[2024] KEELC 4284 (KLR)

Theuri & 18 others v Theuri & another (Environment & Land Case E46 of 2022) [2024] KEELC 4284 (KLR) (23 May 2024) (Judgment)

Neutral citation: [2024] KEELC 4284 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case E46 of 2022

A Ombwayo, J

May 23, 2024

Between

George Theuri

1st Plaintiff

Hannah Wangui Kamau

2nd Plaintiff

George Njoroge Njiru

3rd Plaintiff

Jane Wambui Muguchia

4th Plaintiff

Christopher Karumba

5th Plaintiff

Paul Waweru Ngungu

6th Plaintiff

Grace Wanjira Kabaiku

7th Plaintiff

Judith Mokeira Oreko

8th Plaintiff

Joshua Ogamba Ouko

9th Plaintiff

Mercy Nyaboke Oreko

10th Plaintiff

Muriithi Kiboko Kimago

11th Plaintiff

Eunice Njeri Macharia

12th Plaintiff

Beatrice Magoma Omigo

13th Plaintiff

Mary Ekeno

14th Plaintiff

Sheila Midachi

15th Plaintiff

Mary Njoki Kimani

16th Plaintiff

Hannah Akai Ngito

17th Plaintiff

Leah Khavayi Indeche

18th Plaintiff

John Kihoria Ngugi

19th Plaintiff

and

Nester Wanja Theuri

1st Defendant

Rukenya Commercial Agencies

2nd Defendant

Judgment

1. The Plaintiffs commenced this suit vide a Plaint dated 5th August, 2022 against the Defendants seeking the following orders:

2. A declaration do issue that the Plaintiffs Purchased the respective plots numbered 1-20 as hived from Shawa/Gicheha Block12/18 (Kamwago Farm) in the year 2006/2007 and are therefore legal owners of the same.

3. In the alternative and without prejudice, a declaration do issue that the Plaintiffs have occupied their respective portions as Block12/18 (Kamwago Farm) continuously uninterrupted since 2006/2007 to date hived from Shawa/Gicheha and have acquired the same by way of adverse possession.

4. An order compelling the 1st Defendant to execute the transfer forms and obtain the relevant Land Control Board consents in favor of the Plaintiffs failure to which the same to be executed by the Deputy Registrar of this court.

5. A permanent injunction do issue restraining the Defendants jointly and severally, whether by themselves or through their servants or agents from entering upon, interfering with, transferring or dealing in any manner with the Plaintiffs' respective portions as hived from Shawa/Gicheha Block12/18 (Kamwago Farm).

6. The Defendants be condemned to jointly and severally meet the costs of this suit.

7. The 1st Defendant entered appearance and filed her amended defence and counterclaim dated 23rd June, 2023 where she averred that the Plaintiffs purchased their respective plots from the 2nd Defendant. She averred that the 2nd Defendant was not the registered owner of the suit property. She further averred that the Plaintiffs are not bonafide purchasers and in illegal occupation of the properties to the 1st Defendant’s detriment.She prayed for judgment against the Plaintiffs (now Defendants) for:

8. An order for eviction do issue against the Plaintiffs from the suit property known as Title Number: Shawa/Gicheha Block 12/18 (Kamwango Farmers, Njoro, Nakuru).

9. That this Honourable court be pleased to grant a demolition order for the permanent structures that the Plaintiffs have erected on the suit property at their own costs.

10. The OCPD Njoro Police Station be directed to provide security during the eviction and demolition exercise.

11. Costs of and incidental to the suit.

Plaintiffs’ Case 12. George Theuri testified as PW1 where he testified that he is the 1st Plaintiff and has brought this case on behalf of his colleagues with their authority. He produced his undated statement filed on 17th August, 2022 which was adopted as evidence in chief. He also produced his list of documents dated 5th August, 2022 as follows:Advert by Rukenya Commercial Agencies for sale of the plots- PEX 1Proposed subdivision of the 20 plots- PEX 2. Sale agreement between Rukenya and himself dated 8/9/2006- PEX 3. Sale agreement dated 7/9/2006. PEX 4Receipt dated 8/11/2006 for Kshs. 80,000 -PEX 5Electricity quotation-PEX 6

13. Sale agreement between Antony Kamui and Lukenya Commercial agencies dated 19/6/2006-PEX 7Sale agreement dated 19/6/2006 for Kshs130,000-PEX 8. Sale agreement dated 19/6/2006 for Kshs. 80,000- PEX 9. Receipt dated 30/9/2006 for Kshs. 45,000- PEX 10Sale agreement dated 7/1/2006 -PEX 11. Receipt dated 7/1/2007 for Kshs. 36,000- PEX 12. Sale agreement dated 13/2/2007-PEX13. Receipt dated 16/6/2007 for Kshs. 7,000-PEX14. Receipt dated 19/2/2007 for Kshs.15,000-PEX15. Receipt dated 7/4/2007 for Kshs.10,000 for Ruffus Kinyua-PEX16Receipt dated 13/2/2007 for Kshs. 31,000 for Ruffus Kinyua-PEX17Receipt dated 18/10/2007 for Kshs. 7,000 for Ruffus Kinyua-PEX18. Sale agreement for Mary Wanjiru Karumba dated 15/1/2007-PEX 19Receipts to Christopher Karuba dated 25/1/2007 PEX 20 and 21.

14. Sale agreement between Peter Kairu Mwangi and Mary Njoki Kimani-PEX 22.

15. Sale agreement dated 22/6/2006 between Antony W Kairu and Mary-PEX 23.

16. Sale agreement dated 25/7/2006 between Antony W Kairu and Paul Waweru Ndungu- PEX 24. Receipt dated 10/4/2007 for Kshs. 2,000 for Weweru Ndungu-PEX 25. Receipt dated 25/7/2006 for Kshs. 4,000– PEX 26Receipt dated 16/5/2007 for Kshs. 500 -PEX 27. Receipt dated 29/3/2007 for Kshs. 2,000-PEX 28Sale agreement dated 14/3/2014 for Kshs. 180,000-PEX 29Receipt dated 7/4/2006 for 26,000-PEX 30An undated receipt for Kshs. 5000-PEX 31Receipt dated 24/2/2007 for Kshs. 2,000-PEX 32. Receipt dated 2/7/2007 for Kshs. 20,000-PEX 33. Sale agreement dated 4/3/2014-PEX 34Sale agreement dated 12/2/2007-PEX 35. Sale agreement dated 25/11/2006- PEX 36.

17. Sale agreement from Joseph Mwangi Njoroge to Eunice Njau dated 7/5/2021-PEX 37. Receipt- PEX 38. Sale agreement dated 8/5/2014-PEX 39Sale agreement-PEX 40. Demand letter dated 13/6/2023-PEX 41

18. He testified that the 5th Plaintiff was issued a receipt but he did not know the relation. It was his testimony that they have been in occupation of the land from 2006 and that nobody has claimed the land. He testified that he met the 1st Defendant in 2022. He further testified that he was not sure whether the 2nd Defendants were agents of the 1st Defendant. He stated that the owner of the land was Antony Karimi and added that the 1st Defendant has never been interested with their possession. He testified that the land is the 1st Defendant’s home and that when they bought the land it was in the 2nd Defendant’s name. He testified that the land belonged to the 1st Defendant’s husband.

19. Upon cross examination by Ms. Onsare for the 1st Defendant, PW1 was referred to PEX3 where he confirmed that the agreement was signed by Antony Karimi and the 1st Plaintiff. He further stated that the consideration was received by Antony Karimi. He admitted that they did not do a search hence they did not know the owner of the land. He stated that he has constructed but admitted that he did not have any evidence to prove the same. He stated that the agreement PEX 7 was between Antony Karimi and Hannah and that the owner of the land did not sign. The witness was shown PEX 22 sale agreement dated 28/10/2015. He stated that the land belonged to the deceased husband of the 1st Defendant. He added that Antony Karimi was an agent for Peter.

20. PW1 stated that he came to know the owner of the land later. He further stated that Antony was the owner of the 2nd Defendant but admitted that he did not have evidence to prove the same. He stated that he came to know the 1st Defendant in the year 2022 at a chiefs meeting. He stated that they were told that he bought the land in an illegal manner and were told to pay afresh. He stated that he signed the agreement dated 10/6/2022 and paid Kshs400,000/=. He admitted that he did not go through the documents. He stated that he bought the land from Antony Karimi who received the money. He admitted that he should follow up with Antony Karimi.

21. Upon reexamination, PW1 stated that he signed the agreement thinking that the titles were coming soon. He stated that the agreement was signed before the filing of the suit.That marked the close of the Plaintiffs’ case.

1st Defendant’s case 22. Nester Wanja Theuri testified as DW1 where her witness statement dated 11/9/20233 and filed on 18/9/2023 was adopted as evidence in chief. She also produced her documents 1st DEX 1- DEX 5. It was her testimony that she acquired the land after her husband died and that the property was transferred to her after succession. She testified that she did not know the 2nd Defendant and that her late husband had no agreement with them. She further testified that when she visited the land she found ongoing activities. She also testified that she could not find Antony that’s when she contacted the area chief. It was her testimony that they met with chief Muthoni, Plaintiff and other people. She testified that she had not authorized anybody to sell the land. She also testified that they agreed that they sign her agreement and that they were to pay her but they never did. She testified that her husband died on 25/5/2007.

23. Upon cross examination by Mr. Tombe for the Plaintiff, DW1 stated that the land was registered in the name of Charles Theuri. She stated that she concluded succession in 2009 and added that she did not know how the Plaintiffs took occupation. She also stated that she did not know or engage Karimi. She confirmed that she does not cultivate the land and admitted that she has not been frequently visiting the land. She also confirmed that the houses were constructed by people she did not know. She further stated that she received Kshs500,000 from Antony Karimi before going to the chief and that the money was deposited through the lawyer. She stated that Antony wanted to purchase the plots from her hence he paid Kshs500,000 as purchase price.

24. On reexamination, DW1 stated that she had entered into agreement with Antony on 14/3/2017 as he wanted to purchase the land. She further stated that he was to pay the whole purchase price and Kshs. 500,000 was the deposit. She stated that she went to the chief on 24/5/2022. DW1 was shown DEX 4 where she stated that she did not know who erected the development. She also stated that she never visited the property as she feared for her life.That marked the close of 1st Defendant case.The 2nd Defendant did not participate in the case.

SubmissionsNone of the parties have filed their submissions.

Analysis and Determination 25. I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined:a.Whether there was a valid sale agreement between the Plaintiffs and the 2nd Defendant.b.Whether the Plaintiffs are bonafide purchasers for value.c.Whether the Plaintiffs are entitled to the orders soughtd.Whether the 1st Defendant is entitled to the orders sought in her Counterclaim.

26. It is not in dispute that the 1st Defendant is the registered proprietor of the suit land Shawa/Gicheha Block12/18 (Kamwago Farm) evidenced by the copy of title issued on 14th February, 2019. The Plaintiffs contend that they purchased plots numbered 1-20 as hived from the above suit property between 2006 and 2007. They produced copies of the sale agreements as well as receipts as proof of payment. This court has keenly perused the sale agreements and it is not in dispute that the vendor was the 2nd Defendant. It is also clear that the receipts of payment were issued by the 2nd Defendant. PW1 testified that they paid the purchase price of the plots to Anthony Karimi and added that they were not sure whether the 2nd Defendant was an agent of the 1st Defendant. He also testified that he did not have evidence to confirm that Anthony Karimi was the owner of the 2nd Defendant. He confirmed that they had not conducted a search before purchase of the said plots only to later realize that the 1st Defendant was the owner of the suit property.

27. The 1st Defendant on the other hand testified that she acquired the suit land upon the death of her husband which was transferred to her after succession in 2009. She testified that her husband died on 25/5/2007 and added that she never knew the 2nd Defendant. She also testified that her late husband had no agreement with the 2nd Defendant. She confirmed that her late husband prior to his demise had demarcated the suit property into sub-plots and engaged Anthony Karimi to market the same for him. She also confirmed that before his husband’s death, they had completed the sale of plot numbers 2,3 and 20. It is the 1st Defendant’s case that Anthony Karimi disposed off the remaining plots without her approval and in a bid to amicably settle the same, she agreed to enter into agreement with Antony on 14/3/2017 for him to purchase the rest of the plots for Kshs. 5,100,000 where he paid Kshs. 500,000 as deposit but failed to clear the balance.Section 3 (3) of the Law of Contract Act provides as follows:“(3)No suit shall be brought upon a contract for disposition of an interest in land unless the agreement upon which, the suit is founded, or some memorandum or note thereof, is in writing and is signed by the party to be charged or by some person authorized by him to sign it;…”

28. In the instant case, it is not disputed that the Plaintiffs executed sale agreements for purchase of the said plots as well as made payments in consideration. Going by the 1st Defendant’s unchallenged testimony that the deceased died on 25/5/2007, it meant that the deceased was alive when the agreements were being executed. It is the Plaintiffs case that one, Anthony Karimi was the deceased’s agent thereby authorized to sell the said plots on his behalf. The 1st Defendant on the other hand argued that neither his deceased’s husband nor herself had authorized sale of the plots. It is this court’s view that the burden to prove that the 2nd Defendant was the deceased’s agent rested on the Plaintiffs.

29. Given that the 1st Defendant argued that the deceased never authorized any sale of plots aside from plots 2,3 and 20 as excised from the suit property, it was imperative for the Plaintiffs to prove otherwise. I am not satisfied that the Plaintiffs proved that the 2nd Defendant was the deceased’s agent authorized to sell the plots on his behalf. Section 107, 108 and 109 of the Evidence Act makes provision as to who bears the burden of proof and provide as follows: -107. Burden of proof(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burdenThe burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109 . Proof of particular factThe burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

30. Further, the Court of Appeal in Jennifer Nyambura Kamau v Humphrey Mbaka Nandi NYR CA Civil Appeal No. 342 of 2010 [2013] eKLR held as follows:“We have considered the rival submissions on this point and state that section 107 and 109 of the Evidence Act places the evidential burden upon the appellant to prove that the signature on these forms belong to the Respondent. Section 107 of the Evidence Act provides that “whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the Evidence Act provides, the burden lies on that person who would fail if no evidence at all were given on either side.”

31. From the above provisions it is clear that the Plaintiffs had the burden to prove that the 2nd Defendant was the authorized agent of the vendor, in this case the 1st Defendant’s deceased’s husband. The Plaintiffs failed to discharge that burden and it was not enough for them to claim that they executed agreements and paid consideration for the plots. There was no proof that the 2nd Defendant was acting as an agent for deceased. The Sale Agreements produced by the Plaintiffs were not express to the extent that the 2nd Defendant was to represent the deceased in the sale of the plots. It is this court’s view that the lack of an authorized agent for the vendor vitiated the contract and the same is rendered null and void.

32. Going to the 2nd issue for determination, the Court of Appeal in Samuel Kamere v Lands Registrar [2015] eKLR stated as follows:“…in order to be considered a bona fide purchaser for value, they must prove; that they acquired a valid and legal title, secondly, they carried out the necessary due diligence to determine the lawful owner from whom they acquired a legitimate title and thirdly that they paid valuable consideration for the purchase of the suit property...”

33. PW1 admitted that they never conducted any due diligence before purchasing the said plots. He testified that they only came to know the owner of the suit property later after they had already paid the consideration. It is this court’s view that the Plaintiffs failed to fulfil the requirements of a bona fide purchaser. This court therefore finds that the Plaintiffs are not bona fide purchasers for value.

34. It is noteworthy that the 1st Defendant admitted that her deceased’s husband sold plots number 2,3 and 20 which evidence the Plaintiffs never challenged. This court therefore finds that the remaining plots in dispute are plots number 1 and 4-19.

35. The upshot of the above is that the Plaintiffs have failed to prove their case on a balance of probabilities and are therefore not entitled to the orders sought. The 1st Defendant’s counter claim therefore succeeds.

36. Consequently, I find that the 1st Defendant has proved her case as per the Counterclaim and will proceed to enter judgement her favour in the following terms:

37. a.The plaintiff to vacate the suit property within 90 days from today failure of which an eviction order be and is hereby issued directed to the Plaintiffs, their servants, agents and/ or any other persons whatsoever in occupation of the property known as Shawa/Gicheha Block 12/18 (Kamwango Farmers, Njoro, Nakuru).b.The OCPD Njoro Police Station do oversee the enforcement of the said eviction order by a licensed auctioneer issued with court execution warrants.c.The Plaintiffs shall bear the costs of the suit.It is so ordered.

JUDGMENT DATED SIGNED AND DELIVERED ON 23RD DAY OF MAY 2024. A.O. OMBWAYOJUDGE