[2024] KEELC 13696 (KLR)

Mwanjira (Suing as the Administrators of the Estate of Fatmah Kombo Nyamawi (Deceased)) v Mbisia (Environment & Land Case 195 of 2020) [2024] KEELC 13696 (KLR) (11 December 2024) (Judgment)

Neutral citation: [2024] KEELC 13696 (KLR)

Republic of Kenya

In the Environment and Land Court at Mombasa

Environment & Land Case 195 of 2020

NA Matheka, J

December 11, 2024

Between

Khamisi Athuman Mwanjira

Plaintiff

Suing as the Administrators of the Estate of Fatmah Kombo Nyamawi (Deceased)

and

John Mbisia

Defendant

Judgment

1. At all material times relevant to this suit, the Plaintiff is the registered proprietor parcel of land known as Jomvu-Alidina measuring approximately 42 by 120 Meters. Sometimes in the year 2006 the Plaintiffs late mother Fatmah Kombo Nyamawi (Deceased) entered into a Sale of Land Agreement for the sale of Land Premises measuring 42 by 120 meters at Jomvu-Alidina with the Defendant for an agreed price of Kenya Shillings One Hundred and Twenty Thousand (Kshs. 120,000/-). Subsequently, the Defendant herein paid a total of Kenya Shillings Thirty Thousand (Kshs. 30,000/-) of which receipt was acknowledged by Fatmah Kombo Nyamawi (Deceased) and the Plaintiff who, was a witness to the transaction. The Plaintiff avers that the Defendant after the payment of the first instalment of Kenya Shillings Thirty Thousand (Kshs. 30,000/-) went missing and was never to be seen nor heard from. To the Plaintiffs knowledge, the Defendant has not made any attempt to settle the aforementioned balance, neither has he been in communication since the demise of the Plaintiff’s mother and in turn the Plaintiff and the rest of the family continued to reside in the suit property and remained in quiet and peaceful possession thereof. Recently, sometimes in August 2020, certain individuals entered the suit property and started constructing a residential house in a section of the suit property. The said individuals said that they were under strict instructions to do so from the Defendant who claimed to be the proprietor of the area in which the construction of the residential house was being undertaken. The Plaintiff in utter shock and disbelief avers that it has been fourteen years (14) since they last saw and/or heard from the Defendant, who had breached the sale of land contract by failing to fulfill his end of the bargain. The Plaintiff further avers that the Defendant has not paid any amount in furtherance to the initial deposit of Kenya Shillings Thirty Thousand (Kshs. 30,000/-) and that the contract having stayed for fourteen years without execution has abated and is null and void to that extent. The plaintiff maintains that as a result of the Defendant's actions, his family have suffered irreparable damage in that they have been fraudulently and unlawfully dispossessed of the suit property as the Defendant continues to construct the residential house on the suit property. That at the moment, the Plaintiff and his family are squatters in their own land. The Plaintiff and her family have no other land to settle into except the suit property and their rights to own property under Article 40 (l) of the Constitution stand to be violated. The Plaintiff prays that judgment be entered against the Defendant for;1. A declaration that the purported sale of the suit parcel of land to the Defendant is statute-barred and unenforceable under the Limitation of Actions Act rendering its enforcement null and void as the same is abated.2. The Defendant is a trespasser on the suit land and that the Defendant's actions as are illegal. Prayer for general damages and mesne profits arising from the 2nd Defendant's unlawful acts.3. An order of a permanent injunction restraining the defendant, their servants, workmen and agents, from entering on and/or from erecting or causing to be erected thereon any structures, in any way interfering with the plaintiffs use and enjoyment of the suit property;4. Costs of this suit and any other relief the court deems fit to grant.

2. The Defendant states that he is the lawful and/or bonafide proprietor of all that parcel reference Title No. CR 2124 (Original No. 121/mainland V NORTH SECTION V, containing by measurement 42 by 120 Meters, situated at Jomvu-AIdina within Mombasa County. That vide land sale agreement dated 7th January 2007, agreement for sale dated 10th February 2007 and transfer of lease dated 10th February 2007, the Plaintiff, Khamisi Athman Mwanjira Alias Khamisi Kombo Mwanjira and his mother Fatuma Koloo Nyamawe absolutely sold and transferred all their rights, title and interests in and to the suit property, together with all buildings creations and improvements created and being thereon to the Defendant and his wife Purity John Syombua Maithya. That upon the successful completion of the transaction and transfer of the suit property to the Defendant and his wife as aforementioned the Plaintiff and his mother handed over a copy of the certificate of ownership of the parent title; all relevant completion documents and vacant possession of the suit property to date culminating in a phased Development thereon now comprising of two (2) residential units thereon. That the Defendant's development on the suit property was concluded in late October or early November, 2020, as depicted in the still photographs annexed to the defendant's list of documents. The Plaintiff (By Counter-Claim) prays that Judgment be Entered against the Defendant (By Counter-Claim), for:a.A Declaration that the plaintiff (by counter-claim) is the lawful, bonafide proprietor of all that Parcel Reference Title Number NO. CR 2124 (Original No. 121) Mainland v North Section V, containing by measurement 42 by 120 Meters, situated at Jomvu-AIdina within Mombasa County, together with all Buildings, Creations and Improvements created and being thereon.b.A declaration that the Entirety of Claims to Proprietorship by Defendant (By counter-claim) over Parcel Reference Title Number Title No.CR 2124 (Original No .121) mainland V North Section V, containing by measurement 42 by 120 Meters, situated at Jomvu-Aldina within Mombasa County, together with all Buildings, Creations and Improvements created and being thereon was, is and remains fraudulent and/or illegal therefore null and void ab initio;c.An order of permanent injunction do issue restraining the defendant (by counter-claim), whether by himself, his agents/employees/servants and/or anyone whosoever laying claim through him, jointly and severally, from entering into, dwelling upon , interfering with the plaintiff's open, peaceful, quiet, lawful, continuous, exclusive and uninterrupted possession, occupation, enjoyment and derivative use, and/or in any other manner whatsoever, dealing with and/or utilizing the suit property in any manner adverse to the plaintiff' s interest and/or if said party/ parties have entered upon the suit property said party/parties be evicted forthwith.d.Order directing the defendant (by counter-claim) to pay the plaintiff (by counter-claim) income lost 1st December, 2020. e.Costs of this suit and interest herein.

3. This court has considered the evidence and submissions therein. When the matter came up for hearing on the 6th June 2022, the Plaintiff and his Advocate were absent despite the date having been taken by consent. The court noted that the final adjournment was given on the 9th March 2022 and the Plaintiff’s case was dismissed and the court proceeded to hear the counterclaim. The Defendant testified that by a Land Sale Agreement dated 7th January 2007, Agreement for Sale dated 10th February 2007 and Transfer of Lease dated 10th February 2007, the Plaintiff, Khamisi Athman Mwanjira alias Khamisi Kombo Mwanjira and his mother Fatuma Koloo Nyamawe absolutely sold and transferred all their rights, title and interests in and to the suit property. Section 3(3) of the Law of Contract Act provides;“No suit shall be brought upon a contract for the disposition of an interest in land unless: -a)…..i)……ii)is signed by all the parties thereto; andb)The signature of each party signing has been attested by a witness who is present when the contract was signed by such party.”

4. This court has carefully considered the documents adduced by the defendant in this case. He produced the vide Land Sale Agreement dated 7th January 2007 (DEx2), Agreement for Sale dated 10th February 2007 (DEx3) and Transfer of Lease dated 10th February 2007 (DEx4). No evidence has been adduced by the Plaintiff that the Defendant had not completed the payment of the purchase price. All the sale agreements have been signed by the Plaintiff and his mother including the transfer form. It is upon the successful completion of the transaction and transfer of the suit property to the Defendant and his wife as the Plaintiff and his mother handed over a copy of the certificate of ownership of the parent title, all relevant completion documents and vacant possession of the suit property. The Defendant has produced photographs to show he has developed the land and constructed on it. This evidence was not controverted. This is a case of the Plaintiff hoping to benefit twice after selling the land to the Defendant. This suit was filed way back in 2020 and the Plaintiff’s conduct shows that he was not interested in prosecuting the matter as he wanted to continue benefiting from the suit property. Be that as it may, I find that the income lost has not been proved and the same will not be awarded. I find that the Defendant has proved his counter claim on a balance of probabilities and I make the following orders;1. A Declaration that the Defendant is the Lawful, Bonafide Proprietor of all that Parcel Reference Title Number NO. CR 2124 (Original No. 121) Mainland v North Section V, containing by measurement 42 by 120 Meters, situated at Jomvu—AIdina within Mombasa County, together with ALL Buildings, Creations and Improvements created and being thereon.2. An order of permanent injunction do issue restraining the Plaintiff, whether by himself , his Agents/Employees/Servants and/or anyone whosoever laying Claim through him, Jointly and Severally, from Entering into, Dwelling Upon Interfering with the Defendant’s Open, Peaceful, Quiet, Lawful, Continuous Exclusive and Uninterrupted possession, occupation, enjoyment and derivative use, and/or in any other manner whatsoever, dealing with and/or Utilizing the Suit Property in Any Manner Adverse to the Defendant' s interest and/or if said Party/Parties have entered Upon the Suit Property said Party/parties are to vacate within the next 30 days upon service of this order and in default eviction order to issue.3. Costs of this suit to be paid by the Plaintiff.It is so ordered.

DELIVERED, DATED AND SIGNED AT MOMBASA THIS 11TH DAY OF DECEMBER 2024. N.A. MATHEKAJUDGE