[2023] KEELC 572 (KLR)

Mugambi v Ayub (Environment and Land Appeal E067 of 2021) [2023] KEELC 572 (KLR) (8 February 2023) (Judgment)

Neutral citation: [2023] KEELC 572 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment and Land Appeal E067 of 2021

CK Nzili, J

February 8, 2023

Between

Samuel Mutugi Mugambi

Appellant

and

Lawrence Bundi Ayub

Respondent

Judgment

1. By an amended memorandum of appeal dated 6. 10. 2021 the appellant faults the judgment dated 29. 4.2020 for failing to appreciate and find that he had been in occupation of the suit land in excess of 12 years effectively making claim based on trespass time bared; for wrongly admitting evidence not supported by pleadings yet parties are bound by their own pleadings; finding in favour of the respondent yet no evidence was adduced to support his claim failing to consider his evidence, facts and the law; finding that the respondent was entitled to the reliefs sought including the assessment of general damages for trespass.

2. The role of an appellate court of the first instance has been subject to a plethora of cases. In the case of Fanikiwa Ltd v Sirikwa Squatters Group & 17 others [2022] KECA [1286] (KLR) (18th November [2022] Judgement), the court stated that as a first appellate court, it had to proceed on the basis of a re-hearing cognizant of its duty to subject the whole evidence to a fresh and exhaustive analysis and re-evaluation so as to draw its own independent inferences of facts and conclusion on the matter.

3. The primary documents in this appeal are the amended plaint dated 18. 12. 2012 in which the respondent as the registered owner of LR No. Kiamuri A/1087 the suit property, which was an inheritance from his late father on account of transmission, for trespass to the suit property alleged to have occurred on 2. 11. 2012 and the subsequent erection of a temporary structure therein. He sought for a permanent injunction and for the removal of the said structures. The amended plaint was accompanied by a copy of a green card, title deed, notice to remove caution and a demand letter and witnesses statements and a further list of documents dated 15. 3.2019 and 6. 6.2019.

4. Through a statement of defence and counterclaim dated 3. 1.2013, the appellant denied the contents of the amended plaint. The appellant claimed that he had been in occupation of the suit land since 1984 long before registration of the land whereof he had made extensive developments with no interruption from anybody. Further, the appellant averred that the registration in the name of M’Mburugu M’Kazongo and Ayub Kithinji Mutea was fraudulent in total disregard of his interests against his caution or occupiers interest doing it secretly and by failing to pay the correct statutory fees.

5. By way of a counterclaim, the appellant averred that he bought the suit land in 1984 from one Mutea M’Ngatu, took vacant possession and made various developments and occupation rights by the respondent and in particular alleged that the registration in the names of the respondents was tainted with fraud and irregularities as pleaded in the defence in total disregard of his occupiers’ interests.

6. Additionally, the appellant pleaded that the respondent was merely holding the land in trust for him since he held a purchaser’s interest; he bought the land and was put into possession since 1984; the respondent never sought for vacant possession since 1984; taking advantage of his ignorance, naivety and lack of exposure and lastly, holding the land without any right or interest.

7. Further, the appellant pleaded that in October 2012, the matter was referred to the district committee who upon listening to the parties directed him to continue utilizing the land. The appellant therefore sought for a declaration that the respondent held the land in trust to the extent of three acres thereof.

8. In a reply to defence the 2nd defendant to the counterclaim, the respondent denied the alleged occupation and developments by the appellant since 1984 as the appellant lives in Kagiri village that upon a report to the police he vacated the land until November 2012.

9. In defence to counterclaim, the respondent averred that this late father acquired the land by way of purchase in 1994 took vacant possession and embarked on developments thereon. The respondent averred that the late M’Mburugu M’Kazongo was the 1st registered owner and if the appellant had any interest, he would have raised the objection at the adjudication stage.

10. In reply to defence to counterclaim, the appellant averred that there was never any developments or occupation by either the respondent or his late father on the land; that he could not raise any objection during the adjudication process or the subsequent registration and insisted that he was entitled to the reliefs in his counter claim. The appellant relied on witnesses’ statement dated 19. 5.2016.

11. At the hearing, Edith Mutwiri testified as PW1 on account of a power of attorney donated to her as the respondent was said to have relocated to the USA. She adopted her witness statement dated 18. 12. 2012 as her evidence in chief. Her testimony was that the suit land was initially family land which her late father used to cultivate and after his death, her brother the respondent took over. She stated that in 2006, she established a caution had been placed on the title by the appellant following the death of her late father to which as the legal administrator of the estate of her father she made a complaint to the land registra which the appellant failed to respond to despite service with summons to attend to show cause why it should not be removed.

12. That eventually the caution was removed and the land transmitted to the respondent. PW 1 told the court that she was the one who had been working on the land until April 2012 when the appellant trespassed into it and allegedly ploughed and planted crops on top of hers. PW 1 stated that she made a report to the area chief and the D.C who warned the appellant to cease his unlawful acts. The witness further told the court that the appellant had also erected a temporary shade on the land and had persisted in his acts of trespass despite warning.

13. In support of her evidence, PW 1 produced a green card for LR No.1087 showing the name of her late father as P. Exh No. (1), a green card indicating the respondent as the owner as P. Exh No. (2), notice to the appellant to remove the caution dated 21. 4.2011 from the land registrar as P. Exh No. (3) a demand letter dated 7. 11. 2012 as P. Exh No. (4), certificate of postage as P. Exh No. (5), D.C.C letter dated 17. 10. 2012 as P. Exh No. (6), letter dated 22. 10. 2012 as P. Exh No. (7), letter by chief Kiagu location as P. Exh No. (8) notices of intention to remove caution as P. Exh No. (9), letter from chief Kiagu dated 10. 6.2011 as P. exh No. (10).

14. PW 1 said that this late father acquired the land through purchase from one M’Mburugu M’Kazongo in 1994, started cultivation when the land was vacant until he passed on in 1995 while their mother also passed on in 2005. PW 1 told the court that after the succession cause, she visited the land to align the boundary and that during the succession cause, the land was shared out to the respondent and Timothy Kirimi Mutua who eventually transferred his share to the respondent. PW1 disputed the assertion that the appellant had bought the land from one M’Mutua M’Ngatu since the alleged seller never owned the suit land and his name never featured anywhere in the adjudication register or record which she perused and ascertained the status of the land registration.

15. PW 1 said that after aligning and rising the beacons in 2010, the appealant came in and removed following which a report was made with the police. Regarding the caution, PW 1 told the court notices were sent to the appellant to show cause why it should not be removed but was in vain and after three notices, the same was removed. She denied any alleged fraud or occupation prior to and during the sale and transfer to the respondent’s names. PW 1 told the court that efforts to remove or warn the appellant to stop entering and cultivating the land were in vain hence the suit.

16. DW 1, the appellant herein adopted his witness statement dated 19. 5.2016. His testimony was that he bought the suit land in 1984 form one Mutea M’Ngatu prior to the adjudication process, took vacant possession and started utilizing it by building a house, pit latrine and planting nappier grass, sisal plants, food crops and assorted trees. He insisted that neither the respondent nor his relatives had ever entered into, occupied or developed the suitland. Further, DW 1 said that being a Mutharaka and not a Muimenti the respondents were out to defraud him of his land yet they were aware of his occupation, cultivation and ownership rights. He stated that the registration of the land by the previous two owners was tainted with fraud since he was in occupation and secondly, that of the respondent was also marred by fraud in removing the caution, failing to notify him during the succession cause and taking advantage of his ignorance, illiteracy and lack of exposure.

17. DW 1 insisted that when he was summoned by the DC, OCS and the chief in October 2012, they made a decision that the land should revert to him.

18. Further, DW 1 testified that the respondent held the land in trust for him since he was aware at registration that he was in occupation, had lawfully bought the land in 1984 and that he took advantage of his illiteracy, ignorance and or lack of exposure.

19. DW 1 also said that the respondent only came to the land in 2012 and the only reason was because there was a dispute over the land between people from Imenti and those from Tharaka area.

20. DW 1 admitted in cross examination that his home was in Kamabuu Nthima sublocation which was 2 ½ kms from the suitland. He was however unable to produce any ownership documents by way of purchase or registration.

21. During the sale, DW 1 said that he had witnesses including his wife though the land was not demarcated at the time since this occurred late on 1991. Asked about the adjudication process, DW 1 said that tribal disputes started soon thereafter hence he was unable to be adjudicated the land. Though he came to know the recorded owner, DW 1 admitted that he did not lodge any claims over the land during the adjudication process or inform the seller since he had also passed on. DW 1 told the court that after lodging the caution in 1988 he never received any alleged letters or go back to the land registry to follow up on his caution. He insisted that the was the one in occupation and that any developments therein belonged to him including the structures built on 19986. He admitted there was court order authorizing him to remain on the land.

22. Following the closure of the defence testimony parties filed written submissions dated 28. 1.2020 with the respondent relying on the case law of Odoyo Osodo v Rael Obara Ojuok & others [2017] eKLR Nyangate Guto alias Watson Mogere Mogoko v Maxwel Okemwa Mongoro & another [2015] eKLR, CBK v Trust Bank Ltd & others [1996] eKLR MWK v JKM & another (2013) eKLR, Moses Kariuki Wachira vs Joseph Murithi Kanyita & others [2016] eKLR. On the other hand, the appellant filed written submissions on 5. 2.2020 in person relying on the Land Act (Cap 284) Article 27 (4) & (5) of the Constitution, (Psalms Law of God the creator of heaven and Earth) Psalms 24. 1, Proverbs 15:34 and Revelation 14 (6) & (7). He urged the court to grant him the 3 acres out of long occupation of 37 years. He also urged the court to allow the parties to take a traditional oath.

23. In a judgment delivered on 29. 4.2020, the court found that there was no sale agreement by the appellant as a basis of his claim or any other evidence to challenge or entitle him to occupy the land. The court dismissed his counter claim and allowed the respondents suit.

24. In this appeal, parties with leave of court opted to canvass the same by way of written submissions dated 17. 11. 2021 respectively.

25. The appellant submitted under grounds No’s 1, 2, 3, 6 & 8 of the appeal that the trial court for failing to appreciate the appellants evidence which was not shaken as to entry into the land in 1984 and his placing of caution in 1998. So, since the claim for recovery of land was brought contrary to Section 4 (a) & (7) of the Limitation of Actions Act, trespass could not ensue after 35 years hence the respondent was not entitled to an order of injunctions or general damage based on trespass.

26. Concerning grounds 4, 5 & 7, it was submitted that the appellants claim was pegged on fraudulent registration of land against not only the respondent but his predecessors in title.

27. Given the evidence at page 153 of the record of appeal on both occupation and possession since 1984, the appellant submitted that the trial court ought to have made a finding that the respondent was a total stranger to the land coming this in 2012. Incidentally, the appellant submitted the trial court treated his evidence with contempt or a lightly ignoring it more so the aspect of tribal dispute between Imenti and Tharaka people. Reliance was placed on Lucy Karauki Kirambi v Muthengi M’Mwanthi Muthigu & 2 others [2019] eKLR, Kiebia v M’Lintari [2019] on the aspect of the burden of proving or disproving a fact and at the court of appeal on the failure by respondent to prove that the appellant was not the owner of the land.

28. Coming to ground No’s. 8 and 10 of the appeal, the respondent submitted that general damages for trespass had not been prayed for yet parties are bound by their pleadings. Reliance was placed on Mary Onyango v South Nyanza Sugar Co. Ltd [2019] eKLR, Erastus Kihara Mureithi v Josephat Njoroge Ragi & 2 others [2011] eKLR and Alex Gichira Mwatha vs Joshua M Mina [2016] eKLR, Mwangi M’Abanya v Festus Muriungi [1994] eKLR and Kenya Hotels Properties Ltd v AG & 5 others [2018] eKLR.

29. On his part the respondent on ground No. 1 of the appeal submitted that the ground itself admits both ownership and trespass yet the said ground was not raised that the trial court since there was no pleading on adverse possession, reliance was placed on Joseph Ochieng & 2 others vs First National Bank of Chicago [1991] eKLR and Kenya Hotels Ltd v Oriental Commercial Bank Ltd [2018] eKLR on the raising of new issues at the appellate stage. Eustace N Paul & 3 others v Juntus Paul Njeru Kangicu [2021] eKLR.

30. As to ground No’s. 2, 3 & 4 of the appeal, the respondent submitted that the evidence of PW 1 was consistent. On the registration, removal of caution and the failure of the appellant to raise any objection during and after the adjudication process. Reliance was placed on Odoyo Osodo v Rael Obara Ojuok (supra), Nyangete Guto (supra) & CBK v Trust Bank (supra)

31. On ground No. 5 of the appeal, the respondent submitted that no constructive trust was proved in line with the holding in NWK v JKM (supra), Moses Kariuki Wachira v Joseph Murithi Kanyitaa (supra) and the Kiebia case (supra).

32. On ground No’s 6, 7, 8, 9 & 10 of the appeal, the respondent submitted that the trial court considered the evidence and pleadings and correctly found the appellant a trespasser hence the decision was wise, sound and anchored both in statute and case law.

33. The court has carefully gone through the pleadings, the evidence tendered, the judgment, the ground of appeal, written submissions both before the trial court and before this court. The issues for my determination are:-(i)Whether the respondent pleaded and proved any ownership rights protectable in aw by way of a permanent injunction and removal of the alleged illegal structures on the suit land.(ii)If the appellant pleaded and proved any entitlement to the suitland by virtue of ownership, long occupation and or trust protectable by law.(iii)If the parties were entitled to the respective reliefs prayed for in their pleadings.

34. The primary pleadings before the trial court were the amended plaint dated 18. 12. 2012, statement of defence and counterclaim dated 3. 1.2013, reply to defence and defence to counterclaim dated 18. 1.2013 and reply to defence to counterclaim dated 23. 1.2013.

35. In the said pleadings, parties set out the parameters of their claims, counterclaims and defence. Unlike the amended plaint the defence and counterclaim was not accompanied by any list of documents in support of the defence or the counterclaim.

36. Nevertheless, both parties filed issues for determination and case summary dated 24. 9.2014 and 24. 9.2015 respectively. So, at the time the two parties embarked on the hearing each knew the issues for the court’s determination. On the part of the respondent, he filed four lists of documents dated 10. 12. 2012, 18. 12. 2012, 15. 3.2019, incorporating the power of attorney dated 18. 12. 2012 duly registered on 15. 1.2016 and lastly, a list dated 15. 3.2019.

37. At the time the respondent took the witness stand and produced all these exhibits, none of them was objected to or challenged by the appellant regarding the manner of the acquisition, transfer and registration of the suitland from the initial registered owner to the respondent at the time of the hearing.

38. The respondent in line with the pleadings aforementioned gave a paper trail on when and how he acquired the land.

39. The appellant had pleaded in his defence and counterclaim that the acquisition, transfer and registration of the suitland was tainted with irregularities, illegalities and fraud. It is trite law that fraud or illegality must be strictly pleaded and proved to the required standard. That was the holding in Arthi Development Ltd and Virjay Morjaria. The respondent laid bare his documents of ownership rights from inception and served them upon the appellant. The appellant never caused any of the said documents to be forensically examined and or subjected to scrutiny by the issuing government agencies. The appellant never pointed out any specific irregularities or illegalities in the said documents at the trial.

40. It has been held that written submissions cannot amount to evidence. See D.T Arap Moi vs Stephen Murithi.

41. A party wishing to impeach a title deed both in the process, prior to and after registration of land must bring tangible and cogent evidence to show that the title holder was not the true owner or that there was impropriety or procedural missteps during the registration of the suitland.

42. In the present suit, the appellant never poked holes now being raised through written submissions during the trial. The issue of adverse possession was never pleaded and or proved during the trial at the primary court.

43. The law is that parties are bound by their pleadings and may not travel outside the contours they have set in their pleadings. See Raila v IEBC & Stephen Mutinda Mule v IEBC.

44. In this instance, the appellant is faulting the trial court on issues which did not form part of his pleadings at the trial and which he never advanced during his evidence. The appellant never produced any demarcation book or record of existing rights, adjudication register and perhaps a single complaint letter to the land adjudication committee at the time the adjudication process was going on. The appellant testified that his home was barely 2 ½ kilometers from the suitland. He however gave the reason for non-participation during the adjudication exercise as the tribal clashes or dispute between Imenti and Tharaka people. No documentary evidence was tendered that there was such a tribal clash and perhaps a report made by the appellant to the relevant authorities for security so as to participate in the adjudication exercise. It is inconceivable that the appellant would want the court to believe that he was in continuous occupation and possession of the suit land since 1984 to present and at the same time admit that he never saw the land adjudication team on the ground and was unable to register and cause for ascertainment of his interest during the exercise. It cannot be true that he was unable to attend such an important exercise which ascertains his interest on the land, yet state that he has been farming and or developing the land through out to the exclusion of the true owner. If at all the version of the appellant is to be believed, then it means he slept on his rights, became indolent and or ignored the whole exercise to his own detriment. When and how he came to realize that the respondent had committed fraud and registered himself as the true owner was not stated or pleaded.

45. Similarly, the copy of records produced clearly indicated that the register was opened on 12. 11. 1992 in favour of M’Mburugu M’Kazongo who later on transferred the land to the respondent’s late father on 10. 5.1994. The appellant only filed a caution on 21. 9.1998. No evidence was produced to prove that the alleged seller of the land to the appellant had any proprietary rights to the land. The appellant never called witnesses to advance his claims on both ownership and occupation since 1984.

46. The appellant failed to explain out why he registered a caution and failed to follow it up. Documents produced indicated that notice to show cause was served upon him through both registered mail as well as through his local chiefs. The appellant blamed the respondent for orchestrating a fraud by the removal of the caution. The evidence tendered was that it was removed by the land registrar. The appellant never lodged any complaint against the land registrar regarding the removal and registration of the respondent as the new owner and for the issuance of a title deed.

47. It is not enough to make wide allegations, supposition, speculations and or cast aspersions on government officers without rebutting the presumption of regularity or legality as provided under the law.

48. In this instance, it was not the respondent who adjudicated the land and registered it under his name. It was done by statutory bodies and officers mandated to undertake the process.

49. The appellant failed to call the said officers and explain out how they may have ignored his presence and or developments on the suit land in favour of the respondent and his predecessors in title.

50. Coming to the issue of trust the law is that the parameters set out under Kiebia case must be met namely; that the property prior to registration was family, clan or group land; that the claimant belonged to the clan, family or group; that the claimant would have been the recorded owner were it not for some intervening circumstances; that the claim is directed at a registered owner who belongs to that claim.

51. As to the nature of trust, namely constructive trust or resultant trust, the law is that a party must show that the respondent ignored his presence on the land and took advantage of the situation and unjustly enriched himself at his expense. In this suit, the appellant never produced evidence by way of a sale agreement, or a memorandum to that effect.

52. Similarly, the appellant never procured an eye witness who was present during the sale of the land.

53. In absence of that, my finding is that the appellant never discharged the burden of proof to found his claim on the land by virtue of purchase, adverse possession or trust. Section 3 (3) of the Tresspass Act (Cap 294) defines who is a trespasser, as a person on the land of another without permission, consent, approval or justificiaotn. Having found the respondent as the true owner of the land who testified armed with legal documents it goes without saying that the appellant was unable to justify his presence on the land of the respondent for all those years.

54. It was admitted that the respondent was dispossessed of the land and had asserted his rights involving all other governments agencies to warn the appellant to step out in vain until he took the last resort, the filing of this suit. The appellant admitted that the had been procuring farm produce from the suit land even after establishing the clear ownership documents in 1998.

55. Therefore, other than a permanent injunction the court has to make a finding that crime does not pay. The trial court cannot be faulted in any way for finding the suit against the appellant proved and his counterclaim lacking merits based on the facts, evidence and the law.

56. Consequently, the appeal lacks merits and it is dismissed with costs.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT THIS 8TH DAY OF FEBRUARY, 2023In presence of:C/A: KananuWambua for respondentMurango Mwenda for appellantHON. C.K. NZILIELC JUDGE