[2024] KEELC 6049 (KLR)

Ondieki v Mogaka & another (Environment and Land Appeal E013 of 2023) [2024] KEELC 6049 (KLR) (20 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6049 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment and Land Appeal E013 of 2023

MAO Odeny, J

September 20, 2024

Between

Mary Nyakerario Ondieki

Appellant

and

Peter Nyamari Mogaka

1st Respondent

Thomas Nyanaro

2nd Respondent

(Being an Appeal from the judgment delivered by Hon. E.G Nderitu Chief Magistrate on 11th April, 2013 in Molo CMC ELC No. 30 of 2018)

Judgment

1. This Appeal arises from a Judgment delivered on 11th April, 2013 in Molo CMC ELC No. 30 of 2018. The Appellant being aggrieved by the said judgment lodged a Memorandum of Appeal dated 9th May, 2023 and listed the following grounds:1. That the learned trial Magistrate erred in law and in fact by finding that there was sale of a portion of 1 acre from Land parcel Number Nakuru/Molo/Kapsita/801 to the 1st Respondent. The said decision was against the weight of evidence and it amounted to legalizing fraud through a judicial process.2. That the learned Magistrate erred in law and in fact by not making a finding that the Appellant herein at no point in time executed any sale agreements or instructed any agent including the 2nd Respondent to act on her behalf in the alleged sale of a portion of 1 acre from Land Parcel Number Nakuru/Molo/Kapsita/801 to the 1st Respondent land that was solely purchased by the Appellant.3. That the learned Magistrate erred in law and in fact by presuming that since the Appellant and the 2nd Respondent were husband and wife it bequeathed the 2nd Respondent ownership of Land Parcel Number Nakuru/Molo/Kapsita/801 thus the 2nd Respondent could sell the same to the 1st Respondent herein without authority or consent of the Appellant.4. That the learned Magistrate erred in law and in fact by not making a finding that the Appellant who solely purchased Land Parcel Number Nakuru/Molo/Kapsita/801 was not the Vendor in the agreement of sale of the portion of 1 acre of the said land and also the Appellant never received the purchase price from the 1st Respondent herein.5. That the learned Magistrate erred in law and in fact by making a finding that the 1st Respondent is the beneficial owner of the portion of 1 acre from Land Parcel Number Nakuru/Molo/Kapsita/801. 6.That the learned Magistrate erred in law and in fact by making a finding that the portion of 1 acre from Land Parcel Number Nakuru/Molo/Kapsita/801 should be excised out of the suit land and be registered in the name of the 1st Respondent.7. That the trial Magistrate erred in law and in fact by not appreciating that during the execution of the alleged sale the Appellant was not aware and absent, neither did the Appellant ratify the sale making the said sale null and void.8. That the learned Magistrate erred in law and in fact by making a finding that the said Parcel Number Nakuru/Molo/Kapsita/801 was jointly owned without any evidence of contribution or written agreement between the Appellant and the 2nd Respondent.9. That the learned Magistrate erred in law and in fact by not making a finding that a jointly owned property can only validly be disposed off by the joint owners.

2. The 1st Respondent also filed a Cross-appeal dated 6th November, 2023 on the following grounds:1. That the Learned trial Magistrate erred both in law and in fact by failing to analyze or properly analyze the evidence on record thereby denying the appellant the orders sought in the appellant's counterclaim.2. That the learned trial Magistrate erred in law and in fact by failing to put any weight to the documents adduced by the appellant including Mpesa transaction statements, showing that indeed the respondents received money, thus failing to order for a refund of the paid sum.3. That the learned trial Magistrate erred in law and in fact by failing to pronounce herself on the aspect of refund of the paid purchase price despite the 2nd respondent’s admission that the entire purchase price had been paid.4. That the Learned trial Magistrate erred both in law and in fact by failing to hold that the respondent's action of receiving the full purchase price and putting the appellant in possession of the suit parcel created a constructive trust and proprietary estoppel in favour of appellant.5. That the Learned trial Magistrate erred both in law and in fact by failing to give a concise state of fact on who was the legitimate owner of the suit parcel of land before the same was sold to the appellant.6. That the Learned trial Magistrate erred both in law and in fact by proceeding to find that the appellant was only entitled to one (1) acre of the suit parcel of land contrary to the overwhelming evidence on record.

3. A brief background to this appeal is that the Appellant filed a suit against the 1st Respondent in the lower court seeking the following orders:a.A declaration that plot No. Nakuru/Molo/Ka psita/801 was duly purchased by the plaintiff.b.A declaration that the parcel of plot measuring two acres out of the original Nakuru/Molo (Kapsita)/324 of measuring five acres belongs to the plaintiff and that the defendant is a trespasser on the land and the plaintiff is entitled to quiet enjoyment and possession of the service.c.A declaration that the parcel of plot measuring two acres out of the original Nakuru/Molo (Kapsita)/801 of measuring five acres belongs to the plaintiff and that the defendant is a trespasser on: - the land and the plaintiff is entitled to quiet enjoyment and possession of the service.d.A temporary injunction do issue restraining the Defendant whether by himself, his servants, agents or any other person other than the plaintiff from ploughing, trespassing into the parcel of two (2) acres out of the original five (5) acres Nakuru/Molo (Kapsita)/324 of the said parcel pending the hearing and determination of this suit.e.A temporary injunction do issue restraining the Defendant whether by himself, his servants, agents or any other person other than the plaintiff from ploughing, trespassing into the parcel of two (2) acres out of the original five (5) acres Nakuru/Molo (Kapsita)/801 of the said parcel pending the hearing and determination of this suit.f.A permanent injunction do issue restraining the Defendant whether by himself, his servants, agents and any other person other than the plaintiff from ploughing, planting, cultivating, developing, entering, trespassing into the two (2) acres parcel of the original five (5) acres parcel known as Nakuru/Molo/Kapsita/324 measuring five acres or interfering in any way with the said parcel pending the full hearing and determination of this suit.g.A permanent injunction do issue restraining the Defendant whether by himself, his servants, agents and any other person Other than the plaintiff from ploughing, planting, cultivating, developing, entering, trespassing into the two (2) acres parcel of the original five (5) acres parcel known as Nakuru/Molo/Kapsita/801 measuring five acres or interfering in any way with the said Parcel pending the full hearing and determination of this suit.h.An order cancelling the title deed issued to the defendant in respect of the two acres of parcel of land out of the original Nakuru/Molo (Kapsita)/324 and an order for registration of the plaintiff as proprietor/owner.i.An order cancelling the title deed issued to the defendant in respect of the two acres of parcel of land out of the original Nakuru/Molo (Kapsita)/801 and an order for registration of the plaintiff as proprietor/owner.j.Costs of this suit.k.Any other relief this Honourable Court may deem fit to grant.

4. The 1st Respondent in his defence filed a further amended defence and counterclaim dated 2nd September, 2019 and sought for the following orders in the counterclaim:a.The Plaintiff’s case as pleaded in the plaint be dismissed with costs to the counterclaimant.b.An order that the Plaintiff is the bonafide legal and/or beneficial owner of the suit property by virtue of having purchased the same from the 1st Defendant and as such, the 1st Defendant be compelled to grant vacant possession to the Plaintiff.c.In the alternative to prayer (a) above, the Defendant be compelled to refund the Plaintiff the total amount paid with interest together with general and aggravated damages.d.Costs of the suit.

5. The suit was heard and the trial magistrate in her judgment dated 22nd February, 2023 dismissed the Appellant’s suit against the Respondent which led to the Appellant filling the present appeal.

Appellant’s Submissions 6. Counsel for the Appellant gave a background of the case and submitted that the suit property known as Nakuru/Molo-Kapsita/801 was not available for sale by the 2nd Respondent in the main appeal as it could not be legally possible for the 1-acre portion to have been sold to the 1st Respondent.

7. Counsel further submitted that the Appellant was the beneficial owner of the said parcel of land and she did not give consent for the same to be sold to the 1st respondent It was counsel’s submission that the trial court relied on the agreement found at page 70 of the main record of appeal between the 1st and 2nd Respondent which was prepared in the Appellant’s absence. Counsel stated that the document could not be conclusive agreement to dispose off the said 1 acre since the beneficial owner was not privy to the said transaction by the 1st and 2nd Respondents.

8. Mr. Ayora submitted that there was no money ever paid as consideration for the 1 acre to the Appellant by the 1st Respondent and further it is on record from PW2’s evidence that the Appellant bought the suit land from Francis Wanjohi in 2000 for Kshs. 130,000/. Counsel also submitted that there was no consent allowing the 2nd Respondent to act on behalf of the Appellant in the purported sale agreement.

9. Counsel relied on Section 107 of the Evidence Act and submitted that the claim was for sale of the suit property to a third party and legitimacy of the sale by a person who did not have proprietary rights. He submitted that even if the court made a finding that the suit property was matrimonial property, the 2nd Respondent in the main appeal could not have had the unilateral authority to transfer its ownership to a third party.

10. Counsel further submitted that the 2nd Respondent in the main appeal was obligated to place before the trial court evidence of how he paid the for the suit land, the purported Kshs. 90,000/ as contribution.

11. Counsel relied on the Court of Appeal case of Pius Kimaiyo Langat V Cooperative Bank of Kenya Ltd [2017] eKLR and submitted that it is trite law that a stranger to an agreement cannot enforce the same against the parties thereto. Further that such parties to an agreement cannot sue a stranger to enforce a breach of an agreement she was not part of.

12. Counsel further submitted that the alleged lease agreement was converted to a sale agreement that was referred to by the 1st Respondent in the main appeal was between the 1st and 2nd Respondents and not the Appellant. He submitted that the trial Magistrate erred by not finding that the Appellant never signed any sale agreement.

13. On the third ground of appeal, counsel submitted that the reasoning of the trial court’s judgment at page 159 lines 21-23 as well as page 160 lines 1-10 was against the evidence produced by the Appellant having not signed any lease or sale agreement between the 1st and 2nd Respondent. Counsel submitted that the trial court erred in fact and law by finding that the 1st Respondent was the beneficial owner of the portion of 1 acre without any evidence having been produced.

14. It was counsel’s further submission that the learned trial Magistrate erred in law and fact by making a finding that the suit land was jointly owned without any evidence of contribution. He also stated that the trial Magistrate erred in law and fact by not making a finding that a jointly owned property could only be disposed off by the joint owners.

15. Counsel relied on the Court of Appeal case in Agricultural Finance Corporation V Lengetia Limited & Jack Mwangi [1985] eKLR and Section 91 of the Land Registration Act and submitted that co-owned land could not be dealt with without the consent of the other.

16. On the cross-appeal, counsel relied on Section 3(3) of the Contract Act and submitted that the trial court analyzed the evidence and denied the 1st Respondent in the main appeal orders sought in the 1st Respondent’s counter claim. He further submitted that that the learned Magistrate gave a concise state of fact in the main appeal by finding that the Appellant was the beneficial owner of the suit land save for the 1 acre.

17. He submitted that there was no creation of a constructive trust or proprietary estoppel between the Appellant and the 1st Respondent in the main appeal. Further that the possession of the disputed land by the 1st Respondent in the main appeal was illegal from the onset.

18. Counsel relied on the case of Thorner V Major & Others [2009] UKL 18[2009] 1 WLR 776 and submitted that the burden was upon the 1st Respondent in the main appeal to establish the elements of proprietary estoppel. On the issue of constructive trust, he submitted that the same was never pleaded and that the transactions between the 1st and 2nd Respondents in the main appeal do not fall under it.

19. Counsel for the Appellant submitted that prayer (c) of the cross petition was misconceived since the evidence in the trial court spoke for itself and that the Appellant in the main appeal never received any monies in relation to the alleged purchase from the 1st Respondent thus the trial court did not err in its judgment. He cited the case in Wambua Mwangangi V Samuel Kamunye Gichigi [2013] eKLR and Philmark Systems Co. Ltd V Andermore Enterprises [2018] eKLR.

20. Counsel urged the court to dismiss the cross appeal and allow the appeal with costs.

Respondent’s Submissions 21. Counsel for the Respondent submitted that the trial Magistrate was well within the law in finding that the Appellant failed to prove that the Respondent was the absolute owner of the suit land and relied on the case of National Land Commission V Afrison Export Import Ltd & 10 others [2019] eKLR.

22. Counsel further submitted that the trial court acted within the ambits of the law and of the pleadings in finding that the Appellant had failed to prove that the Respondent had capacity to engage in the sale and transfer the suit land.

23. Mr. Alusa cited the Court of Appeal case of Ann Wairimu Wanjohi V James Wambiru Mukabi [2021] eKLR and submitted that points of law need not be pleaded by parties for the court to address them.

24. Counsel submitted that despite the Appellant’s suit being totally defective, the trial Magistrate addressed all the issues as raised in the pleadings and cited the case of David Sironga Ole Tukai V Francis Arap Muge & 2 Others [2014] eKLR.

25. It was counsel’s submission that the Appellant could not rely on the doctrines of constructive trust and proprietary estoppels whereas she is not in actual possession of the suit property and has also been refunded. He cited the case of Macharia Mwangi Maina & 87 Others V Davidson Mwangi Kagiri [2014] eKLR and William Kipsoi Sigei V Kipkoech Arusei & Another [2019] eKLR and submitted that the doctrine of constructive trust was not applicable as it was not pleaded.

26. Counsel for the 1st Respondent submitted that the Respondent gave evidence that he remained in possession and occupation of the suit land until when the Appellant claimed ownership.

27. Counsel relied on the case of Danson Kimani Gacina & Another V Embakasi Ranching Company Ltd [2014] eKLR and submitted that it is trite law that proof of ownership of land is found in documentary evidence to establish the root of the title. Further that the possession of land by a purchaser is an overriding interest in favour of the purchaser and that the court found that the vendor created an implied or constructive trust in favour of the person purchasing the property.

28. Mr. Alusa relied on the Court of Appeal case of Aliaza V Saul (Civil Appeal 134 of 2017) [2022] KECA (KLR) and William Kipsoi Sigei V Kipkoech Arusei & Another [2019] eKLR and submitted that the present case created a constructive trust in favour of the Respondent. It was counsel’s further submission that the Respondent fulfilled his end of the bargain by making payment for the land and took possession.

29. In conclusion, counsel urged the court to find the appeal devoid of merit and have the same dismissed and allow the cross appeal with costs to the 1st Respondent.

Analysis and Determination 30. The issue for determination is whether the learned Magistrate erred in law and fact in finding that the Appellant sold the suit land to the Respondent even though she did not enter into an agreement with the respondent. Whether the Appeal and the cross Appeal have merit and who should pay the costs.

31. In the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the circumstances.

32. Similarly, the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 Sir Kenneth O’Connor stated as follows:“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”

33. From the evidence on record, it was the Appellant’s case that she purchased the suit property Nakuru/molokapsita/324 measuring 2 acres from one Francis Wanjohi for a consideration of Kshs. 130,000. That the suit land was subdivided with resultant plots No. 800 and 801.

34. The Appellant gave evidence in the trial court, produced documents in respect of the sale, and told that court that one Francis Wanjohi gave her all the documents to enable her transfer the land in her name. The title to the suit land was still in Francis Wanjohi’s name.

35. It should be noted that the vendor’s brother testified in the case and stated that he represented his brother Francis Wanjohi and gave evidence of the sale to the Appellant together with the witnesses who were aware of the sale of the suit land to the Appellant. The Vendor had been paid the full purchase price and therefore had no claim against the Appellant. That is why he surrendered his rights in the suit land to the Appellant.

36. The evidence on record is that the 2nd Respondent is the estranged husband of the Appellant who entered into a sale agreement with the 1st respondent and claimed that the Appellant knew and consented to the same. The Trial court concluded that the since the 2nd respondent and the Appellant were husband and wife, then the 2nd Respondent had a beneficial interest in the suit land. This was from the evidence that the 2nd Respondent and the Appellant had entered into a lease agreement with the 1st respondent dated 28th January 2007 at a consideration of Kshs 4000/ per acre. It is noted that the Appellant signed this lease agreement.

37. The agreement dated 8th March 2007 also indicates that it was between the 2nd respondent and his wife the Appellant and the 1st Respondent. The Chief who was a witness to the agreement confirmed the same.

38. The disagreement arose after the Appellant and the 2nd Respondent became estranged leading to the filing of the suit in 2018 claiming that she had not been consulted on the sale of the land. The Appellant did not dispute the fact that they had entered into a lease agreement with the 1st Respondent together with her estranged husband.

39. I have considered the evidence in the record of Appeal, the submissions by counsel and find that the Learned Trial Magistrate did not err in her judgment which flowed from the evidence on record.

40. The upshot is the appeal and the cross Appeal are dismissed with each party bearing their own costs.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 20TH DAY OF SEPTEMBER 2024. M. A. ODENYJUDGE