[2023] KEELC 439 (KLR)

Nyaga & 44 others v Ndungu t/a Urutagwo Mwiruti Women Group (Environment & Land Case 129 of 2019) [2023] KEELC 439 (KLR) (1 February 2023) (Judgment)

Neutral citation: [2023] KEELC 439 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 129 of 2019

A Nyukuri, J

February 1, 2023

IN THE MATTER OF AN APPLICATION FOR AN ORDER OF SPECIFIC PERFORMANCE OF A CONTRACT OF SALE OF LAND REFERENCE NO. 7340/49 BETWEEN

Between

Peter Mwanzo Nyaga

1st Plaintiff

Patrick Muriuki Wangai

2nd Plaintiff

Gilbert Oinga Oinga

3rd Plaintiff

Johns Nyakamba Ondieki

4th Plaintiff

Joshua Omari Ochoki

5th Plaintiff

Veronica Mbinya Mwania

6th Plaintiff

Teresa Onchoka Momanyi

7th Plaintiff

Monica Auma Yugi

8th Plaintiff

Samuel Njoroge Boro

9th Plaintiff

Esther Mumbi Muiruri

10th Plaintiff

Agnes Wanjiru Itati

11th Plaintiff

Christopher Katumo Ndambuki

12th Plaintiff

Peter Muruthi Ndiritu

13th Plaintiff

Naomi Taveta Muguti

14th Plaintiff

Harman Joseph Njenga

15th Plaintiff

Peter Odhiambo Juma

16th Plaintiff

Lucy Chepkurui

17th Plaintiff

Patrick Kariuki Kamau

18th Plaintiff

George Ligami Shamallah

19th Plaintiff

Margaret Rose Shamallah

20th Plaintiff

David Ntogaiti Ithiri

21st Plaintiff

Andrew Muyela Katima

22nd Plaintiff

Boniface Nzioki Maingi

23rd Plaintiff

Thomas Kibagendi Masira

24th Plaintiff

Jackson Masaka

25th Plaintiff

Meryline Judith Akinya

26th Plaintiff

Gideon Patrick Ochieng

27th Plaintiff

Yobesh Ochako

28th Plaintiff

Francis Mwaura Waiya

29th Plaintiff

Justus Nyamwaro Ogembo

30th Plaintiff

Paul Wilson Muthee

31st Plaintiff

Phyntern Okumu Appidah

32nd Plaintiff

Kenneth Maxween Ongong’a

33rd Plaintiff

Salome Nkirote Mutiga

34th Plaintiff

John Odhiambo Okumu

35th Plaintiff

Gladys Kwambuka Motoke

36th Plaintiff

James Wangombe

37th Plaintiff

Praxedes Achwoka

38th Plaintiff

Alice Wangui

39th Plaintiff

Caroline Wacu Ngendo

40th Plaintiff

Robert Muthama

41st Plaintiff

Judith Auma Odhiambo

42nd Plaintiff

Bernard Yugi

43rd Plaintiff

Risper Kwamboka Nyakamba

44th Plaintiff

Nancy Njisa Njambi

45th Plaintiff

and

Anne Wairimu Ndungu t/a Urutagwo Mwiruti Women Group

Defendant

Judgment

Introduction 1. By an Originating Summons dated 22nd November 2019, the 44 Plaintiffs in this matter sought as against the Defendant, for the determination of the following questions;a.Whether in the year 2001 the Defendant subdivided her land known as L.R. No. 7340/49 situated at Mavoko in Machakos County into Seventy Four (74) plots measuring 60 feet by 30 feet.b.Whether in the year 2001 the Defendant offered the said plots for sale and the Plaintiffs purchased the same on various dates between 2002 and 2005. c.Whether the Defendant was paid the sale price in full for the plots by the Plaintiffs.d.Whether the Defendant issued the Plaintiffs with certificates of ownership.e.Whether the Defendant gave possession of the plots to the Plaintiffs.f.Whether it was a term of the contract of sale that the Defendant will facilitate issuance of title deeds to the Plaintiffs.g.Whether the Defendant has failed, refused and or neglected to obtain the necessary clearances and consents and execute transfers in favour of the Plaintiffs in order for them to obtain titles.h.Whether the Plaintiffs have demanded that the Defendant completes the conveyance of the plots.i.Whether the Defendant should be ordered to complete the sale by obtaining the necessary clearances and consents and executing the transfers within a specified period.j.Whether the Deputy Registrar of this Honourable Court should be mandated/ordered to execute the transfer instruments in the event the Defendant declines to do so.k.Whether the Chief Lands Registrar should be ordered to issue title deeds to the Plaintiffs.

2. Consequently, the Plaintiffs sought the following orders;a.That the Defendant ANNE WAIRIMU NDUNGU be ordered to complete the contract of sale of Land Parcel No. 7340/49 by obtaining all the necessary clearances and executing the transfers to the Plaintiffs within 30 days of this order.b.That in default, the Deputy Registrar of this Honourable Court do execute any documents and instruments as may be necessary to effect the transfers and the Chief Land Registrar to issue title deeds to the Plaintiffs forthwith.c.That the Defendant to pay the costs of this Originating Summons.

3. The Originating Summons were anchored on the supporting affidavit sworn on 20th November 2019, by Peter Mwanzo Nyaga, the 1st Plaintiff. He averred that he had the authority of the other 43 Plaintiffs to prosecute this claim and attached the authority signed by the 43 other Plaintiffs. He stated that the Defendant was the registered owner of all that land known as L.R. No. 7340/49 measuring 1. 818 Hectares situated in Utawala, Mavoko in Machakos County (Suit property).

4. He further stated that in 2001, the Defendant caused the suit property to be subdivided into 74 plots each measuring 60 feet by 30 feet and offered those plots for sale to the Plaintiffs in the years between 2002 – 2005, whereof the Plaintiffs purchased all the 74 plots, with the 1st Plaintiff purchasing plot Numbers 18, 21, 25, 29 and 64. He deposed that they agreed that upon sale of all the plots, the Defendant was to process individual title deeds for the Plaintiffs. That upon purchase, the Defendant granted the Plaintiffs possession of the suit properties and issued them with ownership certificates which has led the Plaintiffs to develop both residential and commercial developments on the suit property.

5. It was his assertion that over the years, the Defendant has promised to process the titles and has kept receiving more money from the Plaintiffs on the promise that she will process their titles including Kshs. 105,000/- paid on 13th June 2013 by the 1st Plaintiff and Kshs. 50,000/- paid on 30th September 2015 by another Plaintiff. He stated further that the Defendant had now become hostile and uncooperative and prayed that the Defendant be compelled to issue them with title deeds and in default, the Deputy Registrar of this court be directed to execute transfers and the Chief Land Registrar to issue them with title deeds.

6. On 28th July 2020, the Defendant filed a replying affidavit in response to the Originating Summons. She stated that the Originating Summons was misconceived and bad in law and that it was misleading for the Plaintiffs to allege that the Defendant was the registered owner of the suit property. She denied engaging the surveyors to subdivide the suit property and stated that the 1st Plaintiff did not witness the alleged sale agreements to the other Plaintiffs. She denied signing the ownership certificates and stated that the same were either forged or stolen from the company’s offices or fraudulently obtained in collusion with the Defendant’s employees. Her position was that this suit was not a good case for trial by way of Originating Summons and a plaint due to the contentious issues involved. She also stated that there was no evidence of sale agreements or payment of purchase price to validate the sale.

7. In a rejoinder, the 1st Plaintiff filed a further affidavit sworn on 11th September 2020. He stated that the replying affidavit was composed of mere denials and generalities and that there was no substantive response to the issues raised in the Originating Summons. He maintained that it was proper and lawful to initiate this suit by way of an Originating Summons under Order 47 Rule 3 of the Civil Procedure Rules.

8. He averred that the Defendant was dishonest and mischievous by denying ownership of the suit property when the search dated 6th November 2019 clearly showed that the property was registered in her name. He also stated that Geomatics Services who are the surveyors who surveyed the suit property indicated clearly in their proposed subdivision that their client was Urutagwo Mwiruti Women Group, which is the Defendant’s business name. He stated further that it is the Defendant who personally issued her with the certificate of ownership and a receipt for moneys paid on 13th June 2013 and 12th November 2013. He stated also that on behalf of the community, he has engaged the Defendant severally over the years and she is well known to him.

9. He also averred that the denial of the certificates was dishonest on the part of the defence. That by denying ownership of the suit property, denying instructing the surveyors to subdivide the suit property, denying selling the property and issued ownership certificates, shows that the Defendant is dishonest.

10. In 2021, parties attempted an out of court settlement, albeit unsuccessfully. Therefore, the matter proceeded by way of viva voce evidence.

The Plaintiffs’ Evidence 11. PW1, Peter Mwanzo Nyaga, testified that he was a public servant working with the Police Department and was the then County Police Commander of Nakuru. He stated that he had been authorised to prosecute this suit by fourty three other Plaintiffs. He adopted the contents of his supporting affidavit dated 20th November 2019 and his further affidavit dated 11th September 2020, as his evidence in chief. He reiterated that the fourty three other Plaintiffs together with him purchased the suit property which had been subdivided into plots of 60 feet by 30 feet from the Defendant between 2002 and 2005. That they paid the entire purchase price.

12. He further testified that the Defendant promised that upon completion of payment of all the plots, she would transfer the same to them respectively. It was his evidence that all the plots were sold to the 44 Plaintiffs and that everyone occupies their plot. Further, that they organised meetings to have the Defendant attend with a view to have her issue them with title deeds but she was evasive. That later, she asked the Plaintiffs to pay a further 65,000/- which they paid but she still failed to transfer the property to them.

13. PW1 asked the court to compel the Defendant to issue them with title deeds within a specified time. According to him Urutagwo Mwiruti is the group headed by Anne Wairimu Ndungu, who is the chairlady and the Defendant herein. That she was the sole signatory of the ownership certificates that were issued to the Plaintiffs upon purchase of the suit property and that she was the person appearing on the search certificate as the registered proprietor of the suit property. He maintained that the Defendant was the person who advertised the property, received payment, issued plot ownership certificates and is the registered proprietor of the suit property. He sought for the Plaintiffs to have titles to the suit property.

14. He produced the authority to represent the other 43 Plaintiffs as P-Exhibit 1, search certificate dated 6th November 2019 as P-Exhibit 2, a survey map as P-Exhibit 3, 44 plots ownership certificates as P-Exhibit 5, Demand letter as P-Exhibit 6, a certificate of ownership of 5 plots as P-Exhibit 7, and further receipts as P-Exhibit 8 and 9. That marked the close of the Plaintiffs’ case.

15. Although on the hearing date of 12th October 2022 counsel for the Defendant Mr. Nyantika, had been in court in the morning when the matter was given time allocation and scheduled for hearing at 11. 20 a.m, neither the counsel nor the Defendant attended court for the hearing of the matter. As no evidence was adduced on the part of the Defendant, the Defendant’s case was marked as closed and parties directed to file submissions. Consequently, the Plaintiffs filed their submissions on 27th October 2022. No submissions were filed by the Defendant.

Submissions 16. Counsel for the Plaintiffs submitted that the Plaintiffs’ testimony was uncontroverted as no evidence was offered by the Defendant to rebut the same. Counsel submitted that the Plaintiffs had a legitimate expectation to get titles to their plots which they purchased from the Defendant, as the Defendant has not given any reason why she failed and neglected to process the titles for the last 15 to 20 years.

17. Counsel argued that the search certificate confirmed that the Defendant was the owner of the suit property. He observed that while the Defendant in her response to the summons deposed that the Plaintiffs could have forged the documents; that it is unbelievable that the Plaintiffs had taken possession of the suit property without her consent and that she has never taken any action to remove the Plaintiffs from the suit property all these years.

Analysis and Determination 18. I have considered the Originating Summons, the supporting and further affidavits, the attached documents, the replying affidavit and the submissions. The issues that arise for determination are;a.Whether the Defendant is the registered proprietor of the suit property.b.Whether the Plaintiffs purchased the suit property respectively from the Defendant.c.Whether the Defendant should be compelled to transfer the suit property to the Plaintiffs respectively.

19. On whether the Defendant is the registered proprietor of the suit property, the Plaintiffs produced a copy of a grant showing that Grant I.R. No. 70433 L.R. No. 7340/49 measuring 1. 818 Hectares was registered in the name of Anne Wairimu Ndungu on 27th March 2009. Although the Defendant denied being the registered proprietor of the suit property, she did not produce a search that was contrary to the Plaintiffs’ evidence. I therefore find and hold that the Defendant is the registered proprietor of the suit property.

20. On whether the Plaintiffs purchased the suit property from the Defendant, the Plaintiffs testimony was that upon purchase of the respective plots, they were issued with plot ownership certificates. The Plaintiffs produced 44 plot ownership certificates showing that some Plaintiffs had one plot while others had more than one plot. I have considered the proposed subdivision of the suit property which is a survey plan prepared by Geomatics Services, the same indicates that the client was Urutagwo Mwiruti Women Group. From the plot ownership certificates, it is clear that the Defendant described herself as the Chairlady of the said women group and she was the sole signatory of the plot ownership certificates. It is also clear from the deposit slip dated 13th June 2013, that the said Urutagwo Mwiruti Women Group was the holder of Bank Account Number 01100xxxx4800 at Equity Bank Limited. It is therefore clear that the Defendant traded as Urutagwo Mwiruti Women Group, and issued plot ownership certificates to the Plaintiffs showing that the Plaintiffs were the lawful owners of their respective plots.

21. I have considered the replying affidavit and I note that the Defendant did not deny selling the suit property to the Plaintiffs, her main query was that the sale did not comply with the Contract Act. On the authenticity of the plot ownership certificates, the Defendant denied authoring them and stated that they were either forged or stolen from her offices or obtained by the Plaintiffs in collusion with her employees. That is merely misleading as the Defendant cannot be heard to be saying that the documents were forged and therefore did not arise from her office and at the same time say that they came from her office by collusion of her employees. The Defendant’s defence therefore is merely a general denial. In any event, no evidence was tendered by the Defendant, therefore, her defence remained mere allegations. It is therefore my finding that indeed the Defendant sold the suit property to the Plaintiffs.

22. The Plaintiffs stated in evidence that they have developed the suit property since 2005. That testimony was not denied by the Defendant. The Defendant has never filed suit to evict the Plaintiffs considering that she argues that the plot ownership certificates were stolen from her office. By not seeking to evict the Plaintiffs, it is clear that the Defendant has acknowledged that the Plaintiffs are on the suit property lawfully and as of right.

23. Section 28 of the Land Registration Act No. 3 of 2012, provides that trusts are overriding interests even where the same are not registered. The Defendant being the registered proprietor of the suit property which she sold to the Plaintiffs, who are in occupation thereof is deemed to hold the title thereof in trust for the Plaintiffs. There exists a constructive trust between the Plaintiffs and the Defendant as the suit property, although registered in the Defendant’s name, belongs to the Plaintiffs who purchased the same as the Defendant no longer has any interest in the property.

24. The Black’s Law Dictionary, 11 Edition, defines a constructive trust as follows;“An equitable remedy by which a court recognizes that a claimant has a better right to a certain property than the person who has legal title to it. This remedy is commonly used when the person holding the property acquired it by fraud, or when property obtained by fraud or theft (as with embezzled money) is exchanged for other property to which the wrong doer gains title. The court declares a constructive trust in favour of the victim of the wrong, who is given a right to the property rather than a claim for damages. The obligation of the constructive trustee is simply to turn the property over to the constructive beneficiary.”

25. In the case of Twalib Hatayan Twalib Hatayayan & Another vs. Said Saggar Ahmed Al Heidy & Others [2015] eKLR, on constructive trust, the court stated as follows;According to the Black’s Law Dictionary, 9th Edition; a trust is defined as;1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).Under the Trustee Act ... “the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…”In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing….It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee; the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position of his own benefit (see Halsbury’s Laws of England (Supra) at paragraph 143). As earlier stated with constructive trusts, proof of parties intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment.”

26. Therefore, a constructive trust is an equitable remedy imposed by the court on a party who has legal title to the property albeit wrongly as the property ought to be owned by another. It is based on the notion of equity and aimed at preventing injustice and unjust enrichment.

27. Article 10 (2) (a) of the Constitution 2010, elevates equity to a Constitutional national value which is a principle of governance binding all state organs, state officers, public officers and all persons including this court, whenever any of them applies or interprets the Constitution and any law.

28. Considering all the evidence in this case to the effect that the Plaintiffs purchased the suit property from the Defendant; were issued with plot ownership certificates; the property was duly subdivided by the Defendant; the Plaintiffs have occupied the suit property since 2005 to date and their occupation has not been challenged before any authority or court; it is my finding that it is only equitable and just that the Defendant is compelled to transfer the suit property to the Plaintiffs respectively and ensure that each of them has a valid title thereto.

29. In the premises, I am satisfied that the Plaintiffs have proved their case on a balance of probabilities as against the Defendant as prayed in the Originating Summons. I therefore enter judgment for the Plaintiffs as against the Defendant as follows;a.The Defendant, Anne Wairimu Ndungu, be and is hereby ordered to complete the contract of sale of Land Parcel Number L.R. No. 7340/49 by obtaining all the necessary clearances and executing the transfers to the Plaintiffs within 30 days of this judgment.b.That in default of (a) above, the Deputy Registrar of this Honourable Court do execute all necessary documents and instruments necessary to effect the transfers and the Chief Land Registrar to issue title deeds to the Plaintiffs forthwith.c.The Defendant shall pay the costs of this suit.

30. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 1st DAY OF FEBRUARY 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the presence of;Mr. Muthama for the PlaintiffsNo appearance for the DefendantJosephine – Court Assistant