[2023] KEHC 24526 (KLR)

Kiriro v Manyeki (Civil Appeal 25 of 2013) [2023] KEHC 24526 (KLR) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24526 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Appeal 25 of 2013

J Wakiaga, J

November 2, 2023

Between

Nancy Muthoni Kiriro

Appellant

and

Rufus Kangethe Manyeki

Respondent

(Appeal from the order dated 15th February 2013 in Murang’a LTD case No 62 of 2000 by Hon J. Wekesa – Senior Resident Magistrate)

Judgment

1. The Appellant filed an appeal at the Provincial Land Appeals Committee Central Province being Appeal No 04 of 2001 and by a judgement thereon dated 6th April 2001 the tribunal upheld the decision of the Kahuro Land Dispute Tribunal and made the following orders;a.The Appellant must file Succession Cause at Resident Magistrate’s Court Murang’a in accordance with the Law of Succession because the subject land is still in the name of Kiriro Waithaka.b.After that the Appellant to apply for the consent top transfer 1. 0 acres top the Respondent as per the Agreement between the same and the deceased before his death.c.The Executive Officer Murang’a Resident Magistrate’s Court to sign all the necessary documents to enforce the filing of the successiond)On completion the Respondent to be given 1. 0 acres of the suit property in respect of the sum of Kenya shillings 75,000 paid to the deceased.d.Any aggrieved party to appeal to the High Court within 60 days on point of law.

2. On the strength of the said award, the Respondent on the 17th October 2000 filed a chamber summons for the Order that the Court be pleased to enter judgement in terms of the award herein and on the 8th day of December 2000 the Court entered judgement in terms of the award and directed the Appellants to transfer 1. 0 acres to the Respondent.

3. On the 2nd day of September 2011 the Respondent took out a notice to show cause why the decree herein should not be executed and in opposition to same the Appellant on 15th November 2011 filed a replying affidavit in which it was deposed that the issues in the LDT case was addressed in Murang’a SPM Succession Cause No 162 of 2001 in which the Respondent filed an affidavit of protest in which the Court held that an Order from the LDT on same estate which is subject to Succession has no statutory basis and amount to intermeddling and an illegality.

4. It was deposed that the Court made a Ruling that she should transfer the land or make a refund of the purchase price based on the agreement for sale and that on an appeal to the High Court against the said decision the Court found the sale to had been illegal and untenable for want of consent of the Land Control Board and that the Respondent was relying on the remark made by the Court that LDT judgement was his remedy which remark did not constitute the Court’s decision and the award was overtaken by event once the grant was confirmed.

5. By Ruling thereon dated 15th December 2013 and the subject matter of this appeal the Court found that the award had not been set aside or appealed against and therefore there was nothing to stop its execution.

6. Being aggrieved by the said decision the Appellant filed this appeal and raised the following grounds of appeal;a.The Court erred in law and fact in finding that the decree issued on 8. 12 .2000 was capable of execution despite the subject of the said execution having ceased to exist after the same was partitioned and distributed pursuant to PM Succession Cause No 162 of 2001 and Nyeri High Court P& A Appeal No 7 of 2008b.That the Court erred in law and fact in failing to note that an appeal was filed at the Central Land Dispute Tribunal Committee in which an award and order were made and which constituted the decree which decree merged the LDT case with Succession Cause No 162 of 2001. c.That the Magistrate was misled by the Respondent who was under a duty to draw the decree in terms of the award of the tribunal.d.That the Magistrate erred in failing to note that the decree of 8. 12. 2000 had been superseded by the one of 15. 3.2001 and could not be executed hence a notice to show cause why the decree of 8. 12. 2000 should not be executed was misplaced and illegal.e.The Magistrate misapprehended the Appellant objection.

Submission 7. Directions were issued on the disposal of the appeal by way of written submissions and on behalf of the Appellant, it was submitted that the Appellant appealed against the decision of the Succession Cause No 162 of 2001 to the High Court in Nyeri High Court P&A Appeal No 7 of 2008 in which the Court found that the sale of land without a Land Control Board consent was a nullity and the Respondent protest therein was dismissed and the grant confirmed and that the judges made a remark in the said judgement to the effect that there was nothing to stop the Respondent from executing the Order of the Tribunal which then formed the basis for the Respondent’s application for execution.

8. It was submitted that after execution of the judgement from the succession cause as confirmed in the High Court, there was no room for the execution of the LDT award and that the Respondent in filing his protest in the succession cause Court and subjected himself to the said Court which could either grant or deny him the Orders sought and therefore the objection to the drawing of the decree was well founded as the only decree available was the one arising from High Court P&A No 7 of 2008 excluding the obiter dictum therein.

9. It was submitted that it was not necessary for the Appellant to file an appeal to the high Court as directed by the LDT once the committee stated that the property was to be dealt with by the succession Court and that there was no decree to be executed.

10. On behalf of the Respondent, it was submitted that the Court noted correctly that its business was to adopt the award of LDT and that the issue of the merit or otherwise of the award was to appeal to the High Court on points of law under Section 7 of the Act and that there was nothing to stop the Court from executing the decree.

11. It was contended that the Appellant was trying to review the award through the back door without following the procedure set under Section 8 of the Act and that having been made a judgement of the Court on 8th December 2000 the issues raised here in could only be done by way of appeal to the High Court. It was contended that the issue was not the existence of the subject land but on how to execute the order from the tribunal.

Determination 12. From the proceedings and submissions herein, the Court has identified the following issues for determination:a.Whether there was a decree capable of being executed.b)What Orders should the Court make.

13. The following facts are not disputed, that the Respondent filed a dispute at the land dispute tribunal which ordered that he was entitled to one acre of the suit property or the refund of the purchase price of Kshs.75,000 fully paid to the deceased subject to the filing of the succession cause.

14. That the Appellant filed Succession Cause No 162 of 2001 to which the Respondent filed a protest to the said grant and by a Ruling thereon the Court found that the deceased had sold land to the Respondent and that the grant will only be confirmed if his interest is taken care of by either way of transfer of the one acre or refund of the purchase price. The Court therefore proceeded to postpone the confirmation thereof.

15. Being dissatisfied, the Appellant filed an Appeal to the High Court at Nyeri being P&A Appeal No7 of 2008 in which the Court faulted the Magistrate in postponing the confirmation of grant and stated that at the time of his demise the property was still in the name of the deceased and that the sale thereof was done without the consent of the Land Control Board and that the Respondent’s remedy was to recover his outlay as a civil debt. The Court further found that the award was adopted as an Order of the Court and that it was never set aside and there was nothing stopping the Respondent from executing the said Order and decree against the Appellant which was his availed remedy.

16. The Court none the less dismissed the Respondents objection.

17. I must at this stage point out that the Court of Appeal has now made it clear that lack of Land Control Board consent is not a bar in enforcing a contract fiord sale of land which is not denied as was stated in the case of George Chayuga AliazavsSephania Khisa Saul (Civil Appeal 134 of 2017) [2022] KECA 538 (KLR) (24 June 2022) in which at paragraph 46 and 47 the Court held:(a)It is time, I think, that this Court spoke in unthinkable terms that it would not, in this day and age, rubber-stamp fraud and dishonesty by holding a null and void agreements freely entered into be sellers of agricultural land, and which have been fully acted upon by the parties thereto, when those sellers, often impelled by no higher motives than greed and impunity, seek umbrage under the Land Control Act, an old statute of dubious utility in current times.(b)It seems that the Respondent, having freely sold his land to the Appellant, and having received full payment therefore, and put the Appellant in possession where the latter proceeded to carry out developments, should now argue before a Court of law and, emboldened by a statutory provision, confidently assert a right to resile from his contractual obligations on the spurious reason that no consent to the transaction was given by the Land Control Board. Under the statute, it is required that both the vendor and the purchaser must sign the relevant application for consent. The Appellant made no effort to obtain that consent. He basically tries to benefit from his own default to defeat the Appellant’s rights and escape from his contractual obligations. And that is how a once well-intentioned provision of law as set out by my sister Judge, now gets twisted, taken advantage of, and abused to divest a seller of his duty under contract. That is using the statute as a cloak and an alibi for fraud and dishonesty. It flies in the face of all that is right and just and honourable. And Courts which a just and honourable, should put the matter right by requiring him to meet his just obligation and denying him the benefits of default and deceit.

18. It is clear that there is a decree issued by the Court in LDT NO 2 of 2000, which decree has not been set aside and which this Court sitting on appeal from the decision of the Magistrate found as a fact to be valid and capable of execution and is therefore not pursued by the submission by the Appellant that the same was extinguished by the dismissal of the Respondents protest.

19. The Respondent was following the procedure available to him in law and where the law provides the parties are expected to report the same remedies therein.

20. What was before the Court was execution of the said decree and therefore the issues raised by the Appellant herein can only be raised at the time of execution as I take the view that the Court having found as a fact that the Respondent was entitled to a refund of the purchase price as an availed remedy, the Appellant cannot use the existence of the transmission of the suit property to the beneficiaries a bar to execution. I find no fault with the trial Courts determination that the only issue before her was the execution of the decree of the Court.

21. I therefore find no merit on the appeal herein which I dismiss.

22. Having taken into account the history of this matter and the substantive justice involved noting that the Respondents had been put in possession by the deceasded before his demise, each party shall bear their own cost of the appeal.

23. And it is ordered.

SIGNED, DATED AND DELIVERED AST MURANG’A THIS 2nd DAY OF NOVEMBER 2023. J. WAKIAGAJUDGEIn the presence of :Mr. Kirubi for the RespondentMr. Waititu for Mr. Mbuthia for the AppellantJackline – Court Assistant