[2023] KEELC 18423 (KLR)

Kipyego & another v Kipyuk (Environment and Land Appeal E017 of 2022) [2023] KEELC 18423 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEELC 18423 (KLR)

Republic of Kenya

In the Environment and Land Court at Iten

Environment and Land Appeal E017 of 2022

L Waithaka, J

June 27, 2023

Between

Isaac Kipyego

1st Appellant

Collins Choge

2nd Appellant

and

Kimoi Tamining Kipyuk

Respondent

(Being an Appeal from the Judgment delivered on 27th January 2021 by Hon. C. Kutwa in SPM Court in Iten E&L Case No. 29 of 2018)

Judgment

Introduction 1. By a plaint dated October 24, 2018 and filed on October 24, 2018, the respondent herein instituted a suit in the lower court seeking judgment against the appellants herein for inter alia an order of eviction of the appellants from the parcel of land known as Kibargoy/Lower Cheptebo/329 measuring 5. 02 hectares.

2. The respondent’s case was premised on the ground that the defendants (now appellants) unlawfully and without any reasonable cause entered into the suit property and dealt with it in a manner prejudicial to her interest therein thereby occasioning her loss and damage.

3. Terming the appellants’ entry into the suit property trespass to land, the respondent urged the court to grant her the reliefs sought.

4. The defendants filed a joint statement of defence dated October 2, 2019, inter alia admitting that the plaintiff/respondent is the registered proprietor of the suit property but explaining that the plaintiff gifted portions of it to her children who sold their share to them. In essence, the appellants denied the respondent’s contention that their entry into the suit property was unlawful and/or amounts to trespass to land. The appellants further averred that upon purchase of their respective portions of the suit property, they made massive developments thereon.

5. The respondent filed a reply to defence dated November 12, 2019 denying the appellants’ contention that she gifted portions of the suit property to her children who subsequently sold their shares to them or to other people from whom they acquired portions of the suit property from. The respondent further contended that the purported acquisition of the suit property from the persons she purportedly gifted the land was unlawfull, null and void.

Hearing 6. When the case came up for hearing, the respondent who testified as P.W.1 relied on her statement dated October 24, 2018 after it was adopted as her evidence in chief. She produced the title deed issued to her in respect of the suit property as Pexbt 1.

7. Upon being cross examined by the counsel for the appellants, the respondent stated that the land is hers and that she did not tell her sons to sell it; that her sons did not sell it and that if they did, they should return the money. She acknowledged that the 1st appellant had been on the suit property since 2014 and that he has constructed a house thereon. She also acknowledged that the 2nd defendant has been on the suit property and has constructed thereon.

8. The 1st appellant who testified as D.W.1, relied on his statement dated 2nd October 2019. He produced the agreements dated July 1, 2010, April 29, 2014 and August 21, 2014 as Dexbt 1, 2 and 3 respectively. He also produced photographs of the developments effected on the suit property as Dexbt 4. He informed the court that he bought a portion of the suit property at Kshs 170,000/ and that he was a second buyer. He further informed the court that he built houses in the suit property in 2015 and that the respondent never stopped him from developing the houses.

9. In re-examination, the respondent stated that the appellants should leave the land.

10. The 2nd appellant, who testified as D.W.2, relied on his statement dated October 2, 2020. He informed the court that he bought his portion of the suit property from the plaintiff’s son at Kshs 165,000/-. He took possession in 2010. From the agreement, it is the plaintiff who sold the land to him. He produced the agreement dated July 1, 2010 (Dexbt 1) and stated he had constructed rentals and shops in the suit property. He also produced photographs of the developments he has effected on the suit property as Dexbt 5. He informed the court that the respondent never stopped him from constructing on the land yet she was aware that he bought the land.

11. Upon being cross examined by the plaintiff, the 2nd defendant stated that he bought the land from the plaintiff/respondent and her son.

12. On the basis of the foregoing evidence and the submissions filed by the parties to the suit, the Learned Trial Magistrate (LTM) entered judgment in favour of the respondent and against the defendants/appellants for an order of eviction and costs of the suit. In so doing, the LTM inter alia stated:-“There is no dispute that the plaintiff is the registered proprietor of the parcel of land known as Kibargoy/Lower Cheptebo/329. The defendants alleged that they bought the land from the plaintiff’s sons. The plaintiff claims that the defendants trespassed onto her land and as a result she has suffered loss and damage. It is the defendants’ testimony that they bought parts of the suit property and that the plaintiff was aware. In their defence dated 2. 10. 2019, the defendants admit that the suit land is registered in the name of the plaintiff. They also admit that they did not buy the land from the plaintiff who is the registered owner. It goes without saying that the sons of the plaintiff were not the registered owners of the land and have no interest in the land..................................................The court has considered the entire pleadings in respect to the prayer for injunction and an eviction order. The court is satisfied that the plaintiff is entitled to an order of eviction....I do therefore, issue an order for eviction. The plaintiff will also have costs of the suit.

13. Dissatisfied with the decision of the LTM, the defendants/appellants appealed to this court on 9 grounds which can be reduced to one broad ground namely the LTM erred by entering judgment in favour of the plaintiff/respondent.

14. Pursuant to directions given to the effect that the appeal be disposed off by way of written submissions, the appellants filed submissions which I have read and considered. At the time of writing this judgment, the respondent had not filed submissions, and if she had the same were not on the court file.

The Appellants’ Submissions 15. In their submissions the appellants have submitted that:-As at 3rd November 2014, when the respondent was registered as the proprietor of the suit property, the appellants had already entered into agreements for purchase of portions of the suit property with persons with interest in it on account of the property having been family land at the time. The appellants fault the LTM for having given casual and/or inadequate consideration of the evidence they gave showing that they bought the portions of the suit property from the plaintiff’s children before it was registered in the name of the plaintiff/respondent.

16. Pointing out that the respondent did not raise any issue concerning their interest in the suit property until she obtained title to the whole of the suit property, the appellants fault the LTM for having failed to find that the registration of the respondent as the proprietor of the suit property is subject to interests not requiring noting in the register such as customary trusts.

17. It is the appellants’ case that the plaintiff/respondent held the suit property in trust for the sellers, her sons.

18. The evidence of the appellants to the effect that they bought portions of the suit property from the respondent’s sons, whom the respondent had given their share of the suit property, is said to be uncontroverted.

19. Maintaining that the sellers are children of the plaintiff/respondent, it is reiterated that registration of the suit property in the name of the respondent is subject to a trust in favour of her children.

20. Asserting that the suit property was family land when it was sold to them, the appellant submit that the respondent’s children had capacity to sell their share of the family land. Reliance is placed on the decision in the case of Isaac M’Inanga Kiebia vs. Isaaya Theuri M’lintari & another (2018) eKLR where the Supreme Court inter alia held that registration of land can be subject of customary trust, where it is proved to exist.

21. It is further submitted that the appellants cannot be trespassers to the suit property as they were innocent purchasers of the portions they are in possession of for value without notice.

22. The LTM is faulted for having failed to find that the suit property was family land in respect of which customary nortions of justice would apply. In that regard reliance is placed on the case of Twalib Hatayan Twali & Another vs. Said Saggar Ahmed Alheidy & others (2015) e KLR where the law on trusts is expoused.

23. The LTM is said to have delivered a judgment which is against the law and the weight of the evidence on record.

24. It is the appellants’ case that the suit property ought to be subdivided and the portions they purchased transferred to them. According to the appellants’, this court can issue consequential reliefs and directions in the interest of justice.

25. Based on the decision in the case of Benja Properties Ltd v. Syedna Mohammed Burhannudin Sahed & 4 others (2015) eKLR where it was held that all titles to land are based on possession in the sense that the title of man seised prevails against all who can show no better right to seisin; it is submitted that there is no evidence that the appellants were trespassers to the suit property to warrant issuance of eviction orders against them.

Analysis and Determination 26. In exercise of the duty vested in me as the first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard seeSelle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123, Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348.

27. From the evidence adduced in the case hereto, it is not in dispute that the appellants gained interest in the portions of the suit property they occupy by way of purchase of the portions from persons who had bought those portions from the respondent’s children or by purchasing them from the respondent’s children. The evidence also shows that at the time the appellants acquired interest in portions of the suit property they occupy, the suit property had not yet been registered in the name of the respondent.

28. Upon purchase of the portions of the suit property they occupy, the appellants took possession and effected massive developments thereon; built shops and rentals.

29. The totality of the evidence adduced before the lower court also shows that the respondent knew about the occupation and use of the suit property by the appellants but did not take any action against them until after she obtained title in respect thereof.

30. Whereas ordinarily an appellate court would not differ with a trial court on an issue of fact, in the circumstances of this case where the LTM did not take into account that the suit property was not registered in the name of the respondent when it was sold to the appellants and where the conduct of the respondent negates a finding that she was the absolute proprietor of the suit property as at the time the appellant bought portions thereof; I find and hold that there is a case for interference with the decision of the LTM to the extent that he determined that the appellants entry into the suit property and occupation of portions thereof amounted to trespass to land.

31. Trespass to land connotes illegal or unlawful entry to land belonging to another person. In that regard see the case of Ochako Obinchu v. Zachary Oyoti Nyamogo (2018)e KLR where it was stated:-“Trespass has been defined as any unjustifiable intrusion by one person upon the land in possession of another.....The onus is on the plaintiff to prove that the defendant invaded and occupied the same without any justifiable cause”

32. In the circumstances of this case, no evidence was led capable of proving that entry of the appellants into the portions of the suit property they occupy was wrongful. The evidence adduced showed that the appellants entered into the suit property pursuant to sale agreements executed between them or other persons who sold the land to them having bought the portions from the respondents’ children at a time when the suit property was not registered in the name of the respondent.

33. I reiterate that the totality of the evidence adduced in the case before the lower court shows that the respondent knew of the appellants entry, occupation and use of the suit property, yet she did not stop them or even complain against their entry into the suit property. The respondent did not give any reason why she did not take any action against the appellants’ entry into the suit property and erection of structures thereon. The only reasonable inference that can be drawn from the respondent’s conduct is that she had sanctioned the sale of the suit property by her children. If this was not the case, she would have taken action against the appellants by at least complaining to the police or the local administration. Her conduct, and which conduct amounts to evidence under Section 3 of the Evidence Act, Cap 80 Laws of Kenya, negates a finding that she was not aware or she had not sanctioned the dealings in the suit property by her children.

34. Having conducted herself in a manner showing that her children had authority to deal with the land in the manner they did, the respondent is estopped from claiming that her children had no authority to deal with the suit property merely because she was eventually registered as the proprietor of the suit property. In that regard, see the decision in Titus Muiruri Doge vs. Kenya Canners Ltd (1988)eKLR where A.B Shah J., (as he then was) quoted with approval the statement by Lord Denning thus:-“It is a principle of justice and equity. It comes to this: When a man by his words or conduct has led another to believe that he may safely act on the faith of them and the other does act on them he will not be allowed to go back on what he has said or done when it would be unjust or inequitable for him to do so”.

35. In the circumstances of this case, where the respondent was registered as the proprietor of the suit property at a time when the appellants had acquired portions thereof from her children with her sanction or acquiescience, I do find and hold that her registration is subject to an overriding interest in favour of the appellants as persons in actual occupation of portions of the suit property arising from their purchase of portions thereof. In that regard see Section 28 of the Land Registration Act, 2012 which provides as follows:-“Unless the contrary is expressed in the Register all registered land shall be subject to the overriding interest without being noted in the register which include rights acquired or in the process of being acquired by virtue of any written law relating to Limitation of Actions or Prescriptions.”

36. That being the case, the respondent cannot remove the appellant from the suit property on the alleged trespass to land.

37. I think I have said enough to demonstrate that the appellants have made a case for setting aside the judgment of the lower court declaring them trespassers to the suit property and ordering their eviction therefrom. Consequently, I set aside the judgment of the lower court and substitute it with an order dismissing the plaintiff/respondent’s case at the lower court with costs to the defendants/appellants.

38. I also award the defendants/appellants the costs of this appeal.

39. Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED AT ITEN THIS 27THDAY OF JUNE, 2023. L. N. WAITHAKAJUDGEJudgment delivered virtually in the presence of:-Ms. Martin holding brief for Mr. Arusei for the AppellantKimoi Tamining Kipyuk – Respondent (unrepresented)Court Asst.: Christine