[2019] KEELC 2422 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO.27 OF 2017

(FORMERLY HCCC No.2018 OF 1990- NAIROBI)

FRANCIS NDUNGU NJUGUNA.....................................................PLAINTIFF

-VERSUS-

DANIEL NDUNGU NJAU (As the Personal

Representative of the Estate ofNJAU KIBIRII...........................DEFENDANT

AND

PAULINA GACAMBI KARIUKI.................................INTERESTED PARTY

CONSOLIDATED WITH

ELC NO.49 OF 2007 (OS)

PAULINA GACAMBI KARIUKI............................................1ST PLAINTIFF

MARIA NJERI KARIUKI.......................................................2ND PLAINTIFF

-VERSUS-

DANIEL NDUNGU NJAU (As the Personal

Representative of the Estate ofNJAU KIBIRII...................1ST DEFENDANT

FRANCIS NDUNGU NJUGUNA........................................2ND DEFENDANT

JUDGMENT

Firstly, this Court apologizes to the parties herein and their Advocates for having taken long to prepare this Judgment. The file having been transferred from Milimani Environment & Land Court needed re-arrangement of both the pleadings and proceedings. Being an old file and having been moved from several registries, the pleadings got mixed up and I took long to re-arrange them and thus the delay. My apologies.

Having said that, there are two matters herein for determination, which were consolidated vide a Court Order given on 26th November 2010.

The first suit was filed vide a Plaint dated 26th April 1990 by

Francis Ndungu Njuguna against one Njau Kibirii wherein the Plaintiff had sought for these orders against the Defendant.

a) Specific performance under the referred agreement of sale, costs of the suit together with interest on costs at court’s rate.

b) Further or alternative order or orders that the court may deem fit and just.

However, the said Plaint was amended vide Leave of Court granted on 28th January 2010. The said Amended Plaint was filed on 4th February 2010,wherein the Defendant Njau Kibirii was substituted with Daniel Ndungu Njau, who was sued as the personal Representative of Estate of Njau Kibirii. The Plaintiff in his claim averred that the Defendant jointly with him are the registered proprietors in common in unequal shares of all that piece of land known as LR.No.Githunguri/Kimathi/173,situated in Kiambu District measuring approximately 6. 30 acres. That the Plaintiff and Defendant hold 100 out of 670 and 570 out of 670 undivided shares which is approximately one (1) acre for Plaintiff and 5. 3 acresfor Defendant.

Further that by an Agreement dated 23rd February 1990, the Defendant agreed to sell and transfer 150 out of 570 undivided shares out of the Defendant’s holding of the suit premises for Kshs.105,000/=. That the Plaintiff duly paid the said purchase price of Kshs.105,000/= against an express undertaking by the Defendant that he would obtain the necessary consent for the transaction from the Land Control Board without undue or ordinate delay. Further that despite several requests and demands made, the Defendant adamantly neglected and/or refused to fulfil his obligations under the agreement of sale and has chosen to alienate and/or dispose off the whole of his shareholding in the suit premises to a third party.

It was his contention that the Defendant’s action was fraudulent and aimed at stealing from the Plaintiff and therefore frustrate the contract between the two. He particularized the Defendant’s particulars of fraud in paragraph 6 of the Plaint.

He also contended that he had earlier purchased a portion of 3. 80 acresfrom the Defendant which amounted to purchase of 5. 3 acres. He alleged that he purchased 3. 8 acres for Kshs.280,000/= which the Plaintiff paid in full. That despite demand made and intention to sue given, to the Defendant, he refused to transfer his shareholding of the land to Plaintiff and thus this suit. The Plaintiff sought for the following orders against the Defendant:-

a) Specific performance under the said agreement of sale.

b) Costs of the suit together with interest on costs at courts rate.

c) Further or alternative order or orders as the court may deem fit and just.

d) A declaration that the Plaintiff is the lawful and/or legal owner of all that parcel of land known as LR.No.Githunguri/Kimathi/ 173 situated in Kiambu District measuring 6. 30 acres or thereabout.

e) An order directed to the Defendant and/or his legal representative to transfer his shareholding in the land to the Plaintiff or in the alternative the Deputy Registrar to sign all such documents as might be necessary to effect the transfer.

f) A refund of all the monies paid to the Defendant by the Plaintiff together with interest at commercial rates of 30% per annum.

The Defendant, Njau Kibirii filed his Defence on 25th August 1992,and averred that the Plaintiff’s suit disclosed no reasonable cause of action and did put the Plaintiff to strict proof. He further averred that the Plaintiff’s suit is scandalous and an abuse of the process of the court and he urged the court to strike out the suit with costs.

He however admitted that the Plaintiff and the Defendant are the registered proprietors in common in unequal and undivided shares of all that piece of land known as Githunguri/Kimathi/173, situated in Kiambu District. He further stated that he was unaware and was a stranger to the allegations made by the Plaintiff in his claim and did put him to strict proof.

The Defendant further raised a counter-claim and averred that the Plaintiff has refused and/or neglected to co-operate in partitioning of the said land parcel notwithstanding the consent from Kiambu Land ControlBoard. He also alleged that though the Plaintiff’s share is only one acre,he has put to use more than one acres of the said land taking advantage of the fact that the land has not been partitioned and therefore trespassing on the Defendant’s land. The Defendant therefore prayed for dismissal of the Plaintiff’s suit with costs and further prayed for Judgment against the Plaintiff for:-

a) Declaration that the suit land be partitioned.

b) An injunction to restrain the Plaintiff from trespassing or in any other way interfering with the Defendant’s use and enjoyment of his share of the suit land.

c) Damages

d) Costs of the suit

e) Interest on (c) & (d) above.

The 2nd suit is Originating Summons No.49 of 2007, which was filed by Paulina Gachambi Kariuki against Daniel Ndungu Njau (sued as the personal Representative of the Estate of Njau Kibirii) and sought for the following orders:-

1) A declaration that the Plaintiff is entitled to be registered forthwith as owner of 4 acres out of the share of Njau Kibirii (deceased) title No.Githunguri/Kimathi/173 which the Plaintiff has been in adverse possession since 1988 to date for more than 12 (twelve) years immediately preceding the presentation of this suit and of which she has utilized openly and continuously as of right and in adverse possession and without any interruption from the Defendant or hispredecessors in the above title and that the Defendant’s titleto the said 4 acres out of the share of Njau Kibirii (deceased)Githunguri/Kimathi/173 has been extinguished in favour of the Plaintiff under Section 37 & 38 of the Limitation of Actions Act (Laws of Kenya).

2) An order that the Defendant do transfer 4 acres out of the share of Njau Kibirii (deceased) title No.Githunguri/Kimathi/ 173 to the Plaintiff and in default the Deputy Registrar beauthorized to do and/or sign all documents to effect transferof 4 acres out of the share of Njau Kibirii (deceased) title No.Githunguri/Kimathi/173 to the Plaintiff.

3) An order of permanent injunction be issued restraining the Defendant, his servants, agents or any other person claiming through him from evicting the Plaintiff from the parcel of land known as title No.Githunguri/Kimathi/173 specifically the 4 acres in the Plaintiff’s possession or from digging holes on the suit land or interfering with the Plaintiff’s possession of the same or alienating, transferring, disposing and/or dealing with the suit land in any manner whatsoever.

4) An order for costs and interest thereon of this application

This Originating Summons was later amended on 24th June 2008 and in the amended Originating Summons, the parties are as follows:-

1. Paulina Gachambi Kariuki ....................................................1st Plaintiff

2. Maria Njeri Kariuki...............................................................2nd Plaintiff

-versus-

1. Daniel Ndungu Njau (as the Personal

Representative of the Estate of Njau Kibirii)........................1st Defendant

2. Francis Ndungu Njuguna...............................................2nd Defendant

The 2nd Plaintiff amended the original Originating Summons and sought for the following prayers:-

1) A declaration that the 2nd Plaintiff is entitled to be registered forthwith as owner of 2 acres out of the share of Njau Kibirii (deceased) title No.Githunguri/Kimathi/173 which the 2nd Plaintiff has been in adverse possession since 1988 to date for more than 12 (twelve) years immediately preceding thepresentation of this suit and which she has utilized openly and continuously as of right and in adverse possession and without any interruption from the 1st Defendant or his predecessors in the above title and that the 1st Defendant’s title to the said 2 acres out of the share of Njau Kibirii (deceased) Githunguri/Kimathi/173 has been extinguished in favour of the 2nd Plaintiff under Section 37 & 39 of the Limitation of Actions Act (Laws of Kenya).

2) An order that the 1st Defendant do transfer 2 acres out of the share of Njau Kibirii (deceased) title No.Githunguri/Kimathi/ 173 to the 2nd Plaintiff and in default the Deputy Registrar be authorized to do and/or sign all documents to effect transfer of 2 acres out of the share of Njau Kibirii (deceased) title No.Githunguri/Kimathi/173 to the 2nd Plaintiff.

3) An order of permanent injunction be issued restraining the 1st Defendant, his servants, agents or any other person claiming through him from evicting the 2nd Plaintiff from the parcel of land known as title No.Githunguri/Kimathi/173 specifically the 2 acres in the Plaintiff’s possession or from digging holes on the suit land or interfering, disposing and/or dealing with the suit land in any manner whatsoever till the case is heard.

4) An order for costs and interest thereon of this suit.

The original Originating Summons was supported by the Affidavit of Paulina Gachambi Kariuki who averred that she purchased the suit property Githunguri/Kimathi/173, from the deceased Njau Kibirii in1988(15th July 1988). That the said deceased acknowledged that the Plaintiff purchased and took possession of his share through his ReplyingAffidavitsworn on 19th April 1995,filed in HCCC No.2018 of 1990. That the said Njau Kibirii died on 28th February 1996, and upon his death, his family failed to disclose in the Nyahururu Succession Cause No.153 of 1996, that the Plaintiff (Paulina Gachambi) had purchased 4 acres in title No.Githunguri Kimathi/173. She attached a copy of the certificate of confirmation of Grant marked PGK-4.

It was her averments that she had used the suit land quietly and peacefully until 27th February 2007, when she received a letter from the 1st Defendant’s Advocate demanding that she vacates the suit property within a period of 90 days from the date of the said letter. Further that the 1st Defendant invaded the suit land on 12th March 2007, and threatened to harm her son and his workers. It was her contention that she has been in open continuous and adverse possession of the suit land since 1988 and thus she has acquired title by virtue of adverse possession or law of limitations. She urged the Court to allow her claim.

In the amended Originating Summons, the same is supported by the affidavit of Maria Njeri Kariuki, whe averred that in 1988, her mother Paulina Gachambi agreed to buy 4 acres in LR.No.Githunguri/Kimathi/173,fromNjau KabiriiforKshs.570,000/=. That the said Maria Njeri Kariukicontributed Kshs.321,000/= towards the purchase of 2 acreswhich she had occupied from 15th July 1988. She claimed that no Land Board Consentwas ever sought or obtained and her possession of 2 acres became adverse to the registered owner as from 15th July 1988. She claimed that she used the name of the 1st Plaintiff to buy the said land andalso bought 149 mature coffee bushes from Daniel Ndungu Kibirii. That in 1995, she laid a foundation for her stone house on her 2 acres and grew a further 237 coffee trees, nappier grass and other crops. She also averred that she has occupied the 2 acres continuously as of right since 1988 and she is therefore entitled to the same by adverse possession. She urged the court to declare that she is entitled to the same and further order transfer of the said 2 acres to her.

The 1st Defendant appointed S. W. Ndegwa & Co. Advocates on 29th May 2008,as his advocates but this Court has perused the court file and has not seen any Defence or Response to the Originating Summons No.49 of 2007. Further, the 2nd Defendant appointed Gachoka Mwangi & Co. Advocates on 25th August 2008, and though I have perused the court file thoroughly, I have not seen any statement of Defence or Response by the 2nd Defendant in respect to this Originating Summons No.49 of 2007.

After several applications and numerous adjournments, the matters were consolidated on 26th November 2010. Eventually, the hearing of the matter commenced before me on 11th July 2013,and other subsequent dates.

PLAINTIFF’S CASE

PW1 – Francis Ndungu Njuguna, the Plaintiff in HCCC No.2018 of 1990 adopted his witness statement and averred that in 1968, his brother leased land known as Githunguri/Kimathi/173 for 7 years. Later theowner of the said land sold it to the Plaintiff. That he initially purchased 1. 00 acre, from the Defendant, (Njau Kibirii) who owned 5. 3 acres. However, the Defendant did not transfer the said land to him. That the said Defendant took a loan from Agricultural Finance Corporation (AFC) which he did not pay. However, the Plaintiff paid the said loan for him and the parties entered into a Sale Agreement dated 23rd February 1990, which he produced as exhibit 1. He also produced another Agreement dated 30th December 1977, which he produced as exhibit 2. That after the purchase, he was registered as a co-owner of the suit property together with Njau Kibirii as per the Green Card - exhibit No.4. He confirmed that he paid the loan for Njau Kibirii and he produced receipts as exhibit No.5. He also produced a Lease Agreementdated 30th April 1968 as exhibit No.7 and Death Certificate for Njau Kibirii as exhibit No.6. He denied knowing the Interested Parties but he stated that Paulina Gachambi entered into the suit land in 1997, and he was not aware of her agreement dated 1988. That Paulina Gachambi invaded the land whilehe was away and that he has used the land since 1968. That the Interested Parties and the Defendant are all one family and they have colluded to take way the land from him. That he paid about Kshs.350,000/= as loan and his last payment was on 21st June 1988.

PW2 – Moses Kuria Kiru also adopted his witness statement and confirmed that the Plaintiff purchased the suit land Githunguri/Kimathi/ 173,from Njau Kibirii. He stated that he recalled that in June 1988, his brothers-in-law, the Plaintiff requested him to purchase a Banker’s cheque on his behalf as final payment for purchase of the suit land. That the said Banker’s cheque was in favour of Njau Kibirii.

After the close of the Plaintiff’s case in HCCC No.2018 of 1990, the Plaintiffs in Originating Summons No.49 of 2007 also gave their evidence.

PW3 – Maria Njeri Kariuki the 2nd Plaintiff in the amended Originating Summons told the court that Paulina Gachambi Kariuki, the 1st Plaintiff was her mother. It was here evidence that she used to work as a Secretary in the Office of the President (OP) from 1973 – 1995. She produced her payslips as exhibits in court. She told the court that they purchased the suit land from Njau Kibirii, the owner of the suit land. That she paid Kshs.321,000/= for purchase of 2 acres. That the purchased land was 4 acres out of 6 acres. That she paid for 2 acres and her mother paid for the other 2 acres and the total purchase price wasKshs.570,000/=. It was her testimony that she used her savings to pay forthe purchase price. That she took possession of the suit land on 15th July1988, and she is in possession todate. That a Sale Agreement was entered and was witnessed by various persons. She also stated that her mother also took possession of her 2 acres together with her children. That she also built a permanent house on the suit property though it is notcomplete todate. She produced photographs of the said foundation as exhibit in court. That she even sell her coffee at Gichinji Coffee Factory and produced documents from the said coffee factory to show that she is a member. It was her further evidence that she has lived on the suit land for 26 years and she has never moved out. She urged the Court to declare her as the registered owner of the 2 acres. She also denied that the suit land is owned by Francis Ndungu. She produced exhibits No.1 – 5 to support her claim.

PW4 – George Mathu Kariuki told the court that he is from Githunguriand Maria Njeri is related to him. He stated that on 15th July 1998,he witnessedMaria Njeri giving out money for purchase of land. The money was given to her mother Paulina Gachambi Kariuki, the 1st Plaintiff. Maria Njeri gave out Kshs.100,000/= and he counted the said money and gave it to Paulina Gachambi for purchase of the suit land. The land was being sold by Njau Kibirii and the land sold was 4 acres. That Mariacultivates the said land todate and she has planted coffee bushes and she occupies part of it since 1988. It was his further evidence that Daniel Ndungu Njau does not use the land as he has a separate landthat he uses.

PW5 – Gikonyo Mwongeri told the court that he is a peasant farmer and he is known to Maria Njeri and Paulina Gachambi as they live in the same area. That on 15th July 1988, he was called by Maria Njeri Kariuki, who had been summoned by her mother Paulina Gachambi.

She had been summoned over purchase of Githunguri/Kimathi/173, which was being purchased by Paulina Gachambi, Maria Njeri, Njoroge KariukiandKanyingi Kariuki. That the said land parcel was being purchased from Njau Kibirii and therefore Maria Njeri had been summoned by her mother to give out her money for the said purchase. He testified that Maria Njeri had Kshs.60,000/= which was not enough but she later brought Kshs.40,000/= that evening and gave it to her mother Paulina Gachambi. The total amount given to Paulina Gachambi was therefore Kshs.100,000/= for purchase of the said land. Further that Paulina Gachambi was purchasing 2 acres and Maria Njeri, 2 acres and the total purchased land was 4 acres. It was his testimony that Maria cultivates the land todate and has planted nappier grass and other subsistence crops. He contended that Maria Njeri has used the land since 1988, and she tried to built a house but was stopped at the foundation. However, the toilet is still standing and Maria has been using the land all through and the others do not use her land.

PW6 – Sammy Karanja Mbuthia told the court that he comes fromGithunguriand he is a mansion. That in February 1995, Maria Njericalled him and requested him to start putting up a house for her on Plot No.173 Githunguri/Kimathi. That Mariawanted to put up a permanent home and so they started the construction which went upto fourth level. That he did that work with Samuel Mudati Kareithi but they did notfinish the construction because Maria Njeri said her money was finished. That it was Maria Njeriwho was using the said land and she had cultivated it and planted subsistence crops. He confirmed that Maria Njeri uses the land todate and he knows that as he comes from the general area and he sees Maria Njeri using the said land. Further that Maria Njeri has used the said land since 1995, and that the said foundation is still on the land and so is the toilet.

PW7 – Samuel Mudati Kariithi told the court that he lives in Githunguri, Kimathi Village. Further that in the year 1995, he was a mansion and in February of that year Maria Njeri contracted him to put up a house for her on land parcel No.Githunguri/Kimathi/173. That they put it up to foundation level. The house was containing four rooms and a bathroom. The toilet was built outside. However they stopped putting up the house at level four when Maria Njeri said her money was finished. That he has never gone back to that area and Maria Njeri has not called them back to continue with the work. He confirmed in cross-examination that Maria Njeri did not tell them whether the land was hers or not and healso did not see the title deed. Further that she did not tell them how sheacquired the land nor tell them about the case in court. That Maria Njeri only told them that she had finished her money and thus the reason for stopping further constriction.

After the close of Maria Njeri’s case, 2nd Plaintiff in OriginatingSummons No.49 of 2007, the 1st Plaintiff in the said Originating Summonswho was presented by Mr. Omollo Advocategave their evidence and two witnesses were lined up.

PW8 – George Kagiri Kariuki from Githunguri, told the court that Paulina Gachambi was his mother who is now deceased. He further stated that Maria Njeri is his sister and he knew about this case. He testified that on 15th July 1988, Paulina Gachambi bought the suit land Githunguri/Kimathi/173 from Njau Kibirii for Kshs.570,000/= and the land purchased was 4 acres. That the Sale Agreement allowed Paulina Gachambi Kariuki to use the land together with another 1½ acres. Later this case was filed in court by Francis Ndungu Njuguna against Njau Kibirii. Then his mother Paulina Gachambi came in as an Interested Party.

He denied that Maria Njeri had paid for the purchase of this suit land and he contended that it was his mother who gave out the money to buy the land. He disputed that Maria Njeri owns 2 acres but admittedthat she uses the land with other relatives such as the wives of his deceased brothers. It was his evidence that he does not use this land because he lives elsewhere. He also stated that he did not witness Maria Njeri putting up any house on the suit land but she only put up a toilet. That he only saw the foundation on the suit land. He did not know when the foundation was constructed as he never saw the foundation being laid down. He however admitted that there is a toilet on the suit land with a foundation upto level 2. He further stated that Maria Njeri removed her building material and built elsewhere and she now lives in another plot. He could not recall what happened on 15th July 1988, and he confirmed that his mother could be able to buy land on her own. Further that his mother bought other parcels of land elsewhere and she also owned Grade Cows, had coffee bushes and grew subsistence crops which she used to sell for a profit. That since he was the last born, his mother had no expenses and she was able to buy land without assistance from any of her children and Maria Njeri did not assist their mother to buy this land.

In cross-examination he stated that his sisters-in-law use this land.

He confirmed further that the money for purchase of the land was given by his mother Paulina Gachambi but not Maria Njeri.

PW9 – Alice Wangari Njoroge, told the court that she was married to John Njoroge Kariuki, who was a son to Paulina Gachambi Kariuki. Further that Paulina Gachambi bought the suit land on 15th July 1988 from one Njau Kibirii. It was her testimony that she was married to John Njorogein 1973 and her husband died in the year 2000. She alsotestified that Paulina Gachambi (her mother-in-law), her husband and his other brothers went to Nyahururu to see the Vendor Njau Kibirii and they paid for the land and thus purchased land parcel No.Githunguri/Kimathi/173, which was 4 acres. She stated that Maria did not contribute to thepurchase of the land as Paulina Gachambi had sold her other assets in order to purchase this suit land. She further testified that Njau Kibirii had also confirmed in his affidavit that he sold the suit land to Paulina Gachambiand Maria Njeriwas not a purchaser of this suit land. However Maria Njeri started putting up a house on the suit land in 1995 and later stopped after a Court Order was issued. That Maria Njeri was given the land by Paulina Gachambi but Maria Njeri did not purchase the same.

That sometime Njau Kibiriiwould stop them from using the land but he was ordered by the court to stop doing so. She also stated that Maria Njeri now lives on a separate parcel of land. She further stated that she did not see Maria Njeri giving money to Paulina Gachambi for purchase of this land. It was her evidence that the suit land was purchased for Kshs.570,000/= by Paulina Gachambi Kariukialone and it is 4 acres.

DEFENCE CASE

DW1 – Daniel Ndungu Njau, stated that he is the son of NjauKibirii, who owned land parcel No.Githunguri/Kimathi/173. That thesuit was filed by Francis Ndungu Njuguna, who alleged that Njau Kibirii sold the whole of his land to him. He however testified that Francis Ndungu Njuguna purchased 1 acre and after the said sale, Njau Kibirii and Francis Ndungu Njuguna went to Land Control Board and Consent to sell the land was given. He produced the consent letter from the Land Control Boardas Defendantexhibit 1.

That after the Consent, Francis Ndungu Njuguna went to the land and was shown where to built his house. The title deed was then issued in the joint names of Njau Kibirii and Francis Ndungu Njuguna to hold unequal shares. That his father was not literate and could not have known what transpired. He identified the said Green Card in court. He denied that Francis Ndungu Njuguna paid for another 3 acres as there was no other meeting at the Land Control Board. He produced a search document to show that Francis Ndungu Njugunaowns 1. 00 acre and Njau Kabirii 5. 3 acres. He asked the court to order that the Defendant do retain 5. 3 acres and Francisto retain 1. 00 acre. He produced the documents in court as exhibit.

He also admitted having known Paulina Gachambi and Maria Njeri Kariukiwho are related to him. He denied that his father Njau Kibirii sold the suit land to Paulina Gachambi and Maria Njeri. Further that Paulina Gachambi was using the land but had not purchased it. Thatsince Paulina Gachambi was using the land, that is how Maria Njeri got into contact with the suit land. That his family lives in Nyahururu and so is he and that Paulina Gachambi was authorized by his mother to look after the suit land but the said land was never sold to Paulina Gachambiby his father Njau Kibirii.

In cross examination he stated that before partitioning of the land, Francis Ndungu Njuguna filed this case. He also confirmed that the land is used by the children of PaulinaandFrancis but he did not know what portion is utilized by each family. He further denied that the suit land was ever sold to Paulina Gachambi. He admitted having sold his coffee bushes to Maria Njeri Kariuki. He also denied that Maria Njeri ever put up a house on the said suit land but admitted that she has built a toilet thereon. He however confirmed that Maria Njeri has been on the suit land for the last 27 years. He also denied that Maria Njeri has paid Kshs.301,000/= as purchase price for the suit land. It was his evidence that the land was left with Paulina Gachambi and that is why her children are utilizing the said land. He also confirmed that he lives in Nyahururu and that he sold all his coffee bushes to Maria Njeri.

After the close of the respective parties cases, written submissionswere filed which this court has carefully read and considered. The court has also considered the pleadings in general, the exhibits produced incourt and the cited authorities and makes the following findings;-

There is no doubt that Njau Kibirii was the sole registered owner of the suit property prior to 1977. The Green Card produced in court by the Plaintiffs in both HCCC No.2018 of 1990 and Originating SummonsNo.49 of 2007, confirms that Njau Kibirii was registered as the proprietor of the suit land on 11th November 1958, and a certificate of title was issued on 11th November 1975. It is also not in doubt that on 30th December 1977, the said suit property Githunguri/Kimathi/173 was registered in joint names of Njau Kibirii and Francis Ndungu Njuguna to hold the same in unequal shares. The Plaintiff Francis Ndungu Njuguna told the court that he purchased approximately 1. 00 acre from Njau Kibirii in 1977, after having utilized the land since 1968. The Plaintiff produced a Lease Agreement dated 30th April 1968, showing that one Muthoni Njau on behalf of Njau Kibirii received Kshs.980/= as payment for lease and the lease period was to come to an end in 1975. It is also evident that in the year 1977, the said Njau Kibirii and Francis Njau Njuguna, entered into a Sale Agreement for sale of one acre from the suit land and that was the reason why the Plaintiff got registered as a holder of 81 out of 505 shares from the suit land. What is also not in doubt is that the Plaintiff after having been registered as owner of unequal shares, hadbeen utilizing the said 1. 00 acre from the suit land.

However, the Plaintiff alleged that he was indeed utilizing the wholesuit land which is approximately 6. 3 acres and that he purchased the whole suit land from the said Njau Kibirii and he paid the full purchase price as is evident from the exhibits produced by him in court.

This evidence has been disputed by the Defendant and the Plaintiffs in Originating Summons No.49 of 2007 and will be subject to determination. It is also not in doubt that on 20th April 1990, Githunguri Land Control Boardgave Consent to Njau Kibirii to partition the land parcel No.Githunguri/Kimathi/173, so that Njau Kibirii was to get 5. 3 acres and Francis Ndungu Njuguna 1. 00 acre. Therefore what is not in doubt is that the Plaintiff herein had purchased 1. 00 acre from Njau Kibirii’s parcel of land Githunguri/Kimathi/173, and a consent to partition the same was granted by the Land Control Board Githunguri. However, what is in dispute is whether the Plaintiff later purchased the remainder 5. 3 acres from the said Njau Kibirii.

It is also not in doubt that a dispute arose between the Plaintiff and the said Njau Kibirii in 1990, which led to the filing of this case by the Plaintiff. Further there is no doubt that from the certificate of official search filed in court by the Defendant, an injunctive order was placed on the title of the suit property on 7th May 1990, and further prohibitory order was also placed on the title on 9th October 1990, and restriction barring any dealing vide the District Commissioner’s letter dated 18th September 2003.

It is also not in doubt that in the year 2007, Paulina Gachambi Kariuki filed an Originating Summons No.49 of 2007 claiming to have acquired ownership of the suit property through adverse possession. The

said Paulina Gachambi Kariuki alleged that she purchased 4 acres from Njau Kibirii on 15th July 1988, and she produced a Sale Agreement to that effect. It was averred that the said Njau Kibirii did not transfer the suit land to Paulina Gachambi Kariuki but allowed her to take possession. She filed the claim after the Plaintiff herein obtained injunctive orders which were registered on the title.

It is also not in doubt that the family of Paulina Gachambi Kariuki is using a portion of the suit land which they claim is the 4 acres purchased by the said Paulina Gachambi Kariuki. It is also not in doubt that Maria Njeri Kariuki has alleged that she purchased 2 acres out if the 4 acres purchased by Paulina Gachambi Kariuki from Njau Kibirii. It was her contention that she owns 2 acres and Paulina Gachambi Kariuki owns 2 acres and the court should declare that she is entitled to the said 2 acres by adverse possession. However the family of Paulina Gachambi and the Defendant have disputed the claim by Maria Njeri Kariuki.

On the other hand, the Defendant has denied that the late Njau Kibiriiever sold the suit land to the Plaintiff nor to Paulina Gachambi Kariuki. He asked the court to declare that the suit land is wholly owned by the Defendant herein. The Defendant however admitted that the Plaintiff in HCCC No.2018 of 1990, purchased 1. 00 acre from Njau Kibirii and that is the only portion that he is entitled to. It is evident that the Plaintiff in HCCC No.2018 of 1990 has disputed consolidation of the suits herein and alleged that Originating Summons No.49 of 2007 was Stayed by Lady Justice Ang’awa on 11th July 2007.

The Court has perused the court record and confirmed that the Originating Summons No.49 of 2007 had initially been Stayed. However on 26th November 2010, Lady Justice Okwengu (as she then was) allowed consolidation of these two suits and that being the later Court Order, then the Court finds and holds that indeed the two suits were consolidated.

Again, the Court finds that the Plaintiff in HCCC No.2018 of 1990 has all the time participated in this proceedings as if he was contended with the consolidation of the two suits. He cannot now turn around and allege that the said consolidation was illegal whereas he has fully participated in the proceedings to its logical conclusion.

The above being the undisputed facts, the Court finds the issues fordetermination are:-

i. Did the Plaintiff and Njau Kibirii (deceased) enter into any Sale Agreement for the sale and purchase of the suit land?

ii. If there were Sale Agreements entered between Francis Ndungu Njuguna and Njau Kibirii, was the Land Control Board Consent sought?

iii. What were the terms of the said Sale Agreement and did any of the party breach the same?

iv. Did the late Njau Kibirii sell the suit land to Paulina Gachambi Kariuki?

v. Did Maria Njeri Kariuki purchase 2 acres from Njau Kibirii?

vi. Is any of the Plaintiffs herein entitled to the reliefs sought?

vii. Who should bear costs of this suit?

i. Did the Plaintiff in HCCC No.2018 of 1990 and Njau Kibirii (Deceased) enter into any Sale Agreement forsale and purchase of the suit land?

As the Court found earlier, there is not doubt that Francis Ndungu Njuguna did purchase 1. 00 acre out of Githunguri/Kimathi/173, in 1977. Though no Sale Agreement was produced in support of this sale of 1. 00 acre to Francis Ndungu Kariuki, it is evident that the said Francis Ndungu Njuguna was registered as a co-owner in unequal shares in 1977. The Court will believe that by the time the Plaintiff (Francis Ndungu Njuguna) was registered as a co-owner of unequal share, an agreement for sale had been entered.

Further the Plaintiff(Francis Ndungu Njuguna) has produced othersets of subsequent Sale Agreements dated 30th December 1977and23rd February 1990. The said Sale Agreements were over sale of land between Njau KibiriiandFrancis Ndungu Njuguna. In the Sale Agreement dated30th December 1977, the said Njau Kibirii received Kshs.55,000/= on 30th December 1977 and the balance was to be paid occasionally when he would be going to clear his loan for Laikipia West No.74 Marmanet. It isevident that the Plaintiff Francis Ndungu Njuguna did produce various receipts showing that he made payment over plot No.74 Marmanet 26/2/1. It was not in doubt that Njau Kibirii lived in Nyahururu and there was no dispute that he owned Marmanet No.74. This Court will therefore believe that the Plaintiff Francis Ndungu Njuguna entered into various Sale Agreements with Njau Kibirii for sale of the suit property. However, from the various receipts produced in court, the payment of the purchase price was not done at once but on various scattered occasions.

ii. If there were Sale Agreements entered between FrancisNdungu Njuguna and Njau Kibirii, was the LandControl Board Consent sought?

The Court has perused the court file and the exhibits thereon. This Court has noted that the only consent obtained was for partitioning of the suit property so that Njau Kibirii was to remain with 5. 3 acres andFrancis Ndungu Njuguna was to get 1. 00 acre. It is evident that Njau Kibirii was selling an agricultural land and as provided by Section 6 of the Land Control Board Act, the Consent of Land Control Board was necessary. It provides:-

“Each of the following transactions that is to say—

a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;

b)the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of;

c) Deleted by Act No. 22 of 1987, Sch. is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act”

Without the Consent of the Land Control Board, then the agreement entered was nullandvoid. See the case of Elizabeth Cheboo…Vs…Mary Cheboo Gimnyigei, Civil Appeal No.40 of 1978, where the Court held that:-

“Failure to get Land Control Board consent renders the agreement void and no specific reference can be granted.”

Further in Mbuthia Charagu …Vs…Kiarie Kaguru, Civil Appeal No.87 of 1986, the Court held that:-

“Unless there is a consent of Land Control Board all the transactions relating to the transfer are null and void.”

Further, the Court finds that Section 7 of Land Control Board Act provides that if no Consent has been obtained, any purchase price paid canbe recovered as Civil debt. See said Section provides;

“ If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as adebt by the person who paid it from the person to whom it was paid, but without prejudice to section 22. ”

See also the case of Willy Kimutai Kitilit…Vs…Michael Kibet (2018) eKLR, where the Court of Appeal held that:-

“Under Section 7 of the Land Control Act, consideration paid for a transaction which becomes void is recoverable as a debt subject to Section 22 which provides:-

“Where a controlled transaction; or an agreement to be a party to a controlled transaction , is avoided by Section 6and any person-

a) Pays or receives any money; or

b) Enters into or remains in possession of the land, in such circumstances, as to give rise to a reasonable presumption that the person pays or receives the money or enters into or remains in possession in furtherance of the avoided transaction or agreement, that person shall be guilty of an offence and liable to a fine not exceeding three thousand shillings or to imprisonment for a term not exceeding three months or both such fine and imprisonment”.

Therefore, though Francis Ndungu Njuguna did enter into the two Sale Agreements dated 30th December 1977and23rd February 1990 with Njau Kibirii, no Consentfrom Land Control Board was obtained and therefore the only remedy available is for refund of the purchase price.

iii. What were the terms of the said Sale Agreements and did any of the party herein breach the same?

The terms of the said Sale Agreements were that Francis NdunguNjuguna was to pay the purchase price and Njau Kibirii was to sell the portions of land described therein to the purchaser Francis Ndungu Njuguna. The Sale Agreement dated 30th December 1977 stated that the purchaser Francis Ndungu Njuguna was buying 3. 8 acres for

Kshs.280,000/=. He was to pay Kshs.55,000/= upon signing the said Sale Agreement and the balance was to be paid in instalments. From the exhibit No.3 produced by the Plaintiff (Francis Ndungu Njuguna) it is evident that he paid various amounts to Njau Kibirii. It is evident that some of the amounts were used to settle Njau Kibirii’s loan over Laikipia West No.74 Marmanet.

Therefore, it is evident that Francis Ndungu Njuguna did meet his part of the bargain. However Njau Kibirii did not transfer the suit land to Francis Njdungu Njuguna and therefore Njau Kibirii was the one in breach. The Sale Agreement did not have a completion date and therefore Francis Ndungu Njuguna paid the purchase price by instalments as and when he was able to do so.

iv. Did the said late Njau Kibirii sell the suit land to Paulina Gachambi Kariuki?

It is evident that on 10th April 1995, Njau Kibirii swore a Replying Affidavitin response to the Chamber Summons application filed by Francis Ndungu Njuguna and deponed in paragraph 4 that he had sold the suit land to Paulina Gachambi Kariuki on 15th July 1988. He annexed a Sale Agreement to that effect. He also deponed that the saidPaulina Gachambi Kariuki was in possession of the suit land since 15th July 1988. It was also evident that Paulina Gachambi Kariuki (deceased) through the substituted witness, George Kagiri Kariuki produced a Sale Agreement dated 15th July 1988, which showed that indeed Paulina Gachambipurchased 4 acres from Njau Kibirii for Kshs.570,000/=. Maria Njeri Kariuki also confirmed the said purchase and she produced the Sale Agreement as exhibit to support her claim.

Though Njau Kibirii had entered into a Sale Agreement with Francis Ndungu Njuguna on 30th December 1977, but without Land Control Board Consent, he entered into another Sale Agreement with Paulina Gachambi Kariuki. The purchase price for the 4 acres was Kshs.570,000/= which Paulina Gachambi Kariuki allegedly paid in full as per the Sale Agreement. The said Paulina Gachambi Kariuki also took possession of the suit land and it is evident that she has been utilizing the suit land together with her family. Though Francis Ndungu Njuguna, Plaintiff in HCCC No.2018 of 1990, had alleged that he was in possession of the suit land since 1977, it is not clear how Paulina Gachambi Kariuki and her family could have utilized and/or entered into the suit land if Francis Ndungu Njuguna was in possession. This Court believes that Paulina Gachambi Kariuki did pay Kshs.570,000/= on 15th July 1988 for purchase of 4 acres from Njau Kibirii. However, there was no Land Control Board Consent and the said Sale Agreement cannot be enforced. However the said Paulina Gachambi Kariuki and her family has been in possession of the suit land since 1988 and are now claiming ownership through adverse possession. ‘Adverse possession’ is described in the case of Mtana Lewa Kinya…Vs…Gerald Kwendaka (2015) to mean:-

“Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of its title for a certain period in Kenya it is 12 years…..The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the license of the owner.’’

v. Did Maria Njeri Kariuki purchase 2 acres from Njau Kibirii?

Maria Njeri, the 2nd Plaintiff in Originating Summons No.49 of 2007 has alleged that she is entitled to ownership of 2 acres from the portion purchased by Paulina Gachambi Kariuki because she paid for 2 acres and Paulina paid for 2 acres. It was her evidence that she contributed Kshs.321,000/= towards the purchase of 2 acres and she produced various exhibits to support her claim. She called PW4 and PW5 to confirm that they saw Maria Njeri giving money to Paulina. PW4 told the court that he saw Maria Njeri giving Kshs.100,000/= to Paulina on 15th July 1988. However it was stated by the other witnesses that on 15th July 1988, Paulina Gachambi was at Nyahururu where the Sale Agreement was drawn. Further though Maria Njeri stated that she did give Kshs.321,000/= to Paulina Gachambi as part of the purchase price, there was no written document produced in court. The fact that Maria Njeri sells coffee to Gichinji Coffee Factory is not prove of having purchased the 2 acres. Further the fact that PW6 and PW7 had been contracted by Maria Njeri to lay a foundation on the suit land was not prove of purchase of 2 acres. The Court finds that there is no evidence that Maria Njeri Kariuki did purchase 2 acres from Njau Kibirii. However, the available evidence is that the Paulina Gachambi did purchase 4 acres from Njau Kibiriibut not Maria Njeri.

vi. If any of the Plaintiffs herein is entitled to the reliefs sought?

The Plaintiff in HCCC No.2018 of 1990, Francis Ndungu Njuguna has sought for various reliefs.

Firstly, the Plaintiff has sought for an order of specific performance under the said agreement. Specific performance is an equitable relief which is granted by the court when all the terms of the Contract have been met. See the case ofMasha...Vs....Tol Ltd (2003) 2 EA 593 (SCU);

“It is settled law that a person seeking to enforce a contractmust show that all the conditions precedent have been fulfilled and that he has either performed or is ready and willing to perform all the terms which ought to have been performed by him….”

In the instant case, the Plaintiff Francis Ndungu NjugunaandNjau Kibirii signed two Agreements. The Plaintiff alleged that he had performed his part of the bargain but the Defendant has failed to perform. However, it is evident that no Consents were obtained from Land Control Board. Further it is not clear which of the two Agreements is being sought to be specifically performed. See the case of Reliable Electrical Engineers Ltd…..Vs….Mantrac Kenya Limited (2006) eKLR,wherein Justice Maraga (as he then was) stated that:-

“Specific performance like any other equitable remedy is discretionary and the Court will only grant it on well laid principles”

“The Jurisdiction of specific performance is based on the existence of a valid enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or enforceable. Even when a contract is valid and enforceable, specific performance will however not be ordered where there is an adequate alternative remedy. In this respect damages are considered to be an adequate alternative remedy where the claimant can readily get the equivalent of what he contracted for from another source. Even when damages are adequate remedy specific performance may still be refused on the ground of undue influenced or where it will cause severe hardship to the defendant.”

The Court finds that the Plaintiff herein is not entitled to an order of specific performance.

The Plaintiff also sought to be declared the lawful owner of the suit land comprising 6. 3 acres. However, it is evident that the Sale Agreements entered by Francis Ndungu Njuguna and Njau Kibirii are notenforceable as Consents from Land Control Board was not obtained. The Plaintiff cannot be declared a lawful owner if the Sale Agreement in issue did not pass any title to him. Further, it is evident that what is clear is that Francis Ndungu Njuguna purchased 1. 00 acre from Njau Kibirii but not 6. 3 acres. The Court cannot declare him the legal owner of this suit property.

He has also sought for an order that the Defendant be directed to transfer the suit property to him. This relief cannot be granted as the court has found that the Sale Agreements in issue are not enforceable as no Consent from Land Control Board was obtained. However, the Plaintiff Francis Ndungu Njuguna is entitled to a transfer of 1. 00 acre to himself which is not in dispute. The suit property should be partitioned so that the Plaintiff herein in HCCC No.2018 of 1990, can be registered as the owner of his 1. 00 acre which he is registered as holding in unequal shares together with Njau Kibirii.

On the refund of the purchase price, it is evident that Francis Ndungu Njuguna did pay the stated amount in the Agreements dated 30th December 1977and 23rd February 1990. There is a schedule that was produced in court by the Plaintiff which showed the different instalments paid to Njau Kibirii by the Plaintiff herein. The Plaintiff is accordingly entitled to a refund of the already paid purchase price of Kshs.385,000/= with interest at court’s rate from the date of filing of thissuit to payment in full.

In respect of Paulina Gachambi Kariuki, it is evident that her family has been in occupation and possession of the suit land since 1988. Though the Sale Agreement between Paulina Gachambi Kariuki (Deceased)andNjau Kibirii (Deceased) was not enforceable because no Consentfrom the Land Control Board was obtained, it is evident that the family of Paulina Gachambi Kariuki has been in continuous and uninterrupted possession of the 4 acres from 1988. Therefore the Courtfinds that the estate of Paulina Gachambi Kariuki has acquired ownership to this 4 acres by virtue of adverse possession. See Section 38 of Limitation of Actions Act;

“Where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, or land comprised in a lease registered under any of those Acts, he may apply to the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land”.

Also see the case of Wambugu...Vs...Njuguna (1983) eKLR, the Court held that:-

“In order to acquire by statute of limitation, a title to land which has a known owner, that owner must have lost his right to the land either by being dispossessed of it or by having discontinued his possession of it”.

However, the Court finds that Maria Njeri Kariuki has been in possession of the portion of land she is utilizing by virtue of being a child ofPaulina Gachambi Kariuki. Since her mother’s estate has been found to have obtained ownership by virtue of adverse possession, the Court finds that Maria Njeri’sclaim cannot stand. She is entitled to inherit from the estate of her mother just like the other siblings.

vii Is the Defendant entitled to the prayers sought in the Counter-claim?

The Defendant in the Counter-claim had sought for an order that the suit land be partitioned. Since the court has found that Francis NdunguNjuguna is entitled to 1. 00 acre from the suit land, the Court finds that prayer as sought by the Defendant is merited and the Court do order that the suit land should be partitioned so that Francis Ndungu Njuguna gets his 1. 00 acre and thereafter from the balance, the estate of Paulina Gachambi Kariuki is entitled to 4 acres by virtue of adverse possession and the remainder is what the Defendant is entitled to.

However, the Defendant is not entitled to any damages. On injunction, the same is only in respect of the remainder after removal of 1. 00 acre for the Plaintiff and 4 acres for the estate of Paulina Gachambi Kariuki.

viii. Who should pay costs of the suit?

This matter has been in court for many years. Given the relationship between the parties, the Court finds that being guided by Section 27 of the Civil Procedure Act, wherein costs are granted at the discretion of the court, the best option herein is for each party to bear his or her own costs.

Having now carefully considered the available evidence, the exhibits thereto, the written submissions and the cited authorities together with the relevant provisions of law, the court finds that the orders that commends are as follows;-

i. In respect of HCCC No.2018 of 1990, Francis Ndungu Njau is entitled to 1 acre from the suit property which 1. 00 acreshould be partitioned from Githunguri/Kimathi/173.

ii. Further, Francis Ndungu Njuguna is entitled to refund of purchase price of Kshs.385,000/= with interest at court’s rate from the date of filing of this suit to payment in full. The said order is against the Defendant only, in HCCC No.2018 of 1990. He is also entitled to general damages of Kshs.200,000/= with interest.

iii. The Defendant is entitled to prayer No.1 of the Counter-claim and injunctive orders on the remainder of the land after removal of 1 acre for the Plaintiff(Francis Ndungu Njuguna) and 4 acres for the estate of Paulina Gachambi Kariuki.

iv. In respect of Originating Summons No.49 of 2007, the estate of Paulina Gachambi Kariuki represented by George Kagiri Kariuki is entitled to 4 acres from the suit property Githunguri/Kimathi/173, having acquired the same by virtue of adverse possession. The estate is also entitled to prayers No.2 & 3 of the said Originating Summons No.49 of 2007.

v. However, Maria Njeri Kariuki is not entitled to be declared as an owner of 2 acres from the suit property by virtue of adverse possession. She can only inherit from the estate of Paulina Gachambi Kariuki just like the other siblings.

vi. Each of the party herein to bear his/her own costs.

It is so ordered.

Dated, Signed and Delivered at Thika this 28th day ofJune 2019.

L. GACHERU

JUDGE

28/6/2019

In the presence of

Mr. Wanjohi holding brief for Mr. Gachoka for Plaintiff in HCCC No.2018 0f 1990.

M/S Njuru holding brief for Mr. Kinuthia for 2nd Plaintiff in Originating Summons No.49 of 2007

George Kagiri Kariuki representing 1st Plaintiff in Originating Summons No.49 of 2007.

No appearance for 1st Defendant

Mr. Wanjohi holding brief for Mr. Gachoka for 2nd Defendant on Originating Summons No.49 of 2007

Lucy - Court Assistant

L. GACHERU

JUDGE

28/6/2019