[2018] KEELC 2142 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

ELC. CASE NO. 1542 OF 2013

LYDIAH JENNY KAATUKU MUTHUSI (Suing as theAdministratrix and Personal

Representative ofthe Estate of Jackson Muthusi Mwano).........................PLAINTIFF

VERSUS

CITY CHICKEN & EGGS DEALERS CO-OPERATIVE LTD......1ST DEFENDANT

PHYLIS MUGECI NGUGI.................................................................2ND DEFENDANT

JUDGEMENT

1. The Plaintiff, who filed this suit on behalf of the Estate of her late husband, Jackson Muthusi Mwano, seeks a declaration that she is the bona fide purchaser for value of plot number 118 – Cum – Plot No. 20 and an order directing the Lands Office to restore and transfer the plot to the Estate of her deceased husband failing which the Deputy Registrar is to execute the relevant transfer. She also seeks damages, vacant possession and eviction of the 2nd Defendant from the plot, mesne profits calculated from the date of encroachment, costs and interests.

2. The Plaintiff avers that her late husband bought plot number 118 known as L.R. No. 1012/63 measuring 0. 5 acres situated in Kasarani on 3/2/1981 from Henry Mungai Kiningo, who was a member of City Chicken & Eggs Dealers Cooperative Limited. She claims that the transaction was effected in the 1st Defendant’s offices and her late husband paid the consideration of Kshs. 28,000/= together with 2000 shillings being the transfer fee.

3. As the legal administrator of her late husband’s estate, the Plaintiff made several attempts on various occasions to get the 1st Defendant to transfer the suit plot to her late husband’s estate to no avail. The Plaintiff averred that the Defendants acted fraudulently and negligently in failing to transfer the plot to her deceased husband’s estate. She also claims that the Defendants misrepresented facts on the records and fraudulently purported to transfer her late husband’s plot to the 2nd Defendant. She claims that plot number 118 and plot number 20 indicated on the two maps is one and the same plot which belonged to her late husband. She claimed that the 2nd Defendant has encroached on her late husband’s plot. The suit was filed in 2013.

4. The 1st Defendant filed its defence on 25/3/2014 and stated that it was a stranger to the alleged sale of plot number 118 or 20 and denied sanctioning the sale or authorizing any of its officers to represent it in the purported sale. The Defendant urges that the Plaintiff should have exercised due diligence before proceeding with the sale by confirming the genuineness of the plot from the records held by the 1st Defendant.

5. The 1st Defendant confirmed that it held meetings with the Plaintiff in the presence of police officers from the Directorate of Criminal Investigations, Kasarani Police Station in an attempt to resolve this dispute. The Defendant maintains that plot number 118 is different from plot number 20 and that the plots were previously owned by Ngui Kimonyi and Dr. and Mrs. Njuguna respectively.

6. The 2nd Defendant filed her defence on 30/10/2014 and denied the Plaintiff’s claim. She avers that the 1st Defendant allocated her late husband Ngugi Mbiru plot number 20 of L.R. No. 1012/63 after he purchased it for valuable consideration. Upon his demise in 1989 the 1st Defendant transferred the plot to her in her capacity as the administrator of her late husband’s estate. She took possession of the plot and developed it. The plot was subsequently registered as Nairobi Block 122/85 in her name and she has been dutifully paying land rates to the City Council of Nairobi.

7. She admitted that the Plaintiff reported the matter to the police but the report which was misguided, was later dismissed. She denied the particulars of fraud, negligence and misrepresentation pleaded by the Plaintiff. She further pleaded that even if the suit plot belonged to the Plaintiff which she denied, the Plaintiff’s claim against her would be statute barred and she would have acquired title to the plot by adverse possession having been in open and uninterrupted occupation of the plot for a period of more than 12 years.

8. The Plaintiff called four witnesses. She testified that her late husband bought a piece of land measuring 0. 5 acres that was part of L.R. No. 1012/1963from Henry Kiningo Mungai in 1981. He fenced the plot with strong poles and mesh wire before leaving the country on his employer’s assignments. He died in August 1995 and the Plaintiff took out letters of administration in 2013. While collating the assets of her husband’s estate, she discovered that plot number 118 in Kasarani had been encroached on by strangers.

9. She later learnt that there had been an amalgamation of plots by the Defendant which resulted in the re-numbering of the plots and that plot number 118 became plot number 20 but retained the same physical location.

10. She tried to secure the plot and looked the witnesses who were present when her husband purchased the plot. She stated that her late husband purchased the plot as evidenced by the sale agreement dated 3/2/1981. The late Kioli Nzau, the late Henry Mungai Kiningo, Anna Peter Lui, B.J. Muswa and Richard Mutisya Muiva who were members of the 1st Defendant witnessed the execution of the agreement. Her husband paid the consideration of 28,000/= together with the transfer fee of 2000/=. She denied that the suit plot had any rental units on it. She was aware that amalgamation and amendment of L.R. Numbers 1012/63, 8469/1 and 8118 Kasarani was done in 1991.

11. Her late husband worked in Zambia until 1986 when he returned to Kenya with his family. She confirmed that when she visited the plot she found that people had invaded it. She reported the matter to the police for investigation. She blamed the 1st Defendant for failing to provide the initial register of its members and to avail the record showing the who owned plot number 20 before and after the amalgamation. She included this plot in the application for grant of probate of her late husband’s estate. She maintained that plot number 118 became plot number 20 after the amalgamation.

12. She stated that a member of the 1st Defendant’s Committee confirmed to her that the man who sold the plot to her husband owned the property. She was not aware of the other plots which Henry Mungai owned. She was not aware that the 2nd Defendant was allocated plot number 20 in 1991 after a re-ballot. She stated that she was aware of the fresh renumbering but not of any re-balloting. She confirmed that she was also mostly out of the country after her husband purchased the plot. She claimed that there was no structure on the plot in 1999.

13. The Plaintiff called John Obel, a surveyor who gave evidence. The initial survey work was undertaken by the late T.A. O. Oketch. He took over in February 1998 to finalise the incomplete jobs left by the late Oketch. He confirmed that the 1st Defendant had 3 parcels of land, that is L.R. Numbers 8118, 8469/1 and 1012/3 which it wished to subdivide into half acre plots. L.R. No. 1012/63 was subdivided in 1978 into 120 plots. In 1991, the 1st Defendant obtained approval from the Ministry of Lands to amalgamate the three (3) plots it owned. The 1st Defendant got approval for conversion of the plots created from the subdivision for registration under the Registered Land Act.

14. The Director of Surveys gave it registration block 122 and the plots were to be given parcel numbers delineated on F/R No. 227/56. The late Oketch, licensed surveyor carried out the survey work in 1992. According to this witness, plot number 118 changed to number 20 after the re-numbering but its physical location remained the same. He agreed that the re-numbering was not done based on the old plot numbers. It was his evidence that after amalgamation and survey, plot number 20 became Nairobi Block 122/85. He relied on survey plan number 227/56 on the assertion that plot number 118 became plot number 20. He denied that plot number 118 could have become plot number 21 and also that it could not have become plot number 184 or 278. These are the plots that were allocated to Henry Mungai by the 1st Defendant. The witness stated that he worked with 1st Defendant and would assist members to process their titles once they were cleared by the 1st Defendant.

15. Richard Mutisya Muiva also gave evidence. He stated that he was present when the Plaintiff’s late husband entered into the agreement for the purchase of the suit plot. He was witnessed the agreement since he knew the Plaintiff’s late husband who came from his home place. He stated that the agreement took place in the offices of the 1st Defendant.

16. The Plaintiff also called Anna Peter Lui to testify on her behalf. Anna was a member of the 1st Defendant, she was member number 45. Anna knew Henry Mungai and got to know the Plaintiff’s late husband through Henry Mungai. She also knew the other witnesses who signed the letter in respect of the sale of the plot. She stated that the letter was brought to her to witness. She stated that the 1st Defendant used to sell plots using metal plates which had ballot numbers. If a member sold a plot they would sign an agreement and surrender the metal plate. Other members would witness the transaction. She confirmed that Henry Mungai had three plots and sold one to the Plaintiff’s husband.

17. After the 1st Defendant’s members balloted for plots in 1981, some members who were dissatisfied with the plots reported the matter to the Ministry of Cooperatives which stopped the balloting and took over the process. Members were allowed to ballot for plots in three different places, that is, up the hill, in the middle of the hill and downhill. Each member picked three ballots. The witness did not know if plot number 118 was balloted for. Anna balloted for her plots and was moved from the plots which had been initially allocated to her. The members who were not present had their ballots returned to the Ministry. She confirmed that after balloting one had to move to the new plot and that in order to ascertain the plots allocated to those who were not present during the re-balloting, one had to go the Ministry with their original ballots. To sell a plot after the re-ballot, one had to have been allocated the new plot.

18. The 1st Defendant’s Chairman gave evidence. He was the secretary of the 1st Defendant at the time the Plaintiff alleges her husband bought plot number 118. According to the 1st Defendant’s records, plot number 118 is different from plot number 20. Plot number 118 was originally allotted to Ngui Kimonyi who transferred it to Dr. J. Njuguna and his wife. Plot number 20 was originally allocated to Ngugi Mbiru and was transferred to the 2nd Defendant after his demise. The witness produced the 1st Defendant’s records showing that Henry Mungai Kiningo was allocated plot numbers 21, 184 and 278 which he subsequently transferred to other people and not the Plaintiff or her late husband. The witness denied that Henry Mungai could have transferred plot number 118 to the Plaintiff’s late husband since he did not own that plot. The witness urged that the suit was time barred.

19. The 2nd Defendant gave evidence. Her late husband was a member of the 1st Defendant and was allocated a plot. When the members returned their ballots to the society in 1991 for re-balloting, she was reallocated plot number 20. She took possession and allowed her brother in-law to farm on the plot until 1999 when he retired and went to live in Murang’a. The 2nd Defendant constructed rental rooms on the suit plot which she has let out to different tenants. She claims that the Plaintiff has never claimed to own the suit plot until 19/5/2013 when she called her son to say that the plot was hers. She claimed that the Plaintiff wrongly sued her claiming her late husband’s plot was number 118 and that it became plot number 20 when the maps were drawn. The 1st Defendant confirmed to her that plots numbers 118 and 20 were different. She urged the court to dismiss the Plaintiff’s claim and award her costs.

20. Parties filed submissions. The issue for determination is whether the court should grant the orders sought by the Plaintiff. The Plaintiff failed to prove that plot number 118 which her late husband purchased from Henry Mungai Kiningo became plot number 20 when re-balloting was done in 1991. Henry Mungai Kiningo transferred the three plots he was allocated after the re-balloting in 1991 to other persons. The Plaintiff and her husband were not in Kenya at the time the re-balloting was done. There is no evidence that the Plaintiff’s late husband went to the Ministry of Cooperatives to establish what plot was allocated to him after the re-balloting in 1991. From the evidence adduced, the court is not satisfied that the Plaintiff established on a balance of probability that her claim is merited.

21. The Plaintiff claims that her late husband bought the suit plot in 1981. She adduced evidence to prove this and stated that her husband worked out of the country until his demise in 1995 or thereabouts. She filed this suit in 2013.

22. The court agrees with the Defendants that the Plaintiff’s claim is statute barred having been filed more than 12 years from the date the cause of action arose.

23. The suit is dismissed with costs to the Defendant.

Dated and delivered at Nairobi this this 26th day of July 2018.

K. BOR

JUDGE

In the presence of: -

Lydia Muthusi, Plaintiff

Mr. Ogada holding brief for Mr. Kassim for the 1st Defendant

Ms. Nyaanga holding brief for Mrs. Kuria for the 2nd Defendant

Mr. V. Owuor- Court Assistant