[2017] KEELC 507 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC. CASE NO. 384 OF 2013

FELISTER NYOKABI MWANGI

(Suing in her capacity as the legal Administratix of the Estate

of the late STEPHEN MWANGI MURUAH)…...............…PLAINTIFF

VERSUS

GRACE W. NJOKA

(Sued in her capacity as the Legal Administratix of the Estate

of the Late HON. EZRA NJOKA)…...............................DEFENDANT

JUDGEMENT

1. The Plaintiff filed suit on 20/3/2013 seeking a declaration that she is the lawful owner of L. R. No. 3577/45 measuring 0. 5 of an acre (“the Suit Property”) and that any title held by the Defendant or any other person acting through her should be cancelled and the Plaintiff be registered as the rightful owner of the Suit Property. She also seeks a permanent injunction to restrain the Defendant or persons claiming under her from invading, evicting, occupying, developing, letting, selling or transferring or otherwise interfering with the Plaintiff’s ownership of the Suit Property.

2. The Plaintiff is the legal administrator of the Estate of the late Stephen Mwangi Muruah. She has sued the Defendant who is the legal administrator of the Estate of the late Hon. Ezra Njoka who sold 2 acres to be excised from L.R. No. 3577 to the Plaintiff’s late husband. The 2 acres are said to be near a dam.

3. The Plaintiff avers that after her late husband had paid the full purchase price, he discovered that a sizeable portion of the land sold to him had been taken up by the dam and the late Hon. Ezra Njoka agreed to compensate the Plaintiff’s husband by giving him another plot measuring half an acre. The Plaintiff claims to have taken possession of the plots next to the dam and the second one measuring 0. 5 an acre on which she carried out farming activities from 2001 prior to the demise of her husband and the Defendant’s husband. The Defendant’s husband died in 2004.

4. The Plaintiff avers that the administrators of the Estate of the late Hon. Ezra Njoka completely disregarded the Plaintiff’s rights over the half acre plot that was given as compensation and have threatened to evict the Plaintiff. They brought surveyors to survey the land with a view to selling the plots to members of the public. The Plaintiff maintains that the Defendant is acting in bad faith, ill motive and is in breach of the contract of sale entered into between their husbands.

5. The Defendant filed a defence and counterclaim. She denies that there was any agreement for her late husband to compensate the late Plaintiff’s husband for the 2 acres he purchased. She also denies that at no time was the Plaintiff in possession of the Suit Property.

6. The Defendant counterclaimed the sum of Kshs. 320,428 as a refund of apportioned land rates and rent in relation to L.R. No. 3577/6 and L.R. No. 3577/7. She also seeks to have the Plaintiff restrained from trespassing on the Suit Property. The defence was amended on 2/5/2013 to claim the refund of Kshs. 320,428 while abandoning the quest for an eviction order to remove the Plaintiff from L. R. No 3577/45.

7. The matter was heard by Justice Onguto. The Plaintiff testified. She adopted her witness statement. She maintains that when her late husband and the late Hon. Ezra Njoka measured the plot her husband had bought they realized it was not two acres yet her husband had paid for two acres. Mr. Njoka promised to compensate her husband. She testified that her husband paid the purchase price of Kshs. 500,000/=for the two acres before he died. She stated that after her husband died in 1999, Mr. Njoka agreed to give her the half acre plot as compensation. She claims that he showed her the plot in 2001 after he sent for her and she went to see him in his office in Kahawa West.

8. She claims she was shown plot number 3577/45 which is the Suit Property as compensation due to the lesser acreage. The Plaintiff claims she took possession and she has continued using the plot. She paid survey fees of Kshs. 54,000/= but has not been issued with title to date. It was her evidence that the Defendant’s children have asked her to pay Kshs. 15 million for the Suit Property failing which they will sell it to other third parties. This prompted her to file this suit.

9. She confirmed that there were other plots near the dam which were sold. The Plaintiff claims that she used to visit the late Ezra Njoka before he died and they would tell her to wait for the title to be processed. She denied ever dealing with Mr. Njoka’s sons and that she only used to deal with Mr. Ezra Njoka. She claims to have been planting bananas, trees and other crops on the Suit Property. She admitted the coffee that is growing on the plot belongs to the Defendant.

10. The Defendant’s fourth born son, Stephen Kirubi testified on behalf of the Defendant. He confirmed that his father died in 2004. His father owned about 100 acres which he started subdividing in 1999. After 2004 there were transactions which were not completed. His mother was appointed the legal administrator of his father’s estate. In 2012 when his mother went to harvest coffee she was denied access to the Suit Property. He contacted the Plaintiff who came and produced documents to show that her deceased husband had purchased the two plots. The Plaintiff did not produce any documents to show that the half acre plot had been given to her by the late Ezra Njoka as compensation.

11. The Defendant demanded that the Suit Property be given up for sale when the Plaintiff could not raise the purchase price. He stated that they wanted the documents to confirm that the transaction was valid. They have continued to pay rates for all the land, which is why they seek a refund of Kshs. 320,428 which they paid on behalf of the Plaintiff in respect of plots number 6 and 7; which are not contested. He stated that they wished to give the Plaintiff her title for the plots which are not contested but they require her to pay the attendant costs. He stated that there were other plots which were vacant.

12. He confirmed that he never knew the Plaintiff was in possession of plot number 45 and that he only became aware in 2012 when the Plaintiff chased away his workers. He stated that his mother had inherited the Suit Property. He did not produce the receipts for the amount they claim as the Plaintiff’s share of the apportioned rates and land rent. He also stated that he had no objection to the Plaintiff occupying plots number 6 and 7.

13. Parties filed submissions. The issues for determination are:

i. Whether the Defendant is entitled to a refund of the apportioned land rates and rent from the Plaintiff from 1999.

ii. Is the Plaintiff entitled to half acre being the Suit Property as compensation to her late husband on account of the 2 acres he bought being found to be smaller?

iii. Did the Defendant act in bad faith, ill will and in breach of the contract of sale?

iv. Who should pay the costs of this suit?

v. Has the Plaintiff been in actual possession of the half acre plot?

14. The Defendant submits that the Plaintiff cannot lay claim to the Suit Property since she did not produce any written document as stipulated under Section 3(3) of the Law of Contract Act. She submits there is nothing in writing evidencing the alleged intention of parties who are both dead. The court notes that one of the documents produced by the Defendant is the agreement dated 27/11/2000 between Ezra Herman Njoka and Stanley Gachomo Kariuki for the sale of 2 acres to be excised from L. R. No. 3577/5 at the agreed consideration of Kshs. 1 Million.

15. The Plaintiff claims that she took possession of the 2 acres in 2001. The Defendants witness also stated that they had no problem with the Plaintiff’s ownership of L.R. No. 3577/6 and 7. The Plaintiff ought to have paid land rates and rent for these two acres. However, no evidence was tendered by the Defendant on how the sum of Kshs. 320,428/= which they claim from the Plaintiff as the apportioned land rate and rent was computed.

16. From the evidence of the Plaintiff and the Defendant’s witness, the Plaintiff has been in occupation of the half acre plot that she claims Mr. Njoka gave her as compensation after the land her husband bought turned out to be smaller in size. The Plaintiff’s assertion that the dam took up part of plot numbers 6 and 7 was not controverted by the Defendant. This was the basis for the compensation of the half acre plot which is the subject matter of the dispute.

17. The Defendant’s witness stated that he learnt that the Plaintiff had trespassed on the Suit Property in 2012 when the Plaintiff sent away his workers who had gone to harvest coffee while the Plaintiff’s evidence was that she has been farming on the suit land.

18. The court prefers the evidence of the Plaintiff over that of the Defendant’s witness. The Plaintiff claims she was shown the plot in 2001 by the Hon. Ezra Njoka who later died in 2004. As administrator of the estate of the late Ezra Njoka, the Defendant may not be in a position to tell with certainty whether or not the late Ezra Njoka compensated the Plaintiff with the Suit Property. The Defendant could have determined whether this was so by having the 2 plots which they do not dispute the Plaintiff owns measured by a surveyor to see if they are less than 2 acres and if the dam occupies part of these plots.

19. Both the Plaintiff and Defendants advocates made submissions on the conditions to be met to prove adverse possession. The court disregarded these submissions since the suit as drawn was not a claim for adverse possession.

20. The Plaintiff has proved on a balance of probabilities that she is the owner of the half acre which was given to her as compensation by the late Ezra Njoka when he discovered that the land her late husband bought from him was smaller in size than the 2 acres he paid for.

21. The Plaintiff is to be registered as the lawful owner of the Suit Property. The Defendant is directed to execute the documents that will facilitate the registration of the Plaintiff as the owner of the Suit Property within 30 days failing which the Deputy Registrar of the Environment and Land Court will execute the documents for transfer.

22. The Defendant’s counterclaim is dismissed with costs to the Plaintiff. The Plaintiff will have the costs of this suit. The court issues a permanent injunction restraining the Defendant from interfering with the Plaintiff’s ownership and title to the Suit Property

Dated and delivered at Nairobi this 6th day of December 2017.

K. BOR

JUDGE

In the presence of: -

Ms. Mbugua for the Plaintiff

Mr. Kimondo for the Defendant

Mr. V. Owuor- Court Assistant