[2022] KEHC 10529 (KLR)

Ndungo v Muruguru (Civil Appeal 311 of 2004) [2022] KEHC 10529 (KLR) (Civ) (17 June 2022) (Judgment)

Neutral citation: [2022] KEHC 10529 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 311 of 2004

JK Sergon, J

June 17, 2022

Between

Kyalo Ndungo

Appellant

and

Pauline Muthoni Muruguru

Respondent

(Being an appeal against the judgment and decree delivered by N.A. Owino (Mrs.) (Senior Resident Magistrate) on 22nd April, 2004 in Milimani CMCC no. 9492 of 2001)

Judgment

1. The respondent herein instituted a suit against the appellant and Nairobi City Council (“the 2nd defendant”) by way of the plaint dated 17th October, 2001 and sought for reliefs in the nature of an injunctive order restraining the appellant from encroaching on or in any way interfering with the respondent’s enjoyment of Plot No. 4 – 1 Kayole Commercial Zone II (“the subject property”) and an order compelling the 2nd defendant to revoke any title issued to the appellant in respect to the subject property or in the alternative, the appellant be ordered to pay to the respondent the full value of the subject property.

2. The respondent pleaded in the plaint that sometime on or about the 13th day of July, 1998 she purchased the subject property from one Nancy Wambui Kimani the latter of whom had received the subject property from the 2nd defendant by way of an allocation made on 18th January, 1994.

3. The respondent further pleaded in the plaint that subsequent to the purchase, she paid to the 2nd defendant all rates and premiums pertaining to the subject property and was assigned with the said property on 13th February, 2001.

4. It is pleaded in the plaint that in or about October 2001, the appellant whether by himself or through his servants and/or agents, illegally encroached on the subject property and began putting up a house and that it has been established that the 2nd defendant illegally allocated the subject property to the appellant.

5. Upon service of summons, the appellant and the 2nd defendant entered appearance and filed their statements of defence separately to deny the allegations made in the plaint. The appellant filed the statement of defence dated 21st December, 2001 while the 2nd defendant put in the statement of defence dated 20th October, 2001 and amended on 6th September, 2002.

6. At the formal hearing of the suit, the respondent and the appellant testified respectively, whereas the 2nd defendant called one (1) witness.

7. Upon close of submissions, the trial court in the judgment delivered on 22nd March, 2004 allowed the respondent’s claim and granted the permanent injunction sought in the plaint.

8. Being dissatisfied with the aforementioned judgment, the appellant has sought to challenge the same on appeal and has put forward the following grounds of appeal in his memorandum of appeal dated 28th April, 2004:i.That the learned trial magistrate erred in law and in fact by finding that the respondent had proven her case on a balance of probability.ii.That the learned trial magistrate erred in law and in fact by failing to find that it is the respondent who had actually encroached on the 1st defendant’s plot illegally.iii.That the learned trial magistrate erred in law and in fact by failing to find that the 2nd respondent’s plot was totally different from that of the appellant.iv.That the learned trial magistrate erred in law and in fact by finding that the respondent had proven ownership of the plot in question.v.That the learned trial magistrate erred in law and in fact by failing to consider the evidence adduced at the hearing and on record and thereby arrived at a wrong decision as to render the decision erroneous.vi.That the learned trial magistrate erred in law and in fact by failing to consider the evidence of the 2nd defendant’s witness even though they were the allocating authority.vii.That the learned trial magistrate erred in law and in fact by failing to find that the respondent had no cause of action against the appellant.viii.That the learned trial magistrate erred in law and in fact by failing to find that the documents relied upon by the respondent were not genuine despite overwhelming evidence to that effect.ix.That the learned trial magistrate erred in law and in fact by failing to find that the respondent was in clear violation of a court order and could therefore not benefit from the court’s discretion.x.That the learned trial magistrate erred in law and in fact by failing to find that the power of attorney used by the respondent to buy her plot was useless as the same was not registered as per the provisions of the law.

9. This court directed the parties to file written submissions on the appeal. At the time of writing this judgment, this court only had the submissions of the appellant. Those of the respondent had not been availed.

10. In his submissions dated 3rd September, 2019 the appellants argues that the subject property belongs to him going by the evidence tendered at the trial and hence the trial court should have found that the respondent was not the genuine owner thereof.

11. The appellant also argues that the trial court ought to have found that the documentation produced by the respondent to prove ownership of the subject property was not genuine and hence the only recourse available to the respondent would be to seek compensation solely from the 2nd defendant for allocating a non-existent plot to her.

12. For the foregoing reasons, the appellant urges this court to find that the respondent has no cause of action against him and to consequently allow the appeal and dismiss the suit against him with costs.

13. I have considered the appellant’s written submissions on appeal and the authorities relied upon. Moreover, I have re-evaluated the evidence which the trial court had the opportunity to look at.

14. It is clear that the appeal essentially lies against the decision by the learned trial magistrate allowing the respondent’s claim against the appellant to succeed. I will therefore address the 10 grounds of appeal raised contemporaneously hereinbelow.

15. The respondent testified at the trial that she had purchased the subject property from Nancy Wambui on 13th July, 1998 at a consideration of Kshs.400,000/= and that the two (2) signed a sale agreement and power of attorney to that effect, both documents of which she produced as exhibits.

16. The respondent testified that the subject property had previously been allocated to Nancy Wambui by the 2nd defendant vide a letter of allotment and that upon settling the outstanding rates and charges, the respondent was issued with an assignment by the 2nd defendant and further received a clearance letter.

17. It is the testimony of the respondent that subsequently, the appellant began digging trenches on the subject property and yet he has a separate plot within the same area, namely Blocks 3 and 4.

18. In cross-examination, the respondent stated that the purpose behind filing the suit was to restrain the appellant from undertaking construction on the subject property and that a meeting was held in a bid to resolve the issue of ownership to no avail.

19. In re-examination, the respondent stated that she executed the sale agreement before an advocate but that she was never advised that the same ought to be registered.

20. On his part, the appellant gave evidence that he owns the property known as Property No. Kayole/Commercial Zones Block 3 and 4 which he purchased from one Dorothy Wabuya Gitau at a consideration of Kshs.480,000/= upon allocation of the same to Dorothy.

21. The appellant stated that he began digging trenches on the abovementioned property when a representative of the respondent appeared and informed him that the plot belonged to the respondent.

22. The appellant gave evidence that at an official meeting held involving the parties and a representative of the 2nd defendant, it was stated that the allotment letter tendered by the respondent was not genuine.

23. It is the evidence of the appellant that the plots in dispute are not one and the same since it was established that they constituted two separate plots.

24. In cross-examination, the appellant stated that the injunction sought did not touch on his plot of land though it is only the 2nd defendant who could confirm whether the plots are one and the same.

25. The appellant further stated that whereas the plots are not one and the same in his view, the respondent had undertaken some construction on his plot.

26. Anne Namuma Lwangu who was DW2 stated that she worked for the 2nd defendant at all material times as the in-charge of plot files records and further stated that she had documentation to show that Dorothy had sold the property known as Property No. Kayole/Commercial Zones Block 3 and 4 to the appellant but that she did not have any record of the subject property.

27. In cross-examination, the witness gave evidence that she has no knowledge as to whether the documentation tendered by the respondent is a forgery, though she confirmed that the allotment letter tendered by the respondent was signed by Zipporah who is known to her, but that she did not confirm the signature with the actual maker.

28. The witness further gave evidence that she has no knowledge as to why the 2nd defendant quoted the subject property, which does not exist.

29. She went on to state that the documents tendered by the respondent are a forgery since they were not in her records but that she does not know who forged them.

30. In her judgment, the learned trial magistrate reasoned that both the appellant and the respondent had tendered allotment letters said to have been issued by the 2nd defendant but that no evidence was tendered to show that those tendered by the respondent amounted to a forgery.

31. The learned trial magistrate also reasoned that the appellant herein entered into a sale agreement with Dorothy long after the respondent had purchased the subject property from Nancy and that there is nothing to show that the respondent was claiming title to the property belonging to the appellant; rather, she was claiming title to the subject property.

32. In the end, the learned trial magistrate found that the respondent was therefore entitled to quiet and peaceful enjoyment of the subject property and therefore issued the injunctive order sought.

33. Upon my re-examination of the pleadings and evidence tendered, I am in agreement with the reasoning by the learned trial magistrate that irrespective of whether or not the plot belonging to the appellant was separate from that belonging to the respondent, it is apparent that the respondent had tendered credible evidence to show that she had rightfully purchased the subject property from Nancy Wambui before the appellant came into the picture, thereby proving her entitlement to the subject property.

34. I further note that there is credible evidence on record to show that particularly the allotment letter and assignment tendered by the respondent were issued by the 2nd defendant. This position has not been controverted by way of any credible evidence.

35. Upon my further re-examination of the pleadings and evidence, it is apparent that the appellant had at one point or another began undertaking construction on the subject property which as I have indicated above, is shown to have belonged to the respondent at all material times by way of credible evidence.

36. On the subject of forgery, upon my study of the record, I did not come across any credible evidence to support the allegation that the documentation tendered by the respondent constituted a forgery. The evidence tendered by DW2 who was a representative of the 2nd defendant did not confirm the allegations of forgery.

37. Consequently, I am satisfied that the learned trial magistrate correctly found that in the absence of any credible evidence to the contrary, the documentation tendered by the respondent is presumed to be genuine.

38. Overall and for all the foregoing reasons, I have no basis on which to find that the learned trial magistrate either misdirected herself on the pleadings and/or evidence, or arrived at a misguided finding on the matter.

39. I am satisfied that the learned trial magistrate considered the evidence placed before her and was justified in granting the injunctive order sought by the respondent and I have no reason to disturb her judgment.

40. Consequently, the appeal is hereby dismissed for lack of merit, with costs to the respondent

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF JUNE, 2022. .......................................J. K. SERGONJUDGEIn the presence of:.................. for the Appellant.................. for the Respondent