[2019] KEHC 7585 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MERU

ELC CASE NO. 202 OF 1995

NTARAGWI M’IKARA.........................................................................PLAINTIFF

VERSUS

JACKSON MUNYUA MUTUERA....................................................DEFENDANT

JUDGMENT

Background/History

1. This suit was filed as Meru C.M.C.C No.164 of 1995 on 16. 2.1995. Vide a miscellaneous application No.34 of 1995 in Meru High court, the lower court file was transferred to Meru High court on 8. 11. 1995 and was registered as H.C.C.C NO. 202 of 1995. The litigation odyssey herein however dates decades earlier on in the early 70s. There is a file which is snuggly intact inside the present matter and the same is Meru R.M.C.C NO.21 of 1973, Jackson Munyua as plaintiff and Ntarangwi Ikiara as the defendant. In that suit, Jackson Munyua was claiming that vide an agreement of 5. 12. 1967, he had bought 0. 2 acres out of land parcel NO.NTIMA /IGOKI/2224 (Suit land) from Ntarangwi. Munyua had sought for an order of specific performance while Ntarangwi had counter claimed for the eviction of Munyua from the suit land. That case was settled via a consent Judgment recorded in court on 18. 1.1974 where by Ntarangwi was to transfer to Munyua the 0. 2 acres out of the suit land. The decreewas issued on 22. 8.1996, but was never implemented.

2. The present dispute revolves around the same parcel of land. In the plaint dated 8. 2.1995, Ntarangwi is seeking eviction of Munyua from the suit land NTIMA/IGOKI/2224, plus mesne profits from date of occupation to date.

Res-Judicata

3. An application was filed on 23. 10. 2014 by defendant raising the issue of Res judicata and in a ruling delivered on 7. 7.2015, the court stated as follows;

“A suit in which a consent was entered by the parties 41 years ago is sue generis. I am not comfortable that this application is being filed 41 years later…….I am also apprehensive that the compulsory acquisition of the suit land may have altered the subject matter although the parties may remain the same. I am unable at this stage to definitely pronounce myself on the issue of res-judicata”.

4. A summary of the dispute is that sometime in 1967 or thereabout, plaintiff had an agreement of some sought with defendant which culminated in the occupation of part of the suit land by defendant. The suit land was however not registered by then. The dispute spilled over into court in Meru SRMCC NO21 of 1973, where a consent Judgment was entered into in 1974. However, the suit land was thereafter compulsorily acquired by the government. This is the point at which the dispute becomes rather convoluted. Plaintiff claims that he is still the registered owner of the land as the government never acquired the suit land as it was built up. Defendant avers that the land was allotted back to the people who had buildings on the land. Defendant also states that he is the one in occupation of the suit land.

Plaintiffs Case

5. PW1, NTARAGWI M’IKARA, who is the plaintiff herein testified and he adopted his statement dated 24th February 2016 as his evidence. He stated that he owns the land parcel no. NTIMA/IGOKI/2224 and the parcel had no subdivisions whatsoever. He claims that the defendant entered the land through a verbal agreement which was never reduced into writing. The agreement was that defendant was to construct a building with two doors whereby defendant was to remain with one door while he was to give the plaintiff the other door. PW1 told the court that he got the land from his grandfather before 1967. He then got the title on 15th March 1970.

6. During Cross examination PW1 stated that the government did not take all of his land as shown by Plaintiffs Exhibit 4 and that the compensation he received was only for a certain portion. The position taken by the government during that time was that for those who had built, the land was returned by the government. Moreover, Pw 1 stated that he had never seen the agreement marked DMF1 and he had no land known as No. 2224 in 1997. As for the case SRM No. 21 of 1973 he was aware of the case and that it was dismissed.

7. PW2 CHARITY NTARANGWI testified and stated that she got married to the plaintiff in 1967. Her evidence is more or less similar to that of PW1. She added that the agreement of 1967 was a false on. She also stated that she was present when the agreement was made, whereby plaintiff had asked the defendant to build a structure with two doors, whereby defendant was to give one door to the plaintiff. However, when the defendant built, he refused to give one door to the plaintiff. She affirmed that the land had been theirs from 1970 when they got title No.625. Thereafter, subdivision was done giving rise to parcels Nos. 2224 and 2223. No.2223 was later given to William M’Tuarimi and they (PW1 &PW2) remained with 2224. Therefore it was not possible to have parcel No. 2224 in 1967.

8. PW2 added that the suit land was compulsory acquired by the government but not the portions that had permanent buildings. After compulsory acquisition, meetings took place at the DC’s which were conducted by Osodo. This meeting was to return back the land which was not compulsorily acquired.

9. PW2 presented several documents and letters to confirm that the land in dispute was never compulsorily acquired by the government i.e. minutes of the meeting of the Board of Lands dated 6th February 1980, letter from the commissioner of lands dated 25th May 1993, Letter for the commissioner of lands to M.M Kioga dated 15th October 1997 and a letter from the Municipal Council officer dated 16th July 2008.

10. PW3, WILLIAM M’ARIMI testified and adopted his statement filed on 24th February 2016 where he stated that he wanted to buy the land which came to be the suit land but he ended up with the plot measuring 40*80 Ft which came to be No.2223, of which he paid M’Ikiara in form of cows. PW3 avers that he was present when the defendant agreed to take the part that he (PW 3) was unable to build but there was no money exchanged. Present during the verbal agreement were the following elders; Perminus Mugambi, M’Mbui M’Rinturi , Jason Maitima, Kababa (nickname), M’Ikiara M’Rinchumi, Ntaragwi M’Ikiara, the Defendant and PW3. The defendant was to build two front rooms which he was then to share with plaintiff.

11. PW4 GEOFFREY KIREMA MARETE also adopted his statement filed on 24th February 2016 as his evidence, where he indicated that he is the son of Marete M’Murong’a who had a plot along Gakoromone Road which was adjacent to plaintiffs plot. Their land was parcel No. NTIMA/ IGOKI/1836which together with the plaintiff’s plot were not acquired by the government as there were permanent buildings. PW4subsequently acquired his father’s plot so he remained as the plaintiff’s neighbor.

12. During cross examination PW4 was unable to show how his plot neighbors that of the plaintiff using the mutation form PExh. 3.

13. PW5 PETER BUNDI M’MURAA adopted his statement filed on 24. 2.2016 as his evidence. He avers that his father has a plot at Gakoromone road which he had obtained from Ntaragwi M’Ikiara. His father was to build a structure with two doors of which he gave one door to plaintiff whereas the other door remained with PW 5’s father. PW5 is aware that Munyuas plot is adjacent to PW 5’s plot where he has two doors.

14. In support of plaintiffs case ,the following documents were produced as exhibits;

1) P- exhibit I; copy of a cancelled land certificate for land parcel no. NTIMA/IGOKI/675 issued on 15. 3.1970 in the name of Ntarangwi Ikiara.

2) P- exhibit II: Copy of green card for parcel Ntima/Igoki 675

3) P – Exhibit III: Mutation form of 28. 3.1972 showing positioning of parcel 2223 and 2224.

4) P – Eshibit IV: A copy for land title no. Ntima/Igoki/2224 issued on 26. 11. 1971 in the name of Ntarangwi Ikiara.

5) P – Exhibit V: A map

6) P – Exhibit VI: Document for rate payments for parcel Ntima/Igoki/2224 dated 1. 7.1995.

7) P- Exhibit VII: A bundle of rate payment documents issued to plaintiff for plot Ntima/Igoki/2224.

8) P – Exhibit VIII: Letter of 25. 5.1995 written by Osondo (for Disrict Land Officer Meru) to the commissioner of lands.

9) P- Exhibit IX: Letter of 4. 8.1995 written by a Mr. Kahuho to the land registrar.

10) P- Exhibit X: Letter of 15. 10. 1997 written by Mr. Kariuki, for the Commissioner of lands to M. M. Kioga advocates

11) P – Exhibit XI: Letter of 15. 8.1995 written by a litigation counsel to the town clerk of Meru.

Defence Case

15. DW1 JACKSON MUNYUA testified and adopted his statement dated 15th September 2015 as his evidence. He avers that on 5th December 1967, he entered into an agreement with the plaintiff for the purchase of 0. 20 Acres out of the suit land for Ksh.2000 which he paid on the same day in the presence of Plaintiffs father, Shadrak M’Kiriinya and Jeremiah M’Kanata (deceased). At the time of the sale, the plaintiff had not gotten a title deed for the land as it was still under adjudication. He however took immediate possession of the plot and constructed timber houses on the portion. In 1972 the plaintiff got the title number LR. NO. NTIMA/IGOKI/2224 which number they inserted in the sale agreement. In the same year, DW1 demolished the timber structure and built a stone/permanent building on the whole portion, the one he had bought.

16. Just when they embarked on the process of subdivision, the government announced that they were to acquire those plots so as to expand the Meru stage. The plaintiff then became very reluctant to transfer the land prompting DW1 to lodge a caution against the whole portion of the suit land.

17. DW1 later sued the Plaintiff in Meru SRMCC No. 21 of 1973 and the case was settled by consent where the plaintiff agreed to transfer the 0. 2 Acres to him. DW1and the Plaintiff started the process of subdivision where DW1 paid for subdivision fees and consent for sub division was granted. However, plaintiff’s property was gazetted for compulsory acquisition and was finally acquired by the government on 17th May 1977 and since the plaintiff was still registered as the owner, he was compensated including DW1’s portion.

18. The government however announced that the developed plots would be re allocated back and DW1 was allocated NTIMA/IGOKI/2224A, while the plaintiffs developed part was given NTIMA/IGOKI/2224 B. DW1 is still in occupation and use of NTIMA/IGOKI/2224 A and has a complete building on one side.

19. DW2 SHADRACK M’KIRIINYA adopted his statement dated 15. 9.2015 as his evidence. He is defendant’s brother. He avers that he accompanied defendant to go and pay the sum of Kshs.2000 to the plaintiff for the purchase of 0. 20 Acres. The transaction was reduced into writing in Kimeru and Jeremiah M’Nkanata(deceased) and the plaintiffs father Mr. Ikiara were present. Thereafter the defendant took possession, put up timber houses and later a permanent building. DW2 is also aware of Meru SRMCC No. 21 of 1973 where the plaintiff conceded to the Defendants claim.

20. DW3 DANIEL KIRAI testified and also adopted his statement dated 15. 3.2016 as his evidence where he stated that he knows both the defendant and the plaintiff. In the year 1972 the defendant informed him that the plaintiff was selling a portion of land near Meru town. Together with his fellow teachers Isaya Mutua and Julius Muriungi they agreed to buy a portion thereof measuring 30 x 60 Ft. at a consideration of Kshs. 3,000. A sale agreement was drawn and they all signed after paying the consideration price. The plaintiff showed them their portions but before transfer could be effected, the whole area was compulsorily acquired by the Government. They were never compensated nor refunded their money by the plaintiff. The defendant had already developed his portion and therefore he was re allocated the same land.

21. In support of his case the defendant produced many documents which are found in 4 distinct lists. The first list containing 12 items was filed on 18/9/2015. The 2nd list containing 2 documents was filed on 18/3/2016. The 3rd list containing 4 documents was filed on 26/4/2016, while the 4th list containing 14 items was filed on 26/7/2013. All these documents are found in the green paginated bundle running from page 1- page 60 of defendant’s documents.

Analysis and Determination

22. I have carefully analyzed the pleadings, the evidence and the submissions and I proceed to frame the issues for determination as follows;

A. Whether the plaintiff and defendant entered into an agreement for sale of a portion of 0. 2 acres of the suit land sometime in 1967.

B. Whether this suit is Res judicata to SRMCC NO.21 OF 1973.

C. Whether the suit land NITMA/IGOKI.2224 was compulsorily acquired by the government.

D. Who is entitled to the suit land?

Whether the plaintiff and defendant entered into an agreement for sale of a portion of 0. 2 acres of the suit land sometime in 1967.

23. Plaintiff avers that there was no agreement in writing made between him and the defendant and the land parcel no. NTIMA/IGOKI.2224 did not exist as by 1967. He however admits that there was an oral agreement between him and defendant whereby the defendant was to build two rooms to be shared between them. That the plaintiff proceeded to construct the building on the suit premises but he reneged on the agreement and he declined to give the plaintiff one of the rooms. Defendant on the other hand has produced an agreement of 5/12/1967indicating that defendant had bought 0. 2 acres of land from the plaintiff.

24. I find that defendant has produced the agreement of 5/12/1967 as defence exhibit 18 (item 1 in the list of 18/09/2015). The agreement indicates that the plaintiff had sold land to defendant. I find that the defendant has given a plausible explanation as to why the parcel number 2224 was not reflected in the agreement. The process of adjudication was ongoing and the first registration occurred in 1970 when the land was registered as parcel No. Ntima/Igoki/675on 8. 1.1970. In his own evidence PW 1 has admitted that thereafter he proceeded to sub divide parcel No. Ntima/Igoki/675 to yield parcel No. Ntima/Igoki/2223 and 2224. The land parcel No. 2224 was then registered in plaintiff’s name on 19/11/1971.

25. The defendant has stated that he had realized that plaintiff was not keen on transferring to him the portion of 0. 2 acres of land. That is why he lodged a caution which was registered on 4/7/1972 in respect of parcel No. Ntima/Igoki/2224. The caution has been availed as defendant’s exhibit 19 (to be found on page 6 of defence bundle).

26. Defendant got wind that the suit land was to be compulsorily acquired by the government yet the plaintiff had not effected the transfer of 0. 2 acres of land and this prompted him to file the case Meru SRMCC No. 21 of 1973 against the present plaintiff for specific performance.

27. I find that a Consent Judgment was entered into in Meru SRMCC 21 of 1973,whereby the present plaintiff was to transfer 0. 2 acres of land parcel No. Ntima/Igoki/2224 to the present defendant. There was no appeal or review in respect of that judgment. The foregoing is a clear confirmation that there was an agreement between the plaintiff and the defendant regarding sale of a portion of land no. Ntima/Igoki/2224. That is why even the plaintiff and his wife (PW 2) admit that defendant has been in occupation of the suit land since the 1970’s to date.

Whether this suit is Res judicata to SRMCC NO.21 OF 1973.

28. I have already stated that the Meru SRMCC No. 21 of 1973 file is intact in this present file. The plaintiff and his wife have feebly tried to say that this case does not exist. During cross examination the plaintiff had stated as follows: “Am not aware of case No. 21 of 1973”. However, during re-examination he stated as follows; “for the case SRMCC No. 21 of 1973, I was aware of the case. It was mentioned in the High Court. It was dismissed. I never knew about that case. He was being sued by my father and another brother who died”.

29. As for PW 2, the wife of the plaintiff, she initially admitted during her evidence in chief that she was aware of the lower court case. She stated as follows; “for the document No. 1 in defence list filed in 18/9/2015 (agreement of 5. 12. 1967), I saw it in the lower court case. It is Munyua who brought the agreement”– (See page 101 of the handwritten proceedings). On page 144 of the handwritten proceedings, PW 2 stated as follows “in case no. 21 of 1973 in SRM Meru, there was never such a case. It was done to support the agreement of 1967. It is the father of Ntarangwi who had a case with Munyua because of uprooting coffee and yams. Munyua was ordered to pay Shs.800”. Then on page 168 of the handwritten proceedings PW 2 stated as follows; “I am aware of the 1973 case. It is case no. 21 of 1973 SRM Meru. It was between Ntarangwi and Munyua. Ntarangwi is defendant and Munyua now defendant was the plaintiff”. On page 181 of the handwritten proceedings, PW 2 states as follows; “In case NO. 21 of 1973, Ntarangwi was at Marsabit selling miraa there. We were served”.

30. From the foregoing analysis it is clear that the plaintiff and his wife PW2 were aware of the suit SRMCC 21 of 1973. That suit had conclusively determined the dispute which was between the plaintiff and the defendant regarding the sale of a portion of the suit land.

31. Section 7 of the Civil Procedure Act provides that;

“No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court”.

32. It follows that the dispute regarding whether defendant had bought 0. 2 acres of land from the plaintiff had been conclusively determined by a court of law. The issue of the agreement regarding how defendant came to settle on the suit land is therefore Res-judicata.

33. The Judgment in Meru SRMCC NO.21 of 1973 was not implemented primarily because of two reasons. One, it appears that the current plaintiff was not willing to effect the transfer. Secondly as fate would have it the land was compulsorily acquired by the government around 1977. As rightly held by Judge Njoroge in his ruling of 7/7/2015, the compulsory acquisition of the suit land did alter the subject matter. Consequently, the court has to determine the rights and interests of the parties as appertains to the suit land and therefore it cannot be said that the present suit is wholly res-judicata to Meru SRMCC No. 21 of 1973.

Whether the suit land NTIMA/IGOKI/2224 was compulsorily acquired by the government.

34. Both parties do agree that the land Ntima/Igoki/2224 was compulsorily acquired by the government. However, plaintiff avers that for the portion of the land which was built up, the same was returned to its owners by the government. He therefore, claims that he is still the owner of the land as he never even surrendered the title. PW 2 avers that they got the land back in 1981. Plaintiff admits that he was compensated for the land which was compulsorily acquired by the government.

35. The documentary evidence presented before this court indicates that the suit land Ntima/Igoki/2224 was wholly compulsorily acquired by the government. The first tell-tale document is the Kenya Gazette of 13/5/1977 availed as defence exhibit 4 (page 18 of defendants bundle of documents). The particulars of the suit land are captured on 2nd page of the gazette notice where it is indicated that parcel No. 2224 in the name of Ntarangwi Ikiara consisting of 0. 57 hectares was compulsorily acquired by the government. This acreage of 0. 57 hectares is the same one reflected in plaintiff’s exhibit 4 which is the land certificate for Ntima/Igoki/2224 issued on 26/11/1971. The claim by the plaintiff that only a portion of the suit land had been compulsorily acquired does not hold.

36. The defendant has also availed a green card for parcel No. Ntima/Igoki/2224 (page 22 of defence bundle), where entry no. 5indicates that this land was compulsorily acquired by the Government of Kenya to the tune of 0. 57 ha. vide gazette notice no. 1263 dated 13th May 1977.

37. The defence has further availed two certificates of official search for land parcel No.Ntima/Igoki/2224 whereby one of the search is dated 13th May 2014 (on page 23 of defence bundle), while the other is dated 26th April 2016 (page 58 of defence bundle). Both documents indicate that the land was registered in the name of Ntarangwi Ikiara on 1/10/1971 but there was compulsory acquisition of the same by the government of Kenya on 13th May 1977. The plaintiff has not availed any evidence to indicate that the land ever reverted back to him. Further, plaintiff has not availed even one search certificate for the suit parcel to show that the land ever reverted back to him..

38. My conclusion on this issue is that the entire suit parcel Ntima/Igoki/2224 measuring 0. 57 ha. was compulsorily acquired by the government in 1977 and that the plaintiff was fully compensated for the same. The plaintiff cannot therefore claim to have a superior right over the suit property vis a vis the rights of the defendant.

Who is entitled to the suit land?

39. The evidence adduced by both parties is that the government was re-allocating the land back. In particular if one had permanent buildings they were getting the same land. But the land which was not built, the same could be balloted. The evidence adduced by the defendant is that for the suit land, the same was divided into two, that is Ntima/Igoki/2224A and 2224B whereby the plaintiff was to get B and the defendant was to get A.

40. I have seen the document availed as Defence Exhibit 20 which indicates that after the 1973 case, there was an attempt to have the 0. 2 acres of land excised from Ntima/Igoki/2224. It appears that the government did pursue the issue of ensuring that each of the litigant got their respective portion. However, these efforts were thwarted by the plaintiff who filed another case Meru HCCC 153 of 1995 to stop the process. PW 2 confirms that they indeed filed this case as the municipal council had opened a ledger card for the present defendant.

41. I find that this is a situation where the plaintiff wants to have a second bite of the cherry. This is because he sold the land to the defendant which land was compulsorily acquired by the government whereby he was fully compensated for the acquisition of 0. 57 hectares of land and he still wants the same land to revert back to him. I am in agreement with the defendants submissions that plaintiff does not have a better right or superior claim on the suit land than the one of defendant. I also find that plaintiff’s proprietary rights on the suit land were extinguished upon the compulsory acquisition of the suit land by the government. If the plaintiff is holding a title to the suit land Ntima/Igoki/2224 then that is a mere paper as he is not the registered proprietor of that land.

42. It appears that the current status of the land is one where the plaintiff has control of a portion of the suit land being referred to as B. On the other hand defendant has always been in occupation of another portion of the land since 1970’s, where he constructed a building and this portion is known as A. The county government is charging rates upon land parcel No. 2224B in the name of Ntarangwi Ikiara (see document in page 56 of defence bundle) while charging rates in respect of plot no. 2224A in the name of Jackson Munyua Mutwera (see document on page 55 of defendants bundle).

43. In conclusion, I find that neither the plaintiff, nor the defendant is the registered proprietor of the suit land. However, each one of them has beneficial interests in a defined portion of the suit land on account of possession and occupation thereof. The county government has recognized this beneficial interests by identifying plaintiff’s plot as Ntima/Igoki/2224B whereas that of defendant is Ntima/Igoki/2224A. I therefore find that plaintiff is only the beneficial owner of a portion of the suit land known as NTIMA/IGOKI.2224B, while defendant is the beneficial owner of the portion of the suit land known as NTIMA/IGOKI/2224A. In the circumstances, I find that plaintiff’s case is unmerited and the same is dismissed. The plaintiff is hereby condemned to pay the costs of the suit with interest on costs at court’s rates.

DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 22ND DAY OF MAY, 2019 IN THE PRESENCE OF:-

C/A: Kananu

Igweta for plaintiff

Miss Nyaga for defendant

Plaintiff

Defendant

HON. LUCY. N. MBUGUA

ELC JUDGE