[2005] KEHC 2771 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAKURU

CIVIL CASE NO. 210 OF 2004

JANE MUTHONI NGUGI……………………..……PLAINTIFF

VERSUS

JANE WAMBUI WARUTERE……………..…….DEFENDANT

RULING

The Plaintiff, Jane Muthoni Ngugi, has made an application under the provisions

of Order XXXIX Rules 1, 2, 3 and 9 of the Civil Procedure Rules, Sections 3A and

63(e) of the Civil Procedure Act seeking the orders of injunction from court to restrain

the Defendant Jane Wambui Warutere from entering or remaining in all that piece or

parcel of land known as Nyandarua/Simbara/31 or any part thereof and further be

restrained from interfering with the Plaintiff’s quiet enjoyment of the said parcel of land

pending the hearing and determination of the suit. The grounds in support of the

application are that the Defendant being a trespasser had committed the criminal

offence of forceable entry onto the Plaintiff’s land. The Plaintiff has further stated that

she is the registered owner of the suit land. The application is supported by the annexed

affidavit of Jane Muthoni Ngugi and Arthur Waweru. The Plaintiff swore two further

affidavits in support of her application. Arthur Waweru also swore a further

supplementary affidavit. The Defendant filed grounds of opposition. She further swore

an affidavit in reply to the Plaintiff’s application. A Mr. Warutere Mbatia Gatheru has

sworn an affidavit on behalf of the Defendant in opposition to the application.

At the hearing of the application, Miss Mathenge Learned Counsel for the

Plaintiff submitted that the Plaintiff was the absolute registered proprietor of the suit

land. It was contended on behalf of the Plaintiff that the Defendant was a trespasser

which fact it was alleged had not been controverted by the Defendant in her replying

affidavit. It was further contended that the only reason the Defendant was trespassing

on the said parcel of land was that she was claiming to have been married to one Arthur

Waweru Ngugi, who is a son of the Plaintiff. The Plaintiff concedes that the Defendant

once cohabited with her son between the years 1981 and 1985 but had been separated

from the said son since 1985. It is the Plaintiff’s argument that the Defendant, without

any colour of right, forcefully entered into the said parcel of land in 2002. The Plaintiff

submitted that since coming back, the Defendant had harassed the Plaintiff and her

other children to the extent that intervention from the Provincial Administration had

been sought in vain. It was further contended on behalf of the Plaintiff that she had not

given her consent for the Defendant to reside on the suit land. The Plaintiff argues that

the suit land belonged to her and not her said son. The Plaintiff urged the court to allow

her application for injunction pending the hearing and determination of the suit. The

Plaintiff conceded that although she had filed another suit before the Nyahururu

Principal Magistrate’s Court, she withdrew the same when she realised that the said

court did not have jurisdiction to hear and determine the dispute. Learned Counsel for

the Plaintiff submitted that the fact that the Plaintiff was sickly and of advanced age,

was more the reason why the application should be allowed.

Mr Nderitu, Learned Counsel for the Defendant submitted that the Plaintiff had

filed another suit which was still pending before the Nyahururu Principal Magistrate’s

Court being Civil Suit No. 199 of 2004. It was the Defendant’s further submission that

there was no proof that the said suit had been withdrawn. Mr Nderitu further submitted

that the reliefs sought in the said suit were similar to the reliefs sought in the suit. He

further argued that the fact of the existence of the said suit had not been disclosed in the

plaint. He further submitted that the Defendant entered the suit land in 1980 when she

was married to the son of the Plaintiff. It was contended on behalf of the Defendant that

even if the court were to accept that the Defendant vacated the suit land in 1985 and

returned in 2002, the Plaintiff had not given any explanation why she did nothing until

she filed this suit two years later. The Defendant argued that to grant the orders sought

by the Plaintiff in the application would in effect determine the suit. The Defendant

further argued that she had raised triable issues which ought to be considered on merit.

The Defendant submitted that the Plaintiff had not established a prima facie case nor

shown that she would suffer irreparable damages were the injunction not be granted by

the court.

Miss Mathenge in response submitted that the fact that the Plaintiff had not

disclosed the existence of the suit at Nyahururu should not be considered to her

detriment as the issue could be cured by the amendment of the plaint. Learned Counsel

submitted that since the act of trespass was continuous, the Plaintiff was suffering a loss

which could not be quantified.

I have carefully read the application and the affidavits filed both in support and

in opposition of the application by the parties to this suit. I have also considered the

rival submissions made by Counsels on record. The issue for determination by this

court, is whether, on the facts of this case, the Plaintiff ought to be granted the orders of

injunction sought. It is not disputed that the Plaintiff is the registered owner of all that

parcel of land known asNyandarua/Simbara/31measuring 27. 5 Hectares or thereabout.

It is further not disputed that the Defendant, between the year 1981 and 1985 resided on

the suit land as the “wife” of a son of the Plaintiff known as Arthur Waweru Ngugi also

known as Weru. Although the said Arthur Ngugi denies that he was legally married to

the Defendant, he however admits that he cohabited with the Defendant and the

cohabitation resulted in three issues being born namely John Ngugi, Eunice Muthoni

and Francis Mutahi. It appears that after the year 1985, the Defendant’s and the said

Arthur Ngugi’s relationship deteriorated to the extent that for sometime the two were

separated. In the course of the separation the said Arthur Ngugi married another

woman called Jane Wangui Munge under the Marriage Act at the Superindent

registrar’s office in Nakuru on the 15th November 1996.

There is conflicting evidence from the parties to the suit whether or not the said

Arthur Ngugi resided on the suit land with the Defendant after his marriage to the said

Jane Munge. What is not however in dispute is that since the year 2002 the Defendant

has been residing on the suit land on the portion which has been identified to belong to

the said Arthur Ngugi. In mid 2004, a decision was made by the said Arthur Ngugi

with his brothers to remove the Defendant from the suit land ostensibly because the

Defendant was not a member of the family of the Plaintiff. The reason that the said

Arthur Ngugi and his sibling have relied on to seek the removal of the Defendant from

the suit land is twofold; one, that the Defendant was not a lawful wife of the said Arthur

Ngugi and secondly, because the suit land, which they are all residing in belonged to

“another” person, that is the Plaintiff who is their aged mother.

I will address the two issues and in addressing them determine the application.

The Defendant has deponed that she was married to the said Arthur Ngugi, the son of

the Plaintiff in the year 1980 under the Kikuyu Customary Law. On the other hand the

said Arthur Ngugi has deponed that he never at anytime married the Defendant but only

cohabited with her between the years 1981 and 1985. The two however agree on one

thing: The three children born during this period of their relationship are their

legitimate children. The said Arthur Ngugi and to a larger extent the Plaintiff, are under

a mistaken belief that because the Defendant was not married under either the Kikuyu

Customary Law or the Statute, no valid marriage existed between the Defendant and the

said Arthur Ngugi. From the evidence placed before me, and for the purpose of this

application, I hold that the Defendant and the said Arthur Ngugi are common law

husband and wife by virtue of their long period of cohabitation. The Defendant is

therefore entitled to all privileges of marriage, including the right to be housed by the

said Arthur Ngugi. I refuse to be persuaded that just because the said Arthur Ngugi has

married another woman under Statute, then the marriage to his common law wife

ceased to exist. To do so would result in the children born of the said relationship being

made illegitimate. Such a prospect would be a travesty of justice.

Having held that the Defendant and the said Arthur Ngugi, the son of the

Plaintiff, are husband and wife, the only issue left for determination by this court is

whether the Defendant is entitled to reside in the suit land registered in the name of the

Plaintiff. From the affidavits filed and also the submissions made, the sons of the

Plaintiff and their wives and children reside on the suit land. The Plaintiff has caused

the suit land to be sub-division and each of his son including the said Arthur Ngugi

occupy an identifiable portion of the said parcel of land. According to the Defendant,

she has been residing on the portion of land which has been identified as belonging to

her husband. She has even deponed that she is residing on the said portion belonging to

her husband with her co-wife Jane Wangui.

It is the Plaintiff’s case that being the registered owner of the suit land, she had a

right to determine who can live on the suit land. I however humbly disagree. In the

African set up, and the Kikuyu being one of the African Communities, once a son has

been shown a portion of land where he has erected his own house, his parents cease to

have any interest on the said parcel of land. The sons become beneficial owners whilst

the parents hold the title in trust for their said sons. In this particular instance, I do hold

that the Plaintiff is holding the title of the portion of land where the Defendant resides in

trust for the Defendant, her husband and their children. The Plaintiff therefore has no

legally recognisable right to seek to remove the Defendant from the said suit land. The

Plaintiff has therefore failed to establish that she has a prima facie case to entitle her to

the orders of injunction sought.

In conclusion, I wish to refer to the suit filed by the Plaintiff before the

Nyahururu Principal Magistrate’s Court. When the Plaintiff filed this suit, she did not

disclose that she had filed another suit over the same subject matter at Nyahururu

Principal Magistrate’s Court. In her submission before court, the Plaintiff stated that

she had withdrawn the case before filing the present suit. However no evidence was put

before this court, in form of a duly indorsed notice of withdrawal of suit, that the said

suit had been withdrawn. When the Plaintiff swore the verifying affidavit to the Plaint

that there was no other suit pending, she was not deponing the truth. The Plaintiff has

therefore ridiculed the due process of the court. I am minded to strike out the Plaintiff’s

suit but due to the nature of the matter in dispute, I would refrain from taking such a

drastic action. I however order that the Plaintiff formally withdraws the case pending at

Nyahururu and make an appropriate application for amendment of her plaint to rectify

her pleadings to conform with the law before the suit can be set down for hearing.

For the reasons stated, it is evident that the Plaintiff’s application lacks merit and

the same is dismissed with costs.

DATED at NAKURU this 21st day of January 2005.

L. KIMARU

JUDGE