[2023] KEELC 18521 (KLR)

Kipyegon v Chumo & another (Environment & Land Case 10 of 2020) [2023] KEELC 18521 (KLR) (6 July 2023) (Ruling)

Neutral citation: [2023] KEELC 18521 (KLR)

Republic of Kenya

In the Environment and Land Court at Kericho

Environment & Land Case 10 of 2020

MC Oundo, J

July 6, 2023

Between

Philip Rop Kipyegon

Plaintiff

and

Samwel Kipkemoi Chumo

1st Defendant

Reuben Kipkoech Rop

2nd Defendant

Ruling

1. The Plaintiff herein filed suit vide a Plaint dated the 5th March 2020, against the Defendants seeking an order of injunction restraining the 1st and 2nd Defendants by themselves and their agents from subdividing, transferring, selling and or doing any other act that prejudices the Plaintiff’s right to equal use and enjoyment of Kericho/Kabartegan/1013, 1135, 1851 & 1852 (formerly Kericho/Kabartegan/74). The Plaintiff also sought for an Order revoking all the title deeds that had been issued against Kericho/Kabartegan/74, being Kericho/Kabartegan/1012, 1013, 1135, 1851 & 1852 and directing that the same be sub-divided into seven equal portions, as well as for any other relief that the court would deem fit and just to grant and costs for the suit.

2. In response to the Plaint, the Defendants filed their defence and counterclaim dated 21st September 2020 denying the contents as disposed in the Plaintiff’s Plaint whilst stating that in the year 1997 or thereabouts their deceased father caused land parcel Kericho/Kabartegan/74 to be subdivided into Kericho/Kabartegan/1012 and Kericho/Kabartegan/1013 and thereafter caused land parcel Kericho/Kabartegan/1013 to be transferred and registered in the name of the 1st Defendant absolutely.

3. That subsequently in the year 2002 or thereabouts their father then caused land parcel Kericho/Kabartegan/1012 to be subdivided into 3 namely, Kericho/Kabartegan/1133,1134 & 1135 out of which he had transferred Kericho/Kabartegan/1135 & 1133 to the 1st and 2nd Defendants respectively, to hold in trust for themselves and their siblings from the 2nd house.

4. That the 2nd Defendant then caused land parcel Kericho/Kabartegan/1133 to be subdivided into two being Kericho/Kabartegan/1851 & 1852, to which he registered Kericho/Kabartegan/1852 measuring 0. 5 in the name of his son Victor Koech because the said portion constituted his entitlement. That he had held Kericho/Kabartegan/1851 in trust for himself and the Plaintiff together with the other siblings and each of them was entitled to their respective share of 0. 95 Acres which he was ready and had been willing to share out.

5. The 1st Defendant had further averred that although land parcel Kericho/Kabartegan/1135 measuring 1. 25 acres was registered in his name, he held 0. 25 Acres thereof in trust for his other siblings and the other portion measuring 1 Acre constituted his entitlement.

6. That sometime in the year 2005 he had bought land measuring 1 Acre for his brother Patrick Rop who had subsequently relocated to Kericho/Getarwet/40 that consequently he was entitled to 1 Acre out of land parcel Kericho/Kabartegan/1135 which portion Patrick Rop was entitled to receive.

7. The 2nd Defendant averred that though he had applied for consent to the Kapkatet Land Control Board to subdivide Kericho/Kabartegan/1851 into 4 portions with a view to transferring and distributing the subject land to his other siblings, the Plaintiff had failed to appear before the Kapkatet Land Board and therefore he had sought that the Plaintiff be ordered to sign the mutation form, transfer form and the application for consent form and/or to appear before the Kapkatet Land Control Board with a view of seeking approval/consent for the transfer of 2 portions, one measuring 0. 384 hectors and the other 0. 05 hectors to be excised out of Kericho/Kabartegan/1851 and Kericho/Kabartegan/1133 respectively, and in default, the Deputy Registrar of the court be directed sign all the relevant documents and forms aforementioned on behalf of the Plaintiff.

8. On the 22nd September 2020 the court issued an interim restraining order injuncting the Defendants by themselves or their agents from subdividing, transferring, selling and/or doing any other act that could prejudice the Plaintiff’s rights to equal use and enjoyment of Kericho/Kabartegan/1013, 1135, 1851 & 1852 (formerly Kericho/Kabartegan/74).

9. Parties were then directed to comply with the provisions of Order 11 of the Civil Procedure Rules for the matter to proceed for hearing. Further orders were to the effect that by consent, the surveyor do visit the suit land and file his report. It was while awaiting the filing of the surveyor’s report which took quite a long period of time as the Defendants had no money to finance the exercise that the 1st Defendant herein filed his notice of preliminary objection dated the 11th April 2022.

10. The surveyor’s report dated 21st April 20222 had subsequently been filed in court on the 16th May 2022 wherein on the 26th July 2022 the Plaintiff herein filed a Notice of Motion seeking that the 1st and 2nd Defendants to be compelled to cater for half the cost of the survey amounting to Ksh. 27,500/= and secondly that they be compelled to fence of the compound of their mother and allow her to go back to her matrimonial home.

11. Since this matter was between siblings the same had been forwarded for court annexed mediation to see whether the siblings could come to an amicable settlement. A partial agreement had been reached to the effect that the 1st and 2nd Defendants pay half the cost of the survey amounting to Ksh. 27,500/= to the Plaintiff herein. That their mother Sarah Chuma be allowed to live in her matrimonial home. It was also agreed that the family would build her and their grandmother a house. It had been noted that the 2nd Defendant had subdivided and distributed Kericho/Kabartegan/1133 to all his brothers as per their father’s wish. In line with this partial settlement, the application dated 26th July 2022 had been compromised and what remained for disposal was the Preliminary Objection herein to which the Defendants had raised issues to the effect;

12. That the instant suit was pre-mature, Misconceived, bad in law, incompetent and legally untenable, the transfer pertaining to and/or concerning the original parcel of land having taken place on the 26th November 1997, wherein the instant suit had been filed and/or lodged outside the statutory timelines and therefor Plaintiff's claim was ousted by the provisions of section 4 of the Limitation of Actions Act and section 99 of the Land Act. That further, the Plaint did not disclose any reasonable cause of action against the 1st Defendant. That the Plaintiff was non-suited and the instant Application constituted and/or amounted to abuse of the Court Process.

13. In response to the Preliminary Objection, the Plaintiff filed his Grounds of Opposition on the 1st November 2022 to the effect that the matter had been filed on time and did not offend the statutory period as set out in section 7 of the Limitations of Actions Act and therefore it was good in law, competent and before the Honorable Court rightly for the orders sought. That section 99 of the Land Act provided for the ‘protection of a purchaser’ and that at no time did the deceased dispose of his property to the 1st and/or 2nd Defendants herein for any of them to purport to seek the protection of section 99 of the Lands Act.

14. That the matter herein fell within section 20 of the Limitation of Actions Act wherein the Plaintiff’s suit was seeking for remedies concerning breach of trust by the 1st and 2nd Defendants in respect of Kericho/Kabartegan/74 which the Plaintiff's, Kiprob Arap Chumo (deceased) bestowed by way of transfer for the 1st and 2nd Defendants to hold in trust for their siblings, most of whom had been below the age of majority in 1997 when he started feeling un-well.

15. That the deceased had married two wives and had two parcels of land, namely, Kericho/ Kabartegan/74 and Kericho/Kabartegan/76 which parcels of land he had entrusted on his sons to share equally and transfer to their siblings when they attained the age of majority. That Kericho/Kabartegan/74 had been entrusted to Samwel K. Chumo, Reuben K. Rop and James Rop while Kericho/Kabartegan/76 had been entrusted to Stephen Kiprono Rop.

16. That this being a family and succession related matter, it had no limitations under the law. That Stephen Kiprono Rop who held Kericho/Kabartegan/76 in trust for his siblings had since transferred the same to all his siblings as decreed by his deceased father.

17. Pursuant to directions issued on the 1st November 2022, parties filed their written submissions to which I shall summarize as herein under;

Defendants’ written submissions. 18. In support of their Preliminary Objection,the Defendants had raised their issues for determination as follows;i.Whether the Plaintiff’s suit against the 1st Defendant is barred by Limitation Act.ii.Whether the 1st Defendant is the absolute proprietor of Kericho/Kabartegan/1013 and Kericho/Kabartegan/1135. iii.Whether the 1st Defendant holds in trust title deeds in respect of Kericho/Kabartegan/1013 and Kericho/Kabartegan/1135iv.Who should bear the costs of the suit

19. On the issue for determination as to whether Plaintiff’s suit against the 1st Defendant was barred by the Limitation Act, it was the Defendants’ submission that the Plaintiff lacked the cause of action against the 1st Defendant in that the cause of action arose in the year 1997 and the same elapsed after 12 years and therefore the Plaintiff's suit was time barred and the honorable court lacked jurisdiction to entertain the same. Reliance was placed on the case of Sohanlaldurgadass Rajput &another v Divisional Intergrated Development Programmes Co. Ltd Machakos ELC NO. 50 of 2020 & in the case of Dickson Negige Ngugi v Consulidated Bank Ltd & anotherNakuru ELC No. 583 of 2016.

20. On the issue as to whether the 1st Defendant was the absolute proprietor of Kericho/Kabartegan/1013 and Kericho/Kabartegan/1135, it was the Defendants’ submissions that the 1st Defendant had obtained the land parcels in the year 1997 and 2000 respectively the same having been transferred to him by his late father Kiprop Arap Chumo wherein the said transfers had been absolute. They were not meant for him to hold in trust for his siblings as the same is not captured in the said Title Deeds. Reliance was placed in the decision in the case of Eunice Kemunto Nyaundi & 6 others v Charles Nyangai. Kisii ELC No. 489 of 2015.

21. On the third issue as to whether the Defendant held in trust title deeds in respect of Kericho/Kabartegan/1013 and Kericho/Kabartegan/1135, the Defendant submits that for any party to hold property in trust for the other, there ought to be express indication for the same in the purported document. That there was no such provision in the Title Deeds registered in the name of the 1st Defendant. Reliance was placed on the decision in the case of Martha Thairora Gikundi v Elizabeth Kananu &another. Meru ELC No. 307 of 2014.

22. On the last issue as to who would bear the costs to the suit, the Defendant submitted that costs follow the event and therefore the Court do find that the cost of the suit be provided by the Plaintiff.

23. That the Plaintiff’s suit was pre-mature, misconceived, Bad in law, incompetent and legally untenable because he had his own land parcel and therefore had no claim against the 1st Defendant. That the suit was driven by his hate and jealous aimed at depriving the 1st Defendant his constitutional right. That the Plaintiff herein had no locus standi to bring this suit or to seek orders for the cancellation of the Title Deeds because he was not entitled to any share in the suit property registered in the name of the 1st Defendant.

24. That the Plaintiff’s suit did not disclose any reasonable cause because the pleadings and the P laint were contradictory and had been filed in bad faith. That the Defendants had obtained their title deed through the right channel. That pursuant to the provisions of Order 2 Rule 15 of the Civil Procedure Rules, the suit herein be dismissed for being an abuse of court process.

Plaintiff’s submissions. 25. In opposition to the Preliminary Objection, the Plaintiff framed his issues for determination as follows;i.Whether the Plaint discloses cause of action.ii.Whether or not the suit has been ousted by the operation of section 4 of the Limitation of Actions Act.

26. On the first issue for determination as to whether the Plaint disclosed a cause of action and if it could be struck out, the Plaintiff submitted that his suit was not scandalous, frivolous or vexatious, was not prejudicial, or meant to embarrass or intended to delay the full trial and neither was it an abuse of the court process. That the same disclosed reasonable cause of action as the acts of the 1st and 2nd Defendants were intended to rob him and his siblings of their inheritance. That this was an act of cruelty that ought to be dealt with through the legal process.

27. That the Preliminary Objection offered the 1st Defendant an opportunity to run away from the responsibility of a trustee of land that the Plaintiff's father decreed to be shared equally.

28. That the court do exercise its discretionary powers donated by Order 2 Rule 15 (1) of Civil Procedure Rules, to dismiss the Preliminary Objection as it was frivolous and intended to delay justice. The Plaintiff relied on the findings in Michael Kalani Muatha v Kyalo Mwikya & another [2022] eKLR to buttress his submissions that the striking out of pleadings was a drastic remedy that should only be resorted to where a pleading was a complete sham.

29. On the second issue as to whether or not the suit has been ousted by operation of section 4 of the Limitation of Actions Act, the Plaintiff submitted that their father intended that his first born sons, that is, the 1st and 2nd Defendants hold parcel No. Kericho/Kabartegan/74 in trust for their siblings when he transferred portions of the same to them.

30. That whereas in 1997 their deceased father genuinely transferred Kericho/Kabartegan/74 to the 1st and 2nd Defendants with the hope that the two Defendants would be good trustees to his other sons, his action was a mistake and hence the holding of the title deed in trust by the1st and 2nd Defendants was a fraud that was only discovered by the Plaintiff in 2019 when the Plaintiff and his siblings agitated to have their father’s parcels of land shared equally.

31. That it had been at the land board that the Plaintiff and his siblings had discovered, from consent form filled, that the 1st and 2nd Defendants had wanted to hold portions under their names measuring three acres each and share the parcel under their father’s name to their other siblings where each would get 0. 95 acres and that had been the reason he had filed the current suit. That the Limitations of Actions Act started running after the discovery of the fraudulent thoughts (sic) of the 1st and 2nd Defendants in 2019. The Plaintiff placed his reliance on the provisions of section 26 of theLimitation of Actions Act.

32. The Plaintiff further submitted that from the time when their deceased father had transferred the said land to the 1st and 2nd Defendants, there had been various sub-divisions and transfers over the parcels of land under dispute to the effect that a portion thereof had been transferred to the 1st Defendant’s son, effectively causing the Limitation of Actions Act not to run from the date when the transfer was effected by the deceased in 1997. Reliance was placed on the decision in the case of Kimani Ruchine &another v Swift Rutherford & Co. Ltd &another(1980) KLR 10 where it had been held that the period of limitation starts running a fresh whenever there were changes in the title.

33. The Plaintiff further submitted that the Preliminary Objection ought to be based on the law. That the 1st Defendant had based his claim under section 4 of Limitation of Actions Act whereas the claim in court was a claim to recover land which is was a preserve of section 7 of the Act. That the Preliminary O bjection therefore should be dismissed with costs. Reliance was placed on the decisions in Mukisa Biscuits Manufacturing Co. Ltd n West End Distributors Limited (1969) E.A.696.

34. In conclusion, the Plaintiff submitted that should the court upheld the Preliminary Oobjection and pass adverse possession of land to the 1st Defendant, it would amount to total disregard of the intention of Kiprop Arap Chumo (deceased).

Determination. 35. I have given due consideration to the rival arguments and the authorities cited, I find that the matter before court is between siblings scrambling over their deceased father’s property to which the Defendants have now raised a Preliminary Objection which seems to attack the jurisdiction of the Court to the effect that since Plaintiffs’ suit against the 1st Defendant was barred by the provisions of section 4 of the Limitation of Actions Act and section 99 of the Land Act, the court had no jurisdiction to preside over it.

36. In response, the Plaintiff contended that the matter had been filed on time and did not offend the statutory period as set out in section 7 of the Limitations of Actions Act and therefore it was good in law, competent and before the Honorable Court rightly for the orders sought

37. Applying the principles in Mukisa Biscuit Manufacturing Co. Ltd. v West End Distributors Ltd. (1969) EA 696 to wit that an objection must consists of a point of law which if argued as a preliminary objection is capable of disposing of the suit, I find the matters that arise for determination as being:i.Whether the Preliminary Objection raised is sustainable.ii.Whether the said Preliminary Objection has merit and should be upheld.

38. I have considered the Plaintiff’s Plaint in which he had sought for orders of injunction restraining the 1st and 2nd Defendants by themselves and their agents from subdividing, transferring, selling and/or doing any other act that prejudices the Plaintiff right to equal use and enjoyment of Kericho/Kabartegan/1013, 1135, 1851 & 1852 (formerly Kericho/Kabartegan/74). The Plaintiff also sought for an Order revoking all the title deeds that had been issued against Kericho/Kabartegan/74, being Kericho/Kabartegan/1012, 1013, 1135, 1851 & 1852 directing that the same be sub-divided into seven equal portions.

39. In response to the Plaint, the Defendants filed their defence and counterclaim dated 21st September 2020 denying the contents as disposed in the Plaintiff’s Plaint stating that in the year 1997 or thereabouts their deceased father had caused land parcel Kericho/Kabartegan/74 to be subdivided into Kericho/Kabartegan/1012 and Kericho/Kabartegan/1013 and thereafter caused land parcel Kericho/Kabartegan/1013 to be transferred and registered in the names of the 1st Defendant absolutely.

40. That subsequently in the year 2002 or thereabouts their father then caused land parcel Kericho/Kabartegan/1012 to be subdivided into 3 namely, Kericho/Kabartegan/1133,1134 & 1135 out of which he had transferred Kericho/Kabartegan/1135 & 1133 to the 1st and 2nd Defendants respectively to hold in trust for themselves and siblings from the 2nd house.

41. That the 2nd Defendant then caused land parcel Kericho/Kabartegan/1133 to be subdivided into two being Kericho/Kabartegan/1851 & 1852, to which he registered Kericho/Kabartegan/1852 measuring 0. 5 acres in the name of his son Victor Koech on allegation that the said portion constituted his entitlement. That he held Kericho/Kabartegan/1851 in trust for himself and the Plaintiff together with the other siblings and each of them was entitled to their respective share of 0. 95 Acres which he was ready and had been willing to share out.

42. What is not in dispute herein is that parcels of land No. Kericho/Kabartegan/1012, 1013, 1135, 1851 & 1852 were all subdivisions of Kericho/Kabartegan/74 which had originally been registered to the deceased Kiprob Arap Chumo who was the father to the parties herein.

43. It is further not in dispute that the deceased Kiprob Arap Chumo passed away in the year 2003 and that during his lifetime, he had caused the sub division of Kericho/Kabartegan/74 into Kericho/Kabartegan/1012 and 1013 and thereafter had subdivided Kericho/Kabartegan/1012 into Kericho/Kabartegan/1133, 1134 and 1135. To this effect thereof land parcel Kericho/Kabartegan/74 and Kericho/Kabartegan/1012 ceased to exist by operation of these subdivisions by its registered proprietor.

44. It is also not in dispute that the late Kiprob Arap Chumo had registered Kericho/Kabartegan/1013 to the 1st Defendant whereas Kericho/Kabartegan/1133 and 1135 had been registered to the 2nd and 1st Defendants respectively to hold in trust for the second house. The 2nd Defendant then subdivided No. 1133 into two portions namely Kericho/Kabartegan/1851 and 1852 and therefore 1133 ceased to exist.

45. The Plaintiffs argument herein is that parcels of land No. 1013, 1135, 1851 and 1852 ought to be sub divided equally amongst all the seven (7) Children/beneficiaries of the estate of the late Kiprob Arap Chumo. In essence therefore the Plaintiff’s case is based on customary trust.

46. The Defendants’ Preliminary Objection is that since the subdivision of the original parcel of land took place on the 26th November 1997, the instant suit had been filed and/or lodged outside the statutory timelines and therefor Plaintiff's claim was ousted by the provisions of section 4 of the Limitation of Actions Act and section 99 of the Land Act.

47. Since the Plaintiff’s claim is based on trust because he avers that Defendants hold the title to Kericho/Kabartegan/ 1013, 1135, 1851 and 1852 in trust for him and his siblings who were the beneficiaries to the estate of the late Kiprob Arap Chumo, it follows that the trusteeship exists by virtue of the existence of the title, as long as the claim itself is proved.

48. Section 20 (1) (2) of the Limitation of Actions Act provides as follows;“(1)None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action—(a)in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy; or(b)to recover from the trustee trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.(2)Subject to subsection (1), an action by a beneficiary to recover trust property or in respect of any breach of trust (not being an action for which a period of limitation is prescribed by any other provision of this Act) may not be brought after the end of six years from the date on which the right of action accrued:Provided that the right of action does not accrue to a beneficiary entitled to a future interest in the trust property, until the interest falls into possession."

49. In the case of Macharia Kihari v Ngigi Kihari [1994] eKLR, the court of Appeal had held that:-“We are unable to accept Mr. Thiongo’s contention that the suit was time-barred. Limitation prescribed in section 20 (2) of theLimitations of Actions Act, will not apply to a trust coming into existence under customary law. Under customary law the land even after the right of action has accrued, is held in trust even for decades before any step is contemplated for a formal transfer or division. Limitation does not apply in customary law. We reject this ground of Appeal.”

50. And in the case of Stephens & 6 others v Stephens & another [1987] eKLR the court of Appeal had held as follows;“The philosophy underlying the English Limitation Act seems to be, that where confidence is reposed and abused, a defaulting fiduciary in possession of trust property or which he converted to his use, should not be shielded by time bar. So no plea of limitation is available to a fiduciary in such a case. (See section 19 (1) of the Limitation Act 1939). The parliament of Kenya clearly shares that policy and in the Limitation of Actions Act (cap 22) enacted a similar provision in almost identical language. Section 20(1)(b) of the Limitation of Actions Act (cap 22) provides that:“None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust which is an action:“to recover from the trustee, trust property or the proceeds thereof in the possession of the trustee or previously received by the trustee and converted to his use.That was precisely the reliefs which the appellants sought in regard to the suit plot. In my opinion, no period of limitation applies in this case and I am in respectful disagreement with the learned judge’s contrary holding on this point. If this is the right view to take, the same must hold good for the consequential relief of account."

51. Having considered the submissions herein, the decisions cited as well as the law as herein above, I find that the preliminary objection by the 1st and 2nd Defendants lacks merit and is herein dismissed with costs to the Plaintiff.

52. The parties shall fast track the hearing the case by complying with the provisions of order 11 of the Civil Procedure Rules within 30 days.

DATED AND DELIVERED VIA MICROSOFT TEAMS AT KERICHO THIS 6TH DAY OF JULY 2023. M.C. OUNDOENVIRONMENT & LAND - JUDGE