacent to John’s land. According to PW3, his brother Augustine Muchori and one Kabira sold 4. 5 acresand1. 5 acres respectively to John Muchori Baiya whereupon John took possession of all these parcels. He produced a receipt No. 902 dated 11/3/1975 for Kshs.4,040/= being payment for a share issued by Wamuini Farmers Company Ltd as P. Exhibit 8. The plaintiffs then closed their case.

12. Owing to the events narrated earlier in this judgment, the court then deemed the defendant’s case closed and ordered the parties to file submissions. However the suit was later on reopened by way of a ruling delivered on 30/6/2020 for the purpose of the hearing of the defence case.

13. The defence case proceeded on 30/7/2020 when DW1, the defendant Peter Macharia Kariuki testified.

14. DW1 stated that he is the administrator to the estate of the late Kariuki Macharia and adopted a replying affidavit in the record dated and filed on 17/11/1999 as his evidence in the suit. Upon cross-examination he stated that his father died in 1995; that he had a land dispute with John Muchori Baiya; that the case was heard in 1994 by tribunal. He stated that his father had bought shares in Wamuini Farm and admitted that his father did not have possession of the 9 acres by the time the committee finalised its work. He testified further that the Land disputes Tribunal award granting his father the suit land, was adopted in a 1994 case at Kitale; however the same was subsequently challenged in Eldoret JR. No. 150 of 1997; he denied knowledge of any order made in the judicial review proceedings that the leave granted in those proceedings would operate as a stay; he admitted that the judicial review case was transferred to Kitale from Eldoret in 1997 and that the tribunal award was subsequently quashed by the court; he stated that in 1997 titles were issued in respect of the land comprising the 9 acres in the name of different persons as follows:-

(a) Kapkoi Block 2/Wamuini ’B’/169 to Esther Waithera;

(b) Kapkoi Block2/Wamuini ’B’/744 to Lucy W. Kariuki;

(c) Kapkoi Block 2/Wamuini ’B’/743 Fridah Wanjiku; and

(d) Kapkoi Block 2/Wamuini ’B’/742 to Naomi Wanjiru.

15. He stated that he and his group obtained possession and built a structure thereon but there occurred a violent dispute while they were farming on the land; he maintained that he does not know who is in possession of the land at the time of giving evidence.

16. Upon further cross-examination by Mr. Kiarie for the plaintiff he admitted that there was issued an order of stay.

17. However upon re-examination by Mr. Okoth, he maintained that when the surveyors adjudicated the land, his family was issued with 9 acre portion. He also denied that he was served with an order in the judicial review proceedings. That marked the close of his evidence.

18. The plaintiffs filed their submissions on 8/1/2019. I have perused the court file and found no submissions filed on behalf of the defendant. However instead of filing submissions, he filed a notice of appeal and a request for documents for certified copies on 6/12/2019 that is 12 days after the order on submissions.

Determination

19. I have considered the pleadings and the evidence and the filed submissions.

20. Furthermore I have perused the evidence of the witnesses of the plaintiff and the evidence of the defendant.

21. The undisputed evidence is that there was a land dispute over the suit land that was taken to the Saboti Land Disputes Tribunal and resolved in favour of the late Kariuki Macharia, the defendant’s father, declaring him the owner of 9 acres of land in Wamuini Farm. As required by law that award was adopted as a judgment of the court on 20/6/1995 in Kitale PMC Land Case No. 4 of 1994. Subsequently the enforcement of that judgment was stayed by an order made in judicial review proceedings filed by the plaintiff’s father. Kitale HC Misc Civil Application No. 51 of 1997 (Formerly Eldoret HC Misc Civil Application No. 150 of 1997).

22. On 26/2/1998the High Court quashed the Tribunal award and the judgment in Kitale PMC Land Case No. 4 of 1994 became of no effect.

23. The plaintiff’s argument is that once the tribunal decision was quashed the 9 acres that had been awarded to the defendant’s father reverted back to the John Muchori Baiya, and that the interference by the defendant by way of subdivision of the title while a stay was still in place and the subsequent registration of the resultant subdivisions in the names of Esther Waithera, Lucy Wangari Kariuki, Fridah Wanjiku and Naomi Wanjiru was void and should be cancelled.

24. The defendant admits of the existence of the Tribunal award, the magistrates court judgment and the Judicial review proceedings that nullified both the award and the judgment. In this court’s view it behoved the defendant in the circumstances of this suit to present evidence to demonstrate that there was a successful appeal against the decision of the High Court in the judicial review proceedings and this he did not do. He also admitted that his father did was not in possession of the 9 acres by the time the Survey Committee of Wamuini Farm finalised its work. In this court’s view, the nullification of the award and judgment t of the Tribunal and the Magistrate’s court respectively left the defendant’s father in the same position that he was in before the award: landless. It is logical then that the late John Muchori Baya was also left in the same position that he was in before the award, that is, as owner of the suit land.

25. The evidence of the plaintiffs therefore satisfactorily supports the claim in the plaint. The plaintiffs have therefore established their claim on a balance of probabilities against the defendants. I therefore enter judgment in favour of the plaintiffs against the defendant and I issue the following orders:

(a) A declaration that the registration of parcels No. Kiminini/Kapkoi Block 2/Wamuini “B”/169 in the name of Esther W. Waithira, No. Kiminini/Kapkoi Block 2/Wamuini “B”/744 in the name of Lucy Wangari Kariuki, No. Kiminini/Kapkoi Block 2 /Wamuini “B”/743 in the name of Frida Wanjiku and No. Kiminini/Kapkoi Block 2/Wamuini “B”/742 in the name of Naomi Wanjiru was void ab initio.

(b) A declaration that the registration of parcels No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/ 169 in the name of Esther W. Waithira, No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/744 in the name of Lucy Wangari Kariuki, No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/743 in the name of Frida Wanjiru and No. Kiminini/Kapkoi Block 2/Wamuini ‘B’/742 in the name of Naomi Wanjiru is hereby cancelled.

(c) An order that the land register in respect of Kiminini/Kapkoi Block 2/Wamuini ‘B’/169, Kiminini/Kapkoi Block 2/Wamuini ‘B’/744, Kiminini/Kapkoi Block 2/Wamuini ‘B’/743 and Kiminini/Kapkoi Block 2/Wamuini ‘B’/742 shall be rectified to reflect the registration of plaintiffs herein as proprietors of those parcels in the order in which they may by their mutual consent prefer.

(d) The defendant shall bear the costs of this suit.

Dated, signedanddeliveredatNairobi via electronic mail on this 17th day of December, 2020.

MWANGI NJOROGE

JUDGE, ELC KITALE.