[2023] KEELC 18570 (KLR)

Kolil v Wangai & 3 others (Environment & Land Case 500 of 2013) [2023] KEELC 18570 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18570 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 500 of 2013

LC Komingoi, J

July 6, 2023

Between

Kosgey Chirchir Kolil

Plaintiff

and

Peter Ndegwa Wangai

1st Defendant

Bernard Wangai Kogi

2nd Defendant

Jane Njoki Kimani

3rd Defendant

Hurlingham Squatter Development

4th Defendant

Judgment

1. By a plaint dated 24th April,2013 filed on 26th April,2013, the Plaintiff prays for judgment against the Defendants jointly and severally for the following prayersa.General damages.b.A permanent injunction retraining the Defendants, their servants, employees, agents and persons acting under their authority from trespassing, entering, interfering ,erecting structure, constructing and making developments on the Plaintiffs parcel of land number 513 situated in Ruai within Nairobi.c.A declaration that the Plaintiff is the legal and absolute owner of the suit property.d.That this honorable court orders the 1st and 2nd Defendants to demolish any structures and building illegally erected on the Plaintiff parcel of land namely 513 Ruai, at their cost upon the determination of this suit and that the officer commanding Station Ruai to supervise the enforcement of the orders of this honorable court.e.Costs of the suit.f.Interest at court rates on (1) and (5) above,g.Any other relief that this honorable court shall deem just and fit to grant.

2. The Plaintiff contends that he is the owner of Plot 513 Ruai, the suit property herein, which he purchased from the 3rd Defendant for a consideration of Ksh.380,000/= through a duly executed sale agreement dated 24th July,2012. He adds that Ksh.100,000/= was paid upon execution while Ksh. 200,000/= was deposited into the 3rd Defendant’s account at Equity bank. The remaining balance of Ksh.80,000/= was paid to the 4th Defendant.

3. It is the Plaintiff case, that in January 2013, the 1st and 2nd Defendant illegally and fraudulently encroached on his land by trespassing, occupying and erecting structures therein without documentary proof of ownership. Consequently, he reported the matter to Ruai police station vide OB/29/22/03/2013. The Plaintiff claims that the Defendants have persisted with their unlawful actions despite his numerous pleas that they vacate the suit property.

4. The Plaintiff states that unless injunctive orders are issued against the 1st and 2nd Defendant restraining them from trespassing and erecting illegal structures, he will suffer irreparable harm and damage. This is because they have declined to stop illegal trespass and encroachment on the suit property despite being issued with demand and notice of intention to sue. To support his case, the Plaintiff filed a sale agreement dated 24th July,2012 between him and the 3rd Defendant and receipts of payment of Ksh. 80,000 and Ksh.200,000/= made to 4th and 3rd Defendant respectively . He also filed a certificate for plot Number 513 issued to him by the 4th Defendant on 24/7/2012.

The 1st and 2nd Defendants case 5. The 1st and 2nd Defendants deny the Plaintiff’s claim in a defence dated 10th February, 2022 and filed on 13th February, 2022. They assert that the Plaintiff has not established any claim against them because no cause of action has been disclosed. According to them, the suit is bad in law and time-barred and therefore they will raise a preliminary objection for its dismissal. They contend that the plaintiff’s sale agreement was invalid because the 3rd Defendant did not have the capacity or title over the suit property. They insist given they are the lawful and rightful owners of the suit property, they can utilize it as they deem fit. They did not therefore require the Plaintiff’s permission to erect structures therein. To support their claim, they filed receipts for payments, a certificate for Plot 513 issued to the 1st Defendant, mpesa statements by the 2nd defendant and a sale agreement dated 1st August 2011. They also produced photographs of the suit property.

The 3rd Defendant’s case 6. The 3rd Defendant in a statement of defence dated 29th September, 2014 dated admits selling the suit property to the Plaintiff through a sale agreement dated 24th July,2012 for a consideration of Ksh.380,000/=. She explains that the Plaintiff paid her Ksh.300,000/= while Ksh. 80,000/= was paid to the 4th Defendant. She denies knowledge of any trespass or illegal occupation of the disputed land by the 1st and 2nd Defendant as they have no claim of ownership over it. The Plaintiff was issued with the certificate of ownership of the plot by the 4th Defendant. The 1st and 2nd defendants are estopped from questioning the validity of its title and rights transferred to him by the 3rd Defendant. The 3rd Defendant prays that the suit be dismissed with costs against her as she has never occasioned any prejudice or loss to the Plaintiff.

7. The 4th Defendant did not file any response and or defend the claims leveled against it.

Evidence of the Plaintiff. 8. PW1- KOSGEY CHIRCHIR KOLIL told the court that he bought plot 513 from Jane Njoki for a consideration of Ksh. 380,000/= in a sale agreement dated 24/7/2017. In support of his testimony, he produced receipts of Ksh.200,000/= from equity bank paid into the 3rd Defendant’s account and others amounting to Ksh.30,000 and Ksh.50,000/= confirming payment to the 4th Defendant. The court was also told that Ksh.100, 000/= was paid in cash. He accused the 2nd Defendant of trespassing on the suit property and undertaking construction. Despite reporting the matter at Ruia Police station where they were referred to the district officer because the 2nd Defendant also claimed ownership of the suit land, 2nd Defendant never vacated the property. He further stated that when he approached the 4th Defendant about the issue, he was told that the sale agreement with the 1st Defendant had aborted and his monies were refunded. The court was also informed that the 2nd Defendant refused to vacate the suit property despite being informed to. According to the Plaintiff, the 1st Defendant was not in occupation of the suit property neither were there any structures as at the time of purchase. He also stated that he regularly visited the plot.

Evidence of the Defendants. 9. DW1- Jane Njoki Kamau begun her testimony by adopting her witness statement and bundle of documents dated 3rd March 2014. She confirmed that plot 513 and 514 belonged to her. Through an agreement dated 24/07/2013, she sold Plot Number 513 to the Plaintiff for a consideration of Ksh.380,000/=.She admitted that she received Ksh.300,000/= from the Plaintiff while Ksh. 80,000/= was paid to the 4th Defendant. Subsequently, the Plaintiff was issued with a share certificate for Plot Number 513 dated 24/7/2017 after being shown. She added that she sold plot 514 to Bernard Kagai for Ksh.150, 000/=. In addition she was paid Ksh.50,000 and some other monies through MPesa whose amount she could not recall. During cross examination, she maintained that the Plaintiff paid her the entire purchase price for Plot Number 513. He was also issued with the certificate of ownership for the plot by the 4th Defendant. She reiterated that plots 513 and 514 which belonged to her were sold to the Plaintiff and 3rd Defendant respectively.

10. DW2-Bernard Wangai Kogi while adopting his witness statement and bundle of documents dated 30/1/2022 in examination in chief told court that he jointly bought Plot Numbers 513 and 514 with his cousin, the 1st Defendant. Upon paying Ksh.210,000/= he was issued with receipts dated 21/5/2010 for the two plots. He also paid Ksh.210 as security fee and was issued with receipts. He was also shown the beacons by the 3rd Defendant. He admitted that the suit property was vacant when he possessed it. He produced photographs as proof that he has undertaken construction on it. It was his evidence that he bought plot Number 513 from the 1st Defendant and was issued with the certificate of ownership by the 4th Defendant. Further, monies in respect of the agreement dated 1/8/2011 amounting to Ksh.200,000 was paid to the 3rd Defendant in instalments. To support this, he produced unverified mpesa statement. Despite acknowledging that they went to the area chief regarding dispute over the suit land, he added that he produced the original ownership certificate which had been issued to him. He also confirmed that he received a demand letter from the Plaintiff’s advocate and that the Plaintiff also reported the matter to DCI Kayole. According to him, the dispute over the suit property was a matter of double allocation.

11. While being cross –examination, he marinated that he bought plot 513 through the 1st Defendant with whom he had a mutual agreement to have the property transferred to him. The said agreement dated 1/8/2011 between him and the 1st Defendant did not mention plot 513. He further stated that the 1st Defendant was issued with a certificate of ownership dated 21/5/2011 with consent of the 3rd Defendant. While still on cross examination, the court was informed that the full purchase price was not paid to the 3rd Defendant. Further, DW2 paid 1st Defendant commission for purchasing the suit property from the 3rd Defendant. He also stated that upon purchasing plot 514 from the 3rd Defendant and making payment, he was issued with certificate of ownership. He also reiterated that he constructed a perimeter wall, temporary structures and a house between plot Numbers 513 and 514.

12. DW3- Regina Muthoni admitted that she was Peter Ndegwa’s wife. The court was informed that the late Peter Ndegwa was issued with a share certificate by the 4th defendant upon payment of Ksh.40, 000/= as he intended to purchase plot Number 513. When he faced financial problems in 2017, he asked his cousin, the 3rd Defendant to make payments on his behalf in respect of Plot 513. While being cross examined, she stated that she did not know whether any sale agreement for plot 513 which was being sold at Ksh.250, 000/= existed. It was also her evidence that she was informed that the 2nd Defendant had agreed to continue making payments for the plot. However, the 3rd Defendant was not a party to such agreement. She was also not sure whether the 2nd Defendant completed payments for the plot. On re-examination, she admitted that she did not know how payments were made and that the 1st Defendant paid Ksh.40,000/=. The 1st Defendant also informed her that the 2nd Defendant would be making payments on his behalf.

13. At the close of the oral testimonies parties tendered final Written Submissions.

The Plaintiff’s submissions 14. The Plaintiff’s counsel in submissions dated 1st August,2022 and filed on 26th January, 2023 raised the following issues for determinationa.Whether plot No. 513 was legally transferred to the Plaintiff.b.Whether the Plaintiff is the bonafide owner of plot 513. c.Whether the 2nd Defendant has trespassed on plot 513. d.Whether an order of eviction should be issued against the Defendant.e.Whether the Plaintiff is entitled to the relief sought?

15. On the first issue, it is argued that the Plaintiff has demonstrated how he acquired the suit property from the 3rd Defendant who had proprietary rights upon allocation by the 4th Defendant by virtue of being its member.

16. With regard to the second issue, it is submitted that the sale agreement dated 24th July, 2012 met the requirements of Section 3(3) of the Law of Contract Act as was reinstated in African Cotton Industries Limited v Rural Development Services Limited ELC No. 25 of 2017. This is because the agreement was not only in writing but was also signed by all parties and their signatures attested. In addition, upon payment of the consideration, the Plaintiff was issued with a certificate of ownership signed by all the parties.

17. It is further argued that the 2nd Defendant did not provide any proof that he bought the suit land from the 3rd Defendant and that its purchase price was paid. This is collaborated by the fact that the 1st Defendant personal representatives testified that there was no agreement between the 1st Defendant and the 3rd Defendant. Further, the 2nd Defendant suit land certificate of ownership issued to Peter Ndegwa is suspicious and inauthentic as it not signed by all the parties. According to the Plaintiff counsel, the sale agreement between the Plaintiff and the 3rd Defendant supersedes the one between the 2nd and 3rd Defendant because it is in compliance with the law.

18. On whether the 2nd Defendant trespassed on Plot No. 513, it is submitted that given the Plaintiff has established he is the owner of the suit land which is unlawfully occupied by the 2nd Defendant who undertook construction without any lawful and unjust course. He also refused to vacant despite being demanded by the Plaintiff who had exclusive rights over the suit land. To support these arguments reference is made to Justice Chesoi court decision in M’ikiara M’mukunya & Another v Glibert Kabere M’mbijiwe (1983) eKLR and the definition of the word “trespass” as provided in Section 3(1) of the Trespass Act and Clerk & Lindsel on Torts 18th Edition at Pg 23.

19. With regard to the issue whether an order of eviction should be issued against the Defendants, reliance is placed on Section 24 of the Land Registration Act and Sections 152B and 152E of the Land Act to submit that eviction orders should be issued because the Plaintiff has proved he is the owner of the suit land which is being unlawfully occupied by the 2nd Defendant.

20. On the final issue, counsel maintains that the Plaintiff is entitled to general damages as the suit land was not only trespassed by the 2nd Defendant but he also undertook construction therein. Considering the Plaintiff shall restore the suit land, such costs should be borne by the 2nd Defendant. To support there arguments reference is made to the court decision in Park Towers limited v John Mithamo Njika & 7other (2014)eKLR, Philip Aluchio v Crispinus Ngayo (2014)eKLR and Nakuru Industries v SS Mehta & Sons(2016)eKLR.

21. With regard to permanent injunction, reliance is made on the court decision in Giella v Cassman Brown & Company Limited 1973 EA 358 to submit that the Plaintiff has proved his case on a balance of probability and therefor they seek cost because his suit is merited.

The 1st and 2nd Defendants submissions 22. The 1st and 2nd Defendant’s counsel in submissions dated 25th July,2022 filed on 31st January,2023 raises two issues for determination namely;a.Did the Plaintiff proof his case on a balance of probability?b.Has the Plaintiff proved fraud against the 1st and 2nd Defendants?

23. On the first issues, it is submitted that the 1st Defendant was issued with a certificate of ownership by the 4th Defendant on 21st May 2011 upon purchasing the suit property from the 3rd Defendant while its ownership was transferred to the 2nd Defendant by the 1st Defendant through a sale agreement dated 1/08/2011. Subsequently, the suit property was been possessed and occupied by the 1st and 2nd Defendant since 2011. In addition, the 2nd Defendant not only constructed a perimeter wall but he also constructed a house on the suit land.

24. According the 1st and 2nd Defendant submission, the 3rd Defendant did not have any right or proprietary interest over the suit land to allow him sell the suit land to the Plaintiff since he had already sold it to the 1st Defendant. Reliance is placed on the court decision in Katana Kalume & Another v Municipal Counsel of Mombasa & another (2019)eKLR and Republic v The Registrar of Titles, Mombasa & 2 other ex –parte EMFIL Limited (2012)eKLR to submit that the 3rd and 4th Defendant should not give suit land title to the Plaintiff. The effect of this is that the certificate of ownership issued to the Plaintiff by the 4th Defendant is void and therefor the Plaintiff does not have any proprietary interest over the suit land.

25. Counsel for the 1st and 2nd Defendant relies on Section 107,108 and 109 of the Evidence Act to claim that the Plaintiff has not discharged his burden of proof as relates to the legal ownership of the suit land .Reference is also made on Central Bank of Kenya Limited v Trust Bank Limited & 4 other (1996)eKLR and Kinyanjui Kamau v George Kamau(2015)eKLR to submit that the Plaintiff has not particularized nor proven any fraud allegation against the 1st and 2nd Defendant.

The 3rd Defendant Submissions 26. The 3rd Defendant’s counsel in submissions dated 12th July, 2022 raises the issue who is the bona fide owner of Plot 513? Counsel maintains that the sale agreement dated 24th July, 2012 was valid since it met the requirements of Section 3(3) of the Law of Contract as read together with Sections 38(1) (a) and (b) of the Land Act No. 6 of 2012 and as was upheld in ELC 25 of 2017 African Cotton Industries Limited v Rural Development services Limited. In addition, the Plaintiff produced receipts demonstrating payment of the purchaser price to the 3rd Defendant. It argued that there was no sale agreement between the 3rd Defendant and the 1st and 2nd Defendant over the suit land neither did they proof they paid the purchase price.

27. With regards to the Plaintiff certificate of ownership dated 21st May, 2011, it is submitted that it was signed by all the parties including the 3rd Defendant while the 1st and 2nd Defendant certificate of ownership dated 24th July,2021 was not signed by the 3rd Defendant. These averments are supported by the various court decisions including Environment and Land Court at Nairobi Civil Suit No. 193 of 2010 now ELC 276A of 2017 Alton Homes Limited & Another v Davis Nathan Chelogoi & 2 Others.

28. I have considered the pleadings and the evidence on record. I have also considered the written submissions and the authorities cited. The issues for determination are;a.Whether the Plaintiff lawfully acquired plot 513. b.Has the 2nd Defendant trespassed on Plot 513?c.Is the plaintiff entitled to the relief sought?d.Who should bear costs of this suit?

29. It is not in dispute that the Plot 513 originally belonged to the 3rd Defendant. Both the Plaintiff and the 1st and 2nd Defendants lay claim over it on the basis that they purchased it from the 3rd Defendant. The Plaintiff duly executed a sale agreement dated 24th July,2012 between him and the 3rd Defendant was recognized and the acknowledged by the 3rd Defendant. The 3rd Defendant also in her testimony confirmed receipts of the entire purchase price for the sale of the suit property from the Plaintiff.

30. DW 1 Jane Njoki Kimani, the 3rd Defendant in her testimony on 8th March, 2022 stated;“………I sold Plot 513 to Kolil (the Plaintiff). We entered into a sale agreement. This is the sale agreement. I signed. He and the wife Mary Wangui Mwangi signed on 24th July 2012. I sold it for Kshs.380,000/=. He deposited Kshs.200,000/= in my account. He gave me Kshs.100,000/= in cash. The balance of Kshs.80,000/= we took to the offices of Hurlingham Squatters Development….”

31. DW 2 Bernard Wangui Kogi, while being cross-examined by the Plaintiff’s Counsel admitted that he did not have the original certificate issued to the 1st defendant, in court.He could not prove that such certificate existed.

32. DW3 Regina Muthoni, the legal representative of the Estate of the 1st Defendant admitted on cross examination that the 3rd defendant (DW1) was not a party to the sale agreement between Peter Ndegwa Wangai (1st defendant) and Bernard Wangai Kogi (the 2nd Defendant).

33. I find that the Plaintiff has demonstrated that he lawfully acquired Plot No.513.

34. On the other hand, there is no valid sale agreement over the suit property between the 3rd Defendant and the 1st and 2nd Defendant. The 1st and 2nd Defendant admitted this in their testimony. DW1, the wife of the 1st Defendant stated that though her husband was interested in purchasing the suit property, he faced financial constraints. He only paid Ksh.40,000/= and was issued with a share certificate by the 4th Defendant. She was not sure whether any monies were paid to the 3rdDefendant. The 3rd Defendant told the court that the 1st Defendant was refunded monies when it became difficult to complete. The 2nd Defendant has placed before this court an agreement between him and the 1st Defendant. This agreement seems to indicate that 1st Defendant was purchasing the property as an agent of the 2nd Defendant. Details of how and when the said property passed from the 3rd to the 2nd Defendant have not been placed before the court.

35. From the foregoing the court holds that the Plaintiff legally acquired the suit land from the 3rd Defendant. The Plaintiff seeks to have the permanent injunction issued against the 1st and 2nd Defendant from interfering with the suit property. He also wants them ordered to demolish any structures erected therein illegally. The 2nd Defendant admitted in his testimony that he occupies the suit property. He also produced photographs to support his claims that he undertook construction therein.

36. Having found that the Plaintiff legally acquired the suit property, it is only fair that he be granted vacant possession and occupation. This is because Article 40(6) does not offer protection to any person who illegally acquired any property.

37. The plaintiff claims general damages for trespass. The 2nd Defendant admits that he entered the suit property and put an iron sheet structure, a pit latrine and a perimeter wall.I agree with the plaintiff’s submission that where trespass is proved a party need not prove that he has suffered any specific damage. I rely on the case of Park Towers Ltd Vs. John Mithamo Njika & 7others (2014) eKLR where the court stated;“…….. I agree with the learned Judges that where trespass is proved, a party need not prove that he suffered any specific damage or loss to be awarded damages awardable depending on the unique facts and circumstances of each case”.I award Kshs 100,000/= which I think is reasonable.

38. In conclusion I find that the Plaintiff has proved his case as against the Defendants on a balance of probabilities.

39. Accordingly, Judgement is entered in favour of the Plaintiff as against the Defendants jointly and severally as follows;a.That a declaration is hereby issued that the Plaintiff is the legal and absolute owner of plot number 513 situated within Ruai within Nairobi County.b.That a Permanent Injunction is hereby issued restraining the Defendants, their Servants, employees, agents and persons acting under their authority from trespassing, entering, interfering, erecting structures, constructing and making developments on the Plaintiff’s parcel Plot Number 513 situated within Ruai within Nairobi County.c.That 1st and 2nd Defendants are hereby directed to demolish any structures illegally erected on the Plaintiffs parcel of land being Plot No. 513 Ruai at their cost within Ninety (90) days from the date of this Judgement. Failure to which, the Plaintiff shall be at liberty to demolish the same at the 1st and 2nd defendant’s expense.d.General damages for trespass Kshs.100,000/=e.That costs of the suit shall be borne by the defendants.

DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 6THDAY OF JULY, 2023. L. KOMINGOIJUDGEIn The Presence Of:N/A for the Plaintiff.N/A for the 1st and 2nd Defendants.N/A for the 3rd Defendant.N/A for the 4th Defendant.Court Assistant - Mutisya