[2022] KEELC 4862 (KLR)

Mayende & another v Kaihra & another (Environment & Land Case E006 of 2022) [2022] KEELC 4862 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEELC 4862 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case E006 of 2022

FO Nyagaka, J

September 20, 2022

Between

Pius Wambwile Mayende

1st Plaintiff

1975 Kitale Mwalimu Housing Co-operative Society

2nd Plaintiff

and

Bhagwanji Shah Kaihra

1st Defendant

Shah Lalji Kachra

2nd Defendant

Judgment

1. The plaintiffs filed a plaint dated February 2, 2022 on February 3, 2022. They sought the following reliefs:a.A declaration that the plaintiffs have a right of ownership, possession and title to Land Reference No 2117/45/IV IR No 100092 and the Registrar of Title Nairobi and/or Land Registrar Trans Nzoia do issue title deed to the 2nd plaintiff.b.Costs of the suit.

2. In spite of proper service of summons upon the defendants by one Jackson Nyongesa, a duly licensed court process server, the defendants failed to enter appearance or file defence. Consequently, interlocutory judgment was entered on April 7, 2022. That paved way for hearing the matter by way of formal proof.

The Plaintiffs’ Case 3. In 1975, the 1st plaintiff, PW1, joined hands with other members of the 2nd plaintiff, a cooperative society subsequently registered on May 13, 2021 and issued with a registration certificate No CS/25996, which was produced in evidence and marked as P Exhibit 9. It was issued under the Co-operative Societies Act, chapter 490 of the Laws of Kenya, as teachers with a common goal; contributing and investing their monies with returns shared on a pro rata basis as per each member’s share contribution. As a result, they formed the Trans Nzoia Teachers Co-operative Society Limited, a co-operative society that would eventually earn a registration status.

4. Following that, members contributed funds towards the purchase of the suit land that was held under a leasehold interest namely LR 2116/45/IV IR 100092. On 15/07/1976, the 1st plaintiff, together with other nominated officials, that is Philip Musungu and Emmanuel Wanyonyi (now both deceased), entered into a memorandum of agreement, (PExhibit 1) of sale at a consideration price of Kshs 110,000. 00, with the defendants herein. The letters from the chiefs and respective death certificates of the former officials were produced in evidence and marked as P Exhibit 6 (a), P Exhibit 6 (b) P Exhibit 7 (a) and P Exhibit 7 (b) respectively.

5. The plaintiffs were then given the title deed in respect to the suit land. It was registered as LR 2116/45/IV IR 100092. It was produced and marked as P Exhibit 2. Currently, the property is valued at Kshs 25,000,000. 00. It was further agreed in the said memorandum of agreement that upon completion of payment of the consideration, the defendants would execute the necessary documents and deliver the said documents to the plaintiffs. Thus on January 6, 1980 and November 23, 1981, two (2) transfer documents, produced in evidence as P Exhibit 5 (b) and P Exhibit 5 (a) respectively, were executed by the defendants to the favor of Trans Nzoia Teachers Co-operative Society Limited.

6. The 2nd plaintiff held a meeting on 07/08/2021. It was chaired by PW2, Nicodemus Milimo, the chairman of the 2nd plaintiff. In attendance of the meeting was PW3, Gilbert Wasilwa Wakhungu vice chair of the 2nd plaintiff. By resolution, the 2nd plaintiff appointed the firm of Mukabane & Kagunza Advocates to institute the present proceedings in order to have the suit land registered in favor of the 2nd plaintiff. The resolution was produced in evidence and marked as P Exhibit 3. These facts were undisputed by the 1st plaintiff who swore an Affidavit on October 22, 2021. It was produced in evidence and marked as P Exhibit 4.

7. The institution of the present proceedings was necessitated by the fact that in the course of time the 2nd plaintiff discovered that Trans Nzoia Teachers Co-operative Society Limited remained unregistered and could not therefore take ownership of property. For this assertion, the plaintiffs produced letters marked as P Exhibit 8 (a) and Exhibit 8 (b). The plaintiffs testified that defendants have now failed and or refused to execute transfer forms in favor of the 2nd plaintiff hence the suit. They urged this court to grant the reliefs sought.

8. PW2 and PW3, one Nicodemus M Wanyonyi and Gilbert W Wakhungu, respectively, testified to the above facts as well. All the witnesses adopted their witness statements signed on 2/02/2022 and filed on February 3, 2022.

Submissions 9. The plaintiff’s submissions dated June 24, 2022 were field on June 26, 2022. They submitted that the contract entered between the 1st and 2nd plaintiff’s officials and the defendants remained valid and in compliance with section 3 (3) of theLaw of Contract Act. Since it was not subject of the Land Control Act, the contract was not void. The plaintiffs further submitted that they had proved their case on a balance of probabilities in line with section 107 of the Elections Act. Since the defendants failed to controvert their evidence, they urged this court to allow the suit as prayed.

Analysis & Disposition 10. I have carefully analyzed the pleadings and the documents on record. I have also considered the plaintiffs’ submissions. It cannot be gainsaid that the defendants, in spite of proper service of summons, failed to enter appearance or file defence.

11. The plaintiffs’ uncontroverted evidence was that in 1975, the 1st plaintiff and members of the 2nd plaintiff converged together to form a co-operative society. Their objective was, contributing and investing their monies with returns shared on a pro rata basis as per each member’s share contribution. They intended to call themselves Trans Nzoia Teachers Co-operative Society Limited.

12. Following their bind, the plaintiffs identified and intended to purchase the suit land namely LR 2116/45/IV IR. 100092. Consequently on July 15, 1976, the 1st plaintiff and two (2) other nominated officials, that is Philip Musungu and Emmanuel Wanyonyi (now both deceased) entered into a memorandum of agreement with the defendants at a consideration sum of Kshs 110,000. 00. Subsequently, the defendants surrendered the title deed in respect to the suit land.

13. Under the terms of engagement, the defendants on June 1, 1980 and November 23, 1981, executed the two (2) transfer documents and delivered them to the plaintiffs upon settlement of the consideration sum. Noticeably, the documents were executed to the favor of Trans Nzoia Teachers Co-operative Society Limited.

14. During its meeting held on August 7, 2021, the 2nd plaintiff passed a resolution appointing the firm of Mukabane & Kagunza Advocates to institute the present proceedings in order to have the suit land registered in favor of the 2nd plaintiff.

15. In May, 2022, 2nd plaintiff discovered that Trans Nzoia Teachers Co-operative Society Limited remained unregistered and could not therefore take ownership of property. They registered the 2nd plaintiff, as members of the earlier unregistered entity under which they bought the suit land. The plaintiffs testified that defendants have now refused to execute transfer forms in favor of the 2nd plaintiff hence the suit.

16. From the evidence on record, it is apparent that the defendants had every intention of transferring ownership from their favor to the entity formed by the people amongst whom the first plaintiff was. The defendants handed over the original documents of ownership to them. This is the probable reason why the plaintiffs are in possession of the original title deed unless the same was obtained otherwise by fraud, coercion or mistake. That is not the case. No evidence has been led to that effect. However, I note with great circumspection that there were several anomalies on the documents produced in support of the plaintiffs’ case and I will demystify them as hereunder:

17. In an entry recorded on the title on October 8, 1974 as Entry No 6, the title deed was transferred to the favor of Shah Somchand Bhagwanji and Shah Bhimji Bhagwanji as trustees from Shah Bhagwanji Kachra and Shah Lalji Kachra (trustees). The memorandum of agreement disclosed that the vendors were Somchand Bhagwanji Shah and Shah Bhimji. However, those are not persons who are sued (as defendants) who the plaintiffs have asserted were the vendors in the sale agreement. It is thus not clear if the vendors are indeed the defendants to these proceedings or are indeed the current proprietors to the suit land. It also is unclear why the plaintiffs decided to sue persons other than the ones who entered into the memorandum of agreement with the persons claimed to have bought the suit land vide that memorandum of agreement (P Exhibit 1). There is no evidence that entry No 6 was ever cancelled or another entered into to show that the suit land reverted back to the persons shown as owners vide entry No 5 in the title document who have now been sued.

18. On the other part, that is the purchasers, the 1st plaintiff, is one of the nominated officials to the transaction. He testified that he executed the document marked P Exhibit 1. I am too uncomfortable to make that finding for two reasons: firstly, the name of the 1st plaintiff as it is different from that which appears on the undated memorandum of agreement (P Exhibit 1) and lastly, the signature of the 1st plaintiff witness statement, signed by Pius Wabwile Mayende, is totally different from that of one Pius Carolus Mayende on the memorandum of agreement. Unless specifically proved, which was not, I am unable to hold that PW1 is one and the same person as Pius Carolus Mayende who executed P Exhibit 1.

19. Another apparent issue lay in the description of the purchasers to the agreement. The officials were described as to enter the agreement on behalf of the Kenya National Union of Teachers, Trans Nzoia branch and not on behalf of Trans Nzoia Teachers Co-operative Society Limited nor 1975 Kitale Mwalimu Housing Co-operative Society. It only pursuant to two (2) subsequent transfers, that is one dated January 6, 1980, which evinces payment of stamp duty and another dated November 23, 1981, which contrary to the plaintiffs contention was not franked, that introduce the name of the transferee as that of Trans Nzoia Teachers Co-operative Society Limited.

20. It was stated in evidence that upon discovery that the initial name intended by the persons among whom PW1 states was a member was not registered, the 2nd plaintiff was registered on May 13, 2021 under the Co-operative Societies Act and issued with registration certificate No CS/25996.

21. While I empathize with the plaintiffs on the contingent possibilities of obtaining further transfer documents from the proper alleged vendors of the suit land, this court cannot turn a blind eye on the discrepancies in evidence as disclosed from the onset of the relationship that subsisted and even the subsequent one. it would be tragic in the legal realm to hold that persons not proven to have bought land from vendors, and persons sued as vendors yet they never were, had proper relationship as to cause a transfer of ownership of title of the suit land. Additionally, it is critically important for the plaintiffs to consider their evidence insofar as the names of and vendors are concerned before any orders can issue.

22. This court has emphasized before and shall continue to so do that the fact that a suit is not defended does not entitle a party to automatic grant of the reliefs sought. The plaintiff, petitioner or claimant for that matter ought to prove his/her or its case to the required standard. the burden of proof must be discharged. And it lies on the party asserting that a fact is as he/she puts it, unless the law specifically transfers that burden from him/her to the adverse party or other person. That is provided for under section 107(2) of the Evidence Act, chapter 80 of the Laws of Kenya. Section 107(1) then provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” The plaintiffs herein have failed to bring themselves within the parameters of the two provisions cited above.

23. For these reasons, I find that while the plaintiffs may have acted in good faith, they first ought to regularize the contents of the sale agreement as to who the parties to the transaction were, in line with the title deed. Flowing from the above, it is clear that the plaintiffs have not proved their case on a balance of probabilities and the orders sought cannot issue. This suit is therefore hereby dismissed.

24. Since the suit was undefended, I direct that each party bears its own costs.

25. Orders accordingly.

JUDGMENT, DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL ON THIS 20TH DAY OF SEPTEMBER, 2022. DR. IUR FRED NYAGAKAJUDGE, ELC, KITALE