[2023] KEELC 22069 (KLR)

Muturi v Kimuyu (Environment and Land Appeal E004 of 2023) [2023] KEELC 22069 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22069 (KLR)

Republic of Kenya

In the Environment and Land Court at Muranga

Environment and Land Appeal E004 of 2023

LN Gacheru, J

December 7, 2023

Between

Mwihia Muturi

Appellant

and

Ngei Kimuyu

Respondent

(Being an Appeal from the Ruling of Hon. Edwin Nyagah Muriuki delivered on 26th January 2023 in Muranga Chief Magistrates Court ELC No. 62 of 2020)

Judgment

1. The Appellant herein is the Defendant in MCELC 62 of 2020, while the Respondent herein is the Plaintiff. The said matter is still ongoing before the trial Court.

2. By a Notice of Motion Application dated 28th October 2022, the Plaintiff who is the Respondent herein sought for orders against the Defendant who is the Appellant herein that: -1. That the Defendant, his servants, agents and/or anyone claiming through or under him be restrained by way of interim injunction from interring/burying the remains of Sarah Mwihia, in Land Parcel Number [particulars witheld], on 29/10/2022, or any other time thereafter pending the hearing of this application inter parties.2. That the O.C.S Kakuzi Police Station be ordered to ensure compliance with this order3. The costs herein be provided for.

3. The Application was premised on six grounds set out on the face of the said application and on the Supporting Affidavit of Ngei Kimuyu, sworn on 28th October 2022. In the said Supporting Affidavit, Ngei Kimuyu deponed that he was the legitimate and the legal/equitable owner of the suit land known as Land Parcel Number [particulars witheld], and he had sued the Defendant(Applicant herein) seeking to evict him from his land. That the Defendant was on the land illegally and his original entry was unlawful. Further, that the Defendant had no registerable interest over the suit land under the Land Registration Act. That the Defendant had the intention to inter the remains of Sarah Mwihia, on the said Suitland on 29/10/2022, without his consent and/or authority. That he stands to suffer prejudice if the remains of the late Sarah Mwihia are interred on his land on 29/10/2022, or anytime thereafter and that the balance of convenience tilt overwhelmingly in his favor.

4. The Application was opposed by the Defendant/Appellant via the Replying Affidavit of Mwihia Muturi sworn on 31st October 2023. Mwihia Muturi deponed that he was the legal and beneficial owner of one acre of land excised from Land Parcel Number [particulars witheld]. That the Plaintiff/Applicant’s application was marred with falsehoods and/or distortion of facts. That he had paid Kshs.475,000/= to the Plaintiff as part consideration for the said one acre. That the agreed purchase price was Kshs.500,000/= and therefore his payment amounted to about 95% of the purchase price. That his wife's burial was not scheduled for 29/10/2022, as her remains were still being held at Kenyatta National Hospital, owing to an unpaid bill of Kshs.300,000/=.

5. He also averred that he had built on the suit land and had lived there for 9 years. That the suit had been advanced due to the Plaintiff’s selfish interest to resell the property at a higher price. That he purchased the One acre of land from the Plaintiff/Applicant via a sale agreement dated 26th November 2013, for a consideration of Kshs.500,000/=.

6. That as per the said sale agreement, he was to pay Kshs. 410,000/= at the time of signing and the balance of Kshs.90,000/= at the time of execution of the transfer documents, which are yet to be signed to date. That the Plaintiff/Applicant was not the registered owner’ as he had never transferred the land to himself from the previous owner. The Defendant had also averred that he had fulfilled his obligations in the sale agreement, but the Plaintiff/Applicant had faltered. That the prejudice/loss if any to be suffered by the Plaintiff/Applicant can be compensated by way of damages and therefore the orders for injunction cannot be sustained. Finally, that the Plaintiff/Applicant was not entitled to the orders sought and the application should be dismissed with costs.

7. The application was canvassed via written submissions and on 26th January 2023, the trial court delivered a ruling in favor of the Plaintiff/Applicant and stated as follows;“Each of the parties herein claims to be the legal beneficiaries and/or equitable owners of Land Parcel Number [particulars witheld “suit property". I have perused the pleadings herein and direct/order that the status quo be maintained pending hearing and determination of the suit”

8. The Appellant(Defendant) was aggrieved by the above determination of the Court and has sought to challenge the said Ruling through a Memorandum of Appeal dated 2nd February 2023, and sought for orders that;-1. The Ruling of the Honourable Magistrate Edwin Nyagah Muriuki (Mr.) delivered on 26th January 2023 be set aside.2. The Appeal be allowed.3. The Honourable Court do give such orders as the interest of Justice requires.4. That the appellant be awarded costs in this court and the court below.

9. The grounds of Appeal are: -1. The learned trial Magistrate erred in fact and law by failing to evaluate and adequately address the import of the averment made in opposition of the Plaintiff's application dated 28th October 2022, and thereby failed to appreciate this strength of the Defendant/Appellant’s case.2. The learned trial Magistrate erred in law and fact in the way he weighed the averments and other evidential material before him.3. The learned trial Magistrate erred in fact and law by failing to appreciate the dispute between the parties revolved around two competing equitable rights that would not have been defeated by mere internment (sic) of the deceased on the suit properties.4. The learned trial Magistrate erred in fact and law by establishing that conflict in ownership of land ought to have been resolved fast as opposed to a burial disputes (sic).5. The learned trial Magistrate erred in fact and law by claiming that allowing internment (sic) of the Appellant's late wife would affect the proprietary rights over the suit property pending the substantive hearing of the suit.6. The learned trial Magistrate erred in law and fact by ignoring, disregarding, and /or failing to appreciate the submissions of the Appellant in his Ruling thus rendering a one-sided passive ruling.7. The learned trial Magistrate erred in law and fact by advancing the Respondent's falsified arguments without appreciating the strong Appellant’s response and evidential proof provided.8. The learned trial Magistrate erred in fact and law by failing to be guided by previous decisions and/or precedents relevant to burial disputes akin to the issues of conflict between parties herein thus he declined to be persuaded by the applicable law and relevant case laws.9. The learned Magistrate erred in fact and law by failing to find the case before him was a suitable case to exercise his discretionary power to establish and grant Equity, to wit: He who comes to Equity must come with clean hands, Equity will not suffer a wrong to be without a remedy, Equity delight in Equality, Equity will not allow a statute to be used as a cloak for fraud. et cetera10. The learned Magistrate misdirected himself and arrived at an erroneous conclusion.

10. On 25th May 2023, the Court directed that the Appeal be canvassed by way of written submissions. However, at the time of writing this judgment, the Court did not peruse any submissions as there were none on record from both parties.

11. This Court has carefully considered the Appeal herein, the pleadings and evidence presented before the trial Court. As a first appellate court, the duty of this court is first to comply with the requirements under section 78 of the Civil Procedure Act. It is long established that the role of this court on first appeal is to re-evaluate all the evidence availed in the lower court and to reach its own conclusions in respect thereof, as was restated in case of Oluoch Eric Gogo v Universal Corporation Limited [2015] eKLR and in Peter M. Kariuki v Attorney General [2014] eKLR, where the court held inter alia as follows:“We have also, as we are duty bound to do as a first appellate court [to] reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence. See Ngui v Republic [1984] KLR 729 and Susan Munyi v Keshar Shiani, Civil Appeal No. 38 of 2002 (unreported).”

12. The above holding captures the locus classicus decision in the case of Selle v Associated Motor Boat Co. [1968] EA 123 where it was held that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally."

13. Further, this Court notes that the instant Appeal revolves around the issue of whether the learned trial Magistrate exercised his discretion properly in issuing an Order of status quo in the Ruling dated 26th January 2023, with regards to the application dated 28th October 2022, filed by the Respondent/Plaintiff herein.

14. Before this Court can interfere with such discretion, it must be satisfied that the learned trial Magistrate misdirected himself in some matter and as a result arrived at a wrong decision or that he misapprehended the law or failed to take into account some relevant matter. Madan, JA (as he then was) captured the principle more succinctly in the case of United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd (1985) EA 898 as follows:“The court of appeal will not interfere with the discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to various factors in the case. The court of appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account or fifthly, that his decision, albeit a discretionary one, is plainly wrong."

15. Having now carefully read and considered the Record of Appeal, the Grounds of Appeal, and the Ruling by the trial Court, the Court finds that the issue for determination is whether the Appeal is merited.

16. What flows from the evidence, pleadings, and the record before this Court is that the Respondent/Plaintiff herein claims legitimate ownership over the suit Land Parcel Number [particulars witheld], and he filed Muranga CMC ELC No 2 of 2020, to evict the Appellant/Defendant. He alleges that the Applicant/Defendant has no registerable interest over the suit land, and should not be allowed to bury the remains of his deceased wife on the Parcel of Land said Parcel of land.

17. The Appellant(Defendant) on the other hand claims that he has a beneficial interest over the suit land, having entered a sale agreement over the same with the Respondent(Plaintiff) and thereafter, he entered into the suitland.

18. It is not in dispute that the Respondent(Plaintiff) and the Appellant(Defendant) entered into a sale agreement dated 26th November 2013, for the purchase of one acre of land to be excised from the suit land for an agreed purchase price of Kshs.500,000/=. The Appellant(Defendant) herein alleges that he had paid Ksh.475,000/= to the Respondent while the Respondent alleges that the Appellant(Defendant) only paid Kshs.410,000/= and has failed to pay the remaining balance hence frustrating the contract.

19. The main suit in which the rights of the parties over the suit property would be conclusively determined is yet to be heard.

20. From the material placed before this Court, the dispute between the Respondent(Plaintiff) and the Appellant(Defendant) herein has been in our Courts since 2020. For all that period the Appellant has been residing on the said parcel of land. In fact, the Respondent had stated in his Replying Affidavit which information is uncontroverted that he has resided on the suit land for the last 9 years consecutively.

21. As it were, the Respondent's claim to the land arises as a result of a sale agreement, which he alleges was frustrated by the Appellant(Defendant’s) nonperformance. It is evident that before the filing of the said suit in the trial Court, the Appellant was and remains in occupation of the said parcel of land to date. From the averments made in the Plaintiff’s (now Respondent’s)Supporting Affidavit, he asserts that he will be highly prejudiced if the Respondent inters his late wife on the suit property during the pendency of this matter and hence the application herein dated 28th October, 2022.

22. This Court is however not persuaded that such burial if it takes place shall occasion the Respondent/Plaintiff irreparable loss or damage. From the material presented before this Court, the Appellant purchased the parcel of land in question for a sum of Kshs. 500,000/= and he has paid a substantial amount of the same. The balance as per the said sale agreement was to be paid to the Respondent once he submitted signed transfer forms. This Court has not perused any such transfer documents and it is the uncontroverted evidence of the Appellant(Defendant) that these forms have never been signed by the Respondent herein. In addition, it is the uncontroverted evidence of the Appellant(Defendant) that the Respondent/Plaintiff is not even the registered owner of the suit land.

23. Based on the forgoing, this Court is of the view that the Respondent’s interest in the parcel of land is quantifiable and may be compensated by way of damages at any rate. In any case, the body of the deceased could always be exhumed if at the end of this case, it is determined that the Respondent is the rightful owner of the land.

24. On the other hand, this Court takes note of the fact that when it comes to the disposal of the body of a married woman, the Spouse would ordinarily play a leading role. Both the Appellant and his wife have lived on the disputed parcel of land for over 9 years. During that period, they used the land through cultivation, building of houses, and other normal activities without restriction. Emotionally the Court opines that the Appellant stands to suffer more prejudice if the orders sought herein are not granted. The remains of the Appellant’s wife appear to have been held at Kenyatta National Hospital, for the last one year owing to the status quo orders granted by the trial Court. It is this Court's view that the balance of convenience tilts in favor of the Appellant(Defendant)and this Court proceeds to set aside the Ruling of the trial Court delivered on 26/1/2023, stopping the Appellant from burying his wife at a place they have both jointly called home for more than 9 years.

25. Accordingly, it is this Court's view that the balance of convenience tilts in favour of the Appellant/Defendant in the circumstances herein. As a result, the Appeal is found merited and the same is it allowed entirely with costs to the Appellant.

26. The Orders of status quo issued on 26th January 2023, be and are hereby set aside and replaced with an Order that the Notice of Motion Application dated 28th October 2022, be and is hereby dismissed entirely with costs to the Defendant/Respondent in the said Application of 28th October 2022, who is the Appellant herein..

27. Costs of this Appeal shall be to the Appellant.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 7TH DAY OF DECEMBER, 2023. L. GACHERUJUDGEDelivered online in the presence ofM/s Mwangi holding brief for Mr. Njoroge for RespondentAppellant present in personL. GACHERUJUDGE7/12/2023