[2015] KEELC 209 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA

ELC CASE NO. 151 OF 2013

MICHAEL MUNENE NJOGU ...............................................1ST PLAINTIFF

DAVID MURAGE NJOGU ..................................................2ND PLAINTIFF

JOHN KARANGU NJOGU .................................................3RD PLAINTIFF

VERSUS

BERNARD GITHINJI ........................................................1ST DEFENDANT

MUNENE GATHENGE ....................................................2ND DEFENDANT

JOYCE KARIITHI NJERU ................................................3RD DEFENDANT

JUDGMENT

The parcel of land No. INOI/KERUGOYA/250/16 (hereinafter the suit property) was registered in the names of the following five persons to hold as tenants in common in equal shares i.e.:-

BERNARD GITHINJI (1st defendant)

NJOGU CHOMBA

NJERU GATHENGE

MUNENE GATHENGE (2nd defendant) and

ZAKAYO NJOGU

A lease was issued in their joint names under the now repealed Registered Land Act in July 1971.

NJOGU CHOMBA was the father of the plaintiffs herein and when he died in 1983, the 1st plaintiff took out letters of administration and was registered as a trustee of his father’s share on behalf of himself and the other plaintiffs. The 3rd defendant is the wife to the late NJERU GATHENGE and it is clear from the plaint filed herein on 16th December 2011 that although the suit property was developed through contributions of all the tenants in common, the defendants have sold part of the suit property without the consent of the plaintiffs contrary to the provisions of the repealed Registered Land Act and also failed to give an account of the profits/losses that may have accrued and therefore this suit was brought to Court. In the claim, the plaintiffs seek the following remedies:-

A permanent injunction restraining the defendants, theiragents, workmen, servants or any persons claiming through them or otherwise howsoever from dealing or interfering with the property known as leasehold INOI/KERUGOYA/250/16.

A declaration that any dealings on the property INOI/KERUGOYA/250/16 by the defendants is illegal, null and void

An account be ordered against the defendants on the properties erected on INOI/KERUGOYA/250/16

Costs and interest of the suit

Any other or better relief this Honourable Court may deem fit and just.

In their defence however, the defendants aver that although the proprietors of the suit property were registered as tenants in common, each proprietor was entitled to an equal share in the property and each had power to sell their share of the same and that this suit is filed in bad faith to circumvent and defeat the defendants’ counter-claim.

In their counter-claim, the defendants justified the sale of four (4) shares to one LAWRENCE WACHIRA NGIRIGACHA adding that the plaintiffs have been collecting rent from the business but have not been forwarding the same to the defendants and therefore the defendants counter-claimed for the following:-

An account be ordered against the plaintiffs for rent collected on the properties erected in title No. INOI/KERUGOYA/250/16

That the plaintiffs be ordered to pay general and special damages arising out of rent collected on the properties collected on the title No. INOI/KERUGOYA/250/16

Costs of this suit

Any other relief that this Honourable Court deems fit to grant.

The defendants therefore sought that the plaintiffs’ suit be dismissed and judgment be entered against them as per the counter-claim.

A reply to the defence and a defence to the counter-claim was filed in which the plaintiffs pleaded that the issues raised in the counter-claim were resolved in the Business Rent Tribunal and therefore it should be dismissed.

The 1st plaintiff testified in support of the plaintiffs’ case and his testimony was adopted by the 2nd plaintiff while the 2nd defendant was the only witness for the defence.

The 1st plaintiff confirmed that the suit property was registered in the names of the above named proprietors of which the late NJOGU CHOMBA was their father. He stated that the five (5) proprietors all jointly contributed towards the development of the suit property and when his father died in 1983, he was registered as trustee to hold his share on behalf of the other plaintiffs. However, on 24th February 2011, the Municipal Council of Kerugoya summoned the owners of the suit property to a meeting on 2nd March 2011. The plaintiffs attended the meeting together with the 1st and 2nd defendants. NJERU GATHENGE was already deceased but ZAKAYO NJOGU was un-well and the purpose of the meeting was because the 1st and 2nd defendants wanted to sell their shares. The other proprietors were however not ready to do so as there was already a dispute about their respective

shares and so the mayor told them to leave their documents behind. On 1st November 2011, the mayor summoned them to a meeting where the 1st and 2nd defendants were present together with the deputy mayor and town clerk and the deputy mayor informed them that there were people interested in buying the suit property. The plaintiffs were not agreeable and went to consult their lawyer who wrote a letter to the Council (Plaintiff’s Exhibit 4). The plaintiffs also placed a caution on the suit property and a similar restriction was placed by the Kirinyaga Criminal Investigation Officer. However, the plaintiffs later discovered that the 1st, 2nd and 3rd defendants together with ZAKAYO NJOGU had sold the suit property to one LAWRENCE NGIRIGACHA on 3rd November 2011 after the Council said it had no objection to the transaction. He said it was not possible for the suit property to be sold unless all the proprietors agreed to do so and further, that the sale proceeded notwithstanding the caution. The plaintiffs therefore filed this suit and the following were produced as exhibits:-

Green Card

Search

List of proprietors and their contributions

Letter of demand from the plaintiff’s advocate addressed to Kerugoya Municipal Council

Sale agreement between defendants and Lawrence Ngirigacha

Letter of no objection to the above transaction from the Council

Receipts for rates

Photographs of the suit property

MUNENE KATHENGE the 2nd defendant testified on behalf of the other defendants and confirmed that the suit property was given to the five (5) proprietors in 1953 and they all contributed towards its development. The 1st defendant was the chairman of the group while the late NJOGU CHOMBA (plaintiff’s father) was the Treasurer and the Secretary was ZAKAYO NJOGU. After developing the suit property, they

started renting it out in 1983 and agreed that each of the partners would be renting it out for two years and keep the rent with the treasurer. The plaintiffs’ father was the first to rent out the suit property but to-date his family has not allowed the other partners access into the suit property and so the other partners filed a complaint at the Business Premises Rent Tribunal in Nyeri. The other four (4) partners therefore decided to sell their shares to Lawrence Wachira Ngirigacha since each partner had one share and the transaction was approved by the Kerugoya Municipal Council. He therefore urged the Court to dismiss the plaintiffs’ claim and instead order the plaintiffs to give an account of the rent collected from the suit property. The 2nd defendant produced the following documents as defence exhibits:-

Lease of INOI/KERUGOYA/250/16

Minutes of the Council meeting of 24th January 2012 consenting to the sale of defendants share to Lawrence Ngirigacha

At the end of the trial, both Mr. Mbichire and Mr. Ngigi Advocates for the plaintiffs and defendants respectively filed their submissions.

I have considered the evidence by both parties, the documentary exhibits and the submissions by counsels and cases cited.

It is not in dispute that the suit property was registered in the joint names of the five (5) owners who included the plaintiffs’ father as tenants in common. The lease (Defence Exhibit 1) describes their ownership in the following terms:-

“To hold as tenants in common in equal shares”

It is the submissions of Mr. Mbichire therefore that as tenants in common no one could sell his share to any other person and in any event, when one co-owner dies, his share devolves to his Estate and not to the other co-owners. Therefore, the sale to Lawrence Ngirigacha was void and this Court should declare so. On his part, however, Mr. Ngigi took the view that since each proprietor had equal shares, the other owners were justified in selling their four (4) shares to Lawrence

Ngirigacha and that transaction was therefore legal. In any case, the said Lawrence Ngirigacha was not a party in these proceedings and therefore, no orders can be issued against him. Counsel cited the following cases:-

YOGENDRA PATEL VS PASCALE BAKSH & TWO OTHERS H.C CIVIL CASE NO. 617 of 1995 (NBI)

ASHIT PATANI & TWO OTHERS VS DHIRAJILAL PATTANI & TWO OTHERS 2014 e K.L.R.

As indicated above, the suit property is registered under the now repealed Registered Land Act. Section 103(1) and (2) of the said Act provides as follows about property held in common:-

103(1) “Where any land, lease or charge is owned in common,each proprietor shall be entitled to an undivided share inthe whole, and on the death of a proprietor his share shallbe administered as part of his Estate

(2) No proprietor in common shall deal with his undivided share in favour of any person other than anotherproprietor in common of the same land, except with theconsent in writing of the remaining proprietor orproprietors of the land, but such consent shall not beunreasonable withheld”emphasis added.

Similar provisions are found in Section 91(5) and (6) of the new Land Registration Act. Therefore, where land is held in common as in the position in this case, one co-owner must seek the consent of the other owner(s) before selling his share to a third party. In the case of SATIMA PEAK FARMERS LIMITED VS ONESMUS WERU (DECEASED) & 4 OTHERS 2013 e K.L.R, the Court of Appeal stated as follows about the rights of such co-owners:-

“….. We pose the question, is a co-owner of real property an agent of the other? Can his/her action bind the other owners? What are the rights of a co-owner inter sect and as against third parties who have notice of co-ownership? In RE HILTON (1990) 2 Chan 548 it was stated that when the legal estate is vested in all co-owners, they must act unanimously. One or two co-owners cannot act to sell the land to the exclusion of the other and none of the co-owners has the power to sell unless such power is exercised unanimously by all registered co-owners. The only thing that one co-owner has against the other is unity of possession of the suit property and nothing more”

It follows therefore that once the 1st plaintiff became registered as a co-owner of the suit property in place of his deceased father, all the other co-owners were obliged to seek his consent before selling their share to Lawrence Ngirigacha. This was not done and infact the sale of the defendant’s shares proceeded notwithstanding that there was a caution placed on the suit property. It is clear therefore from both the provisions of the law and the Court of Appeal’s decision in the case of SATIMA PEAK (supra) that Mr. Ngigi cannot be correct in his submissions that the transaction was proper and legal. Mr. Ngigi also

submitted that no orders can be made against the said Lawrence Ngirigacha as he is not a party in the suit. That is correct. However from the pleading, all that the plaintiffs seek are orders of injunction, declaration and taking of accounts, there is no mention of any orders being sought against Lawrence Ngirigacha. That appears to be the subject of another suit to be determined in a separate trial. Mr. Ngigi also referred to the case of YOGENDRA PATEL (supra) in which the Court (Githinji J.A) held, inter alia, as follows with regard to land held in common:-

“In my view, it is just that the first defendant should offer her share for sale, in the disputed properties to one or both co-owners as first priority and if they decline to buy or fail to offer acceptable price, then offer her shares for sale to other close family members. If that fails, then she can sell her shares to any other interested purchasers”

The situation herein is different from the one obtaining in that

case. Here, the plaintiff was never even given the first priority to purchase the property which is what Githinji J.A said in the YOGENDRA PATEL case (supra). During re-examination by his counsel, the plaintiff stated as follows:-

“I should have been given a first priority to purchase because my shares were highest”

The YOGENDRA PATEL case (supra) was also dealing with issues of trust which do not arise in this case.

The other case of ASHIT PATANI (supra) also cited by Mr. Ngigi dealt with issues regarding the sharing of property held in common. The issues in the case before me are whether a co-owner(s) can deal with property held in common without the consent of the other co-owners or whether the plaintiffs can be ordered to account for the rent collected on the suit property and also pay Special and General damages arising from that rent. The plaintiffs similarly sought orders for taking of accounts. And as is clear from what I have stated above,

the suit property was held by the parties herein as tenants in common and therefore, the consent of each co-owner was required before any dealings in the same. In the circumstances, the prayers for injunction and declaration sought by the plaintiffs are well merited.

Both the plaintiffs and the defendants sought orders for the taking of accounts against each other with respect to the rent collected from the suit property. In cross-examination by Mr. Ngigi the 1st plaintiff had the following to say about the issue of rent:-

“It is true that from 1983 to 2011, it is our family that has been collecting rent”

But pressed further, 1st plaintiff went on to change his testimony and said:-

“It is not true that we have been collecting rent from 1983 to 2011. It is the 1st and 2nd defendants who collect rent”

On his part, the 3rd defendant was categorical that it is the plaintiffs who have been collecting the rent. In his evidence in chief,

he said:-

“The first family to lease the property was to be NJOGU CHOMBA from 1983 to 1984. He is the father of the plaintiffs herein. But NJOGU CHOMBA gave it to his family in 1983 and upto now, the other partners have not been allowed to get into the said property”

The parties did also mention in the course of their testimony that the issue of rent had been resolved in the Business Premises Rent Tribunal. However, no material was placed before me to indicate when this was done or with what results although the 3rd defendant concedes that following that case, they were paid some money. As both sides seek the taking of accounts and in view of the contradictory statements being made by the parties, I find that this would be a proper case to order for the taking of accounts.

Taking of accounts is usually done by the Deputy Registrar or by any other party as the Court may direct. In NATIONAL BANK OF KENYA LTD VS PIPEPLASTIC SAMKOTI (K) LTD & ANOTHER (2001) K.L.R 112 the Court of Appeal stated as follows:-

“Taking and settlement of accounts is not done, normally by Judges. Order 19 Rule 1 of the Civil Procedure Rules provides that if a plaint prays for an account or where the relief sought or the plaint involves taking of an account, an order for proper accounts with all necessary inquiries and directions in similar cases shall be made”

The Court goes on to state as follows:-

“We reiterate that it is not for a Judge to take accounts. The reason is clear. It is not the job of a Judge to be an accountant. That is why Order 20 Rule 16 of the Civil Procedure Rules gives special directions as to taking accounts”

Order 21 Rule 17 of the Civil Procedure Rules 2010 gives special directions as to the taking of accounts in the following words:-

“The Court may, either by the decree directing an account to be taken or by any subsequent order, give special directions with regard to the mode in which the account is to be taken or vouched, and in particular may direct that in taking the account, the books of account in which the accounts in question have been kept shall be taken as prime facie evidence of the truth of the matter therein contained with liberty to the parties interested to take such objection thereto as they may be advised”

In view of the above and having found that this is a proper case for an order as to taking of accounts, I shall make appropriate orders shortly.

In their counter-claim, the defendants sought orders that the plaintiffs do pay general and special damages arising out of the rent collected from the suit property.

In my view, however, this remedy will adequately be met once on

accounts are taken in the matter. In any event, claim for special damages must be specifically itemized and proved which was not done in this case. That claim is therefore dismissed.

Ultimately therefore, upon considering the evidence by both sides, this Court makes the following orders with respect to the plaintiffs claim and the defendants counter claim:-

A permanent injunction is issued restraining the defendants, their agents, workmen, servants or any persons claiming through them or otherwise howsoever from dealing with the property known as leasehold INOI/KERUGOYA/250/16 without the consent of the plaintiffs as co-owners of the same

A declaration that any dealings on the property INOI/KERUGOYA/250/16 by the defendants without the consent of the plaintiffs as co-owners is illegal, null and void.

An order for the taking of accounts in respect of the rent collected from the properties erected on L.R No.

INOI/KERUGOYA/250/16 is made in the following terms:-

The parties herein do agree and appoint an independent accountant to take accounts between the parties and file his report within 60 days from the date of his appointment

In default of such agreement, each party to appoint an accountant and the two appointed accountants to appoint an umpire and the three to go through the documents in possession of the parties and prepare a report for filing in this matter within 60 days of the appointment of the umpire

Where the parties agree on one accountant, his/her costs will be shared equally by the parties. However, where three accountants are appointed, each party will bear the costs of his accountant while the costs of the umpire will be shared equally by the parties

Each party shall be at liberty to avail any books of accountsor other documents in their possession for consideration by the accountants/umpire as the case may be and either party shall be at liberty to raise any objection to the production of any such books and/or document as the case may be and the accountants/umpire shall make decisions on the same

Further orders of the Court shall await the filing of the report

Liberty to apply is granted

Each party shall meet their own costs of this suit.

B.N. OLAO

JUDGE

30TH SEPTEMBER, 2015

Explanatory note on delay

This judgment was due to be delivered on 25th June 2015 but I was bereaved and out the country until 7th July 2015 when I resumed duties and soon thereafter, the High Court vacation commenced. That caused the delay which is however highly regretted.

B.N. OLAO

JUDGE

30TH SEPTEMBER, 2015

30/9/2015

Before

B.N. Olao – Judge

Gichia – CC

Mr. Mbichire for Plaintiff – absent

Mr. Ngigi for Defendant – present

COURT: Judgment delivered this 30th day of September, 2015 in open Court.

Mr. Mbichire for Plaintiff – absent

Mr. Ngigi for Defendant – present

Right of appeal explained.

B.N. OLAO

JUDGE

30TH SEPTEMBER, 2015