[2017] KEHC 9141 (KLR)

REPUBLIC OF KENYA

IN THE HGH COURT OF KENYA AT MERU

E & L NO. 110 OF 2012

KABIRITHIA M'ETHIRANGE...................................................PLAINTIFF

VERSUS

SARAH LEANDREW (Sued as legal representative of

LEANDREW KARURU THARANGE (deceased)..........DEFENDANT

J U D G M E N T

Plaintiff had initially sued Sarah Leandrew as the legal Representative of Leandrew karuru Tharange (deceased) as 1st defendant and Mwongera David M'Muyiri as 2nd defendant on 02:19:12. Plaintiff amended his pleadings on 03:02:14 whereby he withdrew his case against the 2nd defendant.

In the pleadings, he has identified 1st defendant (hereinafter referred to as defendant) as a wife of the deceased and as the legal representative of the estate of deceased Leandrew Karuru Tharange.

Further, Plaintiff has stated that 1st defendant is the registered owner of land parcel No. 6791, 930 and 1915 Akirangondu "A" adjudication Section as a trustee of the family He also states that defendant is the registered owner of land parcel No. 1667 Akirangondu "A" Adjudication Section which land measures 1:00 acres. He further avers that after the death of their father, defendant subdivided the suit land into numerous plots and constructed a permanent house.

Plaintiff's claim against defendant is for ;

(a) A permanent orders of injunction restraining the defendants whether by themselves their agents and/or any person working under their instructions from disposing of harvesting the plaintiff’s miraa, demolishing the plaintiff's houses evicting the plaintiff from his father's land and/or in any way interfering with the plaintiffs proprietary rights and occupation of the plaintiff 's late father’s parcels of land Nos. 6791, 1667, 1915 and 930 Akirang'ondu "A", Adjudication section.

(b) A declaration that the defendant owns land parcel number 930 and 1915 Akirang'ondu "A" adjudication section in trust of the plaintiff.

(c) An order cancelling subdivisions for parcel number 6791, 1667, 405, 1915, and 930 Akirang'ondu "A" Adjudication Section.

(d) A declaration order restoring all parcel numbers; 6791, 1667 1915 and 930 Akirang'ondu "A" adjudication section to the original owner, M'ETHARANGE M'MUKIRA (deceased).

The defendant filed a statement of defence on 31:07:13 where she states that she is not the administrator of her husband’s estate and that her husband died in 2008. She further states that her husbands father had died in 1968 and had no land of his own, that all her husband's land is still registered in his names and no Succession Cause has been filed.

Defendant further states that plaintiff his deceased brother (Leandrew Karuru) and their other brothers Raphael Ngore, Jairus Muchiri, Theuri M'Ethirange and George M' Ethirange all gathered their respective portions of land where by Plaintiff and George M'Ethirange gathered most of their land in Akirangondu "B" adjudication Section while the 1st defendant's husband and the other brothers gathered land at Akirangondu "A" Adjudication Section. Defendant therefore prays that the suit be dismissed.

When the matter came up for hearing on 26:04:17, defendant and her Advocate were absent although service had been effected. The matter proceeded Ex-parte.

PLAINTIFF' S CASE

Plaintiff's case is that his father (Ntwetherange) died in 1966 when Plaintiff was very young as he was born in 1955. His elder brother one Leandrew Karuru is the one who was registered as the proprietor of the family land, during the demarcation era in 1969.

Plaintiff in his testimony stated that the land was in two areas . There was a parcel in Adjudication area called B which was 3 1/2 acres. The other was in "A" Adjudication area which initially he had said it was 5. 8 acres but later clarified that it was 4. 8 acres

He further stated that his brother ( Leandrew Karuru) allocated him the land in the "B" section which place is arid land and he then gave him one acre in the "A" Section.

Plaintiff stated that he didn't have records of the parcels of land in possession of his brother but he sought the intervention of elders known as ishiaro (in meru) . With this kind of intervention, Leandrew Karuru did give plaintiff the record of the land parcels which record is in form of a small booklet and which plaintiff produced as exhibit 1.

Plaintiff avers that the original parcel of land in "A" Section was No. 930 which was 4. 8 acres, but the the land was in several separate portions. One portion had 2 acres and 20 points, another had one acre, another still had one acre, ( where he was given ) and another had 20 points and another had 50 points. He says that the land number 930 was changed with resultant parcel numbers being 6791, 1667 1915 and 930. The parcel No. 1667 is the one he utilizes and is one acre. However, he only uses half of that land with the other half being used by the family of his deceased brother (Leandrew Karuru) . Those pieces of land are the ones he wants to share equally with his brother's family, and that is why he has sued his brother's wife Sarah Leandrew, since his brother died about 8 years ago.

He further states that for the "B" Section , they divided the land equally. He also added that the parcels of land have no title deeds and that the issue was being handled at Maua Land Adjudication Offices. He also says that the relevant consent was obtained to file the suit.

Plaintiff called one Amalia Mukomugaa as his witness. She testified that she knows the Plaintiff as they hail form the same village . Her evidence is that Plaintiff stays on the land he is claiming and that Sarah, wife of Plaintiff's deceased brother also stays on the land. She avers that she did ear plaintiffs father saying that his land was to be divided equally between Plaintiff and Leandrew Karuru (Plaintiff"s brother).

Analysis and findings

From the record, it is clear that Plaintiff and defendant are relatives whereby defendant is a wife of Plaintiff's brother, Leandrew Karuru who is deceased. Plaintiff’s claim is based on customary trust.

In paragraph 2 of the amended Plaint, Plaintiff has sued defendant as a legal representative of the estate of Leandrew Karuru (Deceased). Under Section 3 of the Law of succession Act,"representation"means the probate of a will or the grant of letters of Administration. The forms of grant are provided for under section 53 and 54 of the said Act.

Plaintiff has not adduced evidence to show how defendant came to be the legal representative of deceased's estate. Such capacity is acquired by operation for the law, and hence a grant is essential In proceedings before the court.

A grant is however not necessary in proceedings before the Land Adjudication officer; See section 13 of the Land Consolidation Act “ Every individual personclaiming any right or interest in any land within an adjudication section, and any person whose presence is required by a Committee or Arbitration Board, shall attend in person,” In Tobias Achoda Osidi & 13 others vs.Cypriano Otieno Ogola & 6 others H.C.C.C NO.4 of 2011 (kisii), Judge Okongo observed that;

“A claim for an interest in land made under the Land Adjudication Act, Cap. 284, Laws of Kenya , following the declaration of an area as an Adjudication Area or an Adjudication Section cannot be equated to a claim before this court. A claim under the Act pursuant to section 13 thereof can be made by “every person who considers thathe has an interest in land within an adjudication section”. A claim under section 13 of the Act can be made by successors of a deceased person and not necessarily the deceased’s legal representatives.”

It is pertinent to note that the operations of the two acts (land consolidation act and land adjudication act are almost similar).

I find that the defendant has therefore not been properly sued and the suit fails on this ground.

What if the defendant had been properly sued?. Would Plaintiff's case on customary trust have succeeded? I find that there are weak and or missing links in plaintiff's case which renders the case unenforceable on the basis of customary trust.

Firstly, a question arises as to the existence of some of the parcels of land mentioned. Plaintiff has told the Court that there are no titles in respect of the aforementioned parcels of land namely 6791, 1667, 1915 and 930 at Akirangondu "A" and ‘’B” Adjudication Section. He says his brother never allowed him to get to know the particulars of the said parcels of land. His fall back is the document he produced as Exhbit 1 .

I have perused the booklet. It is a note book. Plaintiff has stated that it is from lands office. I am aware that such records are recognized as evidence of claims to rights and interests in land in adjudication processes. Further, the discernible records in the book are as follows: -

(a) S/No. 489 KABIRITHIA THERANGE.

(b) S/No. 1667 KABIRITHIA THERANGE 1:00 acre from S/No. 930.

(c) P/No. 414 0. 5. Acres and P/No. 2377 1. 26 Acres KABIRITHIA THERANGE.

The particulars of parcel No. 6791 and 1915 are not captured . The particulars of the remainder of the land in 930 are also not captured. This court is therefore not able to discern the rights and interests of the plaintiff in so far as the records of the notebook are concerned.

Secondly, a question arises regarding the acreage of each parcel of land. Plaintiff had stated in his evidence that the parcels all add up to 4. 8 acres as follows: -

1. Parcel with 2 acres and 20 points ( the longest)

2. Parcel with 1 acre

3. Parcel with 1 acre (1667 where he resides).

4. Parcel with 20 points.

5. Parcel with 50 points .

6. Parcel with 50 points

This adds up to 4. 7 acres. However, as he was concluding his evidence, he stated that the largest portion had 1. 20 acres.

Save for the parcel 1667 where he resides, he doesn't know which parcel has what acreage. To this end he had told the court that “I actually don’t know the current acreage of the other portions of land as the lands people have refused to tell me”.It is clear that the parcels of land the plaintiff is mentioning were still in the process of consolidation. That is why some portions are very small. This court is not the proper forum to accomplish that process of consolidation and recording of rights. The process falls squarely in the ambit of the Land Consolidation Act.

Thirdly, I find that the document produced by Plaintiff as Exhibit 1 shows that Plaintiff owns land at AKirangondu "B" which is consistent with his evidence that his brother had given him land at Akirangondu "B". Plaintiff has stated that this is Arid land and that he has shared this land equally with his brothers family. There is however no tangible evidence indicating that indeed the land at Akirangando B is shared out equally between Plaintiff and defendant.

Fourthly, I find that the evidence of PW2 has painted a picture of a false claim. PW2 had set out to give similar evidence to that of plaintiff. The court however sought to know how old she is. She said she is 45 years old which means, she was born around 1972.

However, she went ahead to state that she knew plaintiff's father who died in 1966 and that by then she was 15 years old. When the Court sought. to know her age through her National Identity Card and or voters card, she became hesitant then she informed the Court that she had none of those documents.

At some point, PW2 told the the court that she was fetching water in a river when she heard plaintiff's father saying that his land was to be shared between plaintiff and his brother and that she actually heard this when she went to get tobacco from the house of Plaintiff's father. PW2 came out as an untruthful witnesses whose evidence was tainted with false hood and the net effect was actually to discredit plaintiffs case.

Fifthly, the court has considered the issue of kinship (family). There is a defence on record where by defendant has indicated that Plaintiff had brothers Raphael Ngure, Jairu, Muchiri, Theuri M' Ethirange and George M' Ethirange. Is this true?. Plaintiff’s claim is to share his fathers land equally with defendant. He ought to have clarified whether he has other siblings or not. The fact that Plaintiff was silent on this issues shows that he is not candid.

From the foregoing findings, it is clear that plaintiff has not demonstrated that he has a rightful claim based on customary trust as against the defendant.

Conclusion;

I find that this is a case which was already lodged at the land adjudication office going by the consent letter dated 18:09:12. The consent was given pursuant to section 8 (1) of the land consolidation Act ( cap 283 laws of kenya). From that consent letter, the case stalled because of succession and injunction cases. Plaintiff has avoided any mention of the proceedings before the land adjudication offices.

There is a good reason as to why Cap 283 was enacted .The preamble there of states that its;

“An Act of Parliament to provide for the ascertainment of rights and interests in, and for the consolidation of, land in the special areas; for the registration of title to, and of transactions and devolutions affecting, such land and other land in the special areas; and for purposes connected therewith and incidental thereto.”

The act has a dispute resolution mechanism that is suited for cases as the one at hand. Plaintiff ought to have allowed the adjudication process to take its course and only come to Court by way of Judicial Review if he was dissatisfied by the decision making process.

I conclude that Plaintiff rushed to Court prematurely. I proceed to give orders as follows;

i. Plaintiffs case is unmerited and the same is dismissed .

ii. Orders of Injunctions ( if any) are hereby discharged.

iii. Plaintiff is condemned to pay costs of the suit.

iv. The proceedings before the Land Adjudication officer are to continue to their logical conclusion.

DELIVERED, DATED AND SIGNED AT MERU THIS 12TH DAY OF JULY, 2017

IN THE PRESENCE OF:

C:A Janet

Plaintiff present

HON. L. N. MBUGUA

JUDGE