[2023] KEELC 21430 (KLR)

Trustees, Mahiga Children’s Home v Wachira (Environment and Land Appeal 20 of 2019) [2023] KEELC 21430 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21430 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyeri

Environment and Land Appeal 20 of 2019

JO Olola, J

November 10, 2023

Between

The Trustees, Mahiga Children’s Home

Appellant

and

Jedidah Wangechi Wachira

Respondent

Judgment

1. This is an Appeal arising from the Judgment of the Honourable M. N. Munyendo, Senior Resident Magistrate as delivered on 17th May, 2019 in Othaya SRMCC No. 13 of 2018.

2. By the Plaint dated and filed in the Lower Court on 23rd February 2018, Jedidah Wangechi Wachira (the Respondent herein) and two others had sued the Trustees AIC Mahiga Children’s Home (the Appellant herein) and two others for orders as follows:(a)An order for eviction against the Defendants jointly and severally from L.R Mahiga/Kamoko/1310;(b)An order of permanent injunction restraining the Defendants jointly and severally, its agents, servants or otherwise from entering and/or remaining (in) or conducting any act whatsoever on the Plaintiffs’ land L.R Mahiga/Kamoko/1310;(c)An order for general damages for trespass against the Defendants jointly and severally; and(d)Costs of the suit plus interest.

3. Those prayers arose from the Respondent’s contention that they were the registered joint owners of L.R No. Mahiga/Kamoko/1310 and that the Appellants were squatters on a neighbouring public parcel of land known as L.R No. Mahiga/Kamoko/1309 wherein they run a children’s home known as AIC Mahiga Children’s Home.

4. It was the Respondent’s case that on or about 8th February 2018, the Appellants without any colour of right had trespassed into their portion of land and begun wanton acts of destruction by bringing down a barbed wire and chain link fence together with the posts attached thereto. The Respondents asserted that the said entry into their land by the Appellants was illegal, unlawful and in utter violation of their proprietary rights and hence the orders sought in their Plaint.

5. But in its Statement of Defence and Counterclaim dated and filed in Court on 16th March 2018, the Appellant denied that the Respondents were the owners of the parcel of land known as Mahiga/Kamoko/1310. On the contrary, the Appellant asserted that it was the rightful owner of the said parcel of land.

6. The Appellant further denied that it was a squatter on the parcel of land known as Mahiga/Kamoko/1309 and asserted that it was the rightful owner of the same and that it had been in occupation thereof since 1985 and had established a children’s Home thereon.

7. By way of its Counterclaim, the Appellant asserted that it had purchased L.R No. Mahiga/Kamoko/1310 from one Kiiru Gichohi in 1985 and had been in occupation thereof ever since. The Appellant further asserted that sometime in 2017 while it was still waiting for registration and issuance of a title deed for the suit property, it came to learn that the Respondents had illegally, maliciously and fraudulently colluded to have the property registered in their names as joint proprietors.

8. Accordingly, the Appellant sought for Judgment against the Respondents as follows:(a)That orders do issue to permanently stop the Plaintiffs from trespassing, harassing, threatening and/or invading the 1st Defendant’s or in any other way whatsoever disturbing the 1st Defendant’s quiet possession of the suit property;(b)That this Honourable Court do issue orders directing the Plaintiffs to transfer all that parcel of land known as L.R No. Mahiga/Kamoko/1310 to the 1st Defendant;(c)That this Honourable Court do issue orders mandating the Land Registrar Nyeri County to remove and cancel the Title Deed issued to the Plaintiffs on 3rd January, 2010 depicting them as owners of all that parcel of land known as L.R No. Mahiga/Kamoko/1310;(d)That this Honourable Court do issue orders mandating the Land Registrar to register all that parcel of land known as L.R No. Mahiga/Kamoko/1310 in the names of the 1st Defendant herein; and(e)The Plaintiffs to bear the costs of this suit.

9. The 2nd and 3rd Defendants in the trial before the Lower Court filed a joint Statement of Defence. It was their case that they do not claim ownership of the suit property which they have always believed belongs to the Appellant herein. They expressed their willingness and sought a Court order to facilitate the removal of the structures belonging to Kiriti Nursery School which are on the suit property. They urged the Court to dismiss the Respondents suit with costs.

10. Having heard the dispute and in her Judgment dated 17th May, 2019 aforesaid, the Learned Trial Magistrate did find that the Respondents had proved their case on a balance of probabilities and granted them the orders sought in the Plaint plus general damages for trespass in the sum of Kshs.50,000/-.

11. Aggrieved by the said determination, the Appellant lodged the Memorandum of Appeal herein dated 11th June, 2019 urging this Court to set aside the entire Judgment on the grounds that:1. The Learned Trial Magistrate erred in law and in fact in entering Judgment for the Respondents as against the Appellant against the weight of evidence on record;2. The Learned Trial Magistrate erred in law and fact by disregarding the Appellant’s evidence that they have been in an uninterrupted occupation on the suit land for over 12 years since 1985;3. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that it was the Plaintiff’s patriarch Isaac Kiiru that was to procure the minutes of the County Council of Nyeri (as it then was) do searches for both exchange parcels and follow up with the Commissioner of Lands (as he then was) for eventual transfer to the Appellant;4. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate that it is the Respondents that were actually trespassing the Appellant’s land;5. The Learned Trial Magistrate erred in law and fact in delivering a biased Judgment as against the Appellant;6. The Learned Trial Magistrate erred in law and fact by failing to appreciate that the Respondents misrepresented facts to the Commissioner of Lands and the Lands Office at Nyeri by failing to disclose the agreement of sale of the said land and the prior exchange between the deceased father and the Appellant herein;7. The Learned Trial Magistrate erred in law and fact by disregarding the Appellant’s evidence on record; and8. The Learned Trial Magistrate, erred in law and fact in awarding costs of the suit to the Respondent when the Respondent was not successful in her case.

12. As the First Appellate Court, the duty of this Court is to re-evaluate the evidence that was placed before the Trial Court as well as the Judgment and to arrive at its own independent Judgment on whether or not to allow the Appeal. A first Appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand [See Selle & Another v Associated Motor Boat Company Limited & Others [1968] EA 123].

13. I have accordingly carefully perused and considered the Record of Appeal as well as the impugned Judgment. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the Parties herein.

14. By their Plaint filed in the Lower Court, the Respondent herein and two others had sought orders of eviction against the Appellant and two others from the parcel of land known as Mahiga/Kamoko/1310. The Respondent had accused the Appellant and the two other Parties of trespass to the land and sought orders of injunction to restrain them from remaining thereon as well as general damages for trespass.

15. On its part the Appellant denied that the Respondent was the proprietor of the suit land. It was the Appellant’s case that it had purchased the suit property from the Respondent’s husband one Kiiru Gichohi (also known as Isaac Kiiru) in 1985 and that it had been in occupation thereof ever since. The Appellant asserted that it came to learn in the year 2017 as it was waiting for a title to be issued to itself, that the Respondent and the others had illegally, maliciously and fraudulently colluded to have the property registered in their names as joint proprietors.

16. By way of its Counterclaim, the Appellant had sought orders to issue restraining the Respondent from trespassing into, invading or in any manner whatsoever interfering with the Appellant’s quiet occupation and possession of the suit property. In addition, the Appellant sought an order directing the Respondent to transfer the title to itself and for the Land Registrar Nyeri to cancel the title deed so issued to the Respondents and to have the same registered in its name.

17. From the material placed before the Court, the sole issue for determination by the Court was as to who between the Appellant and the Respondent was the rightful owner of the parcel of land known as Mahiga/Kamoko/1310 (the suit property).

18. In support of their claim to the land, the Respondents testified through one Leonard Gikaru Wachira as their sole witness. In his evidence before the Court as captured at Pages 117 and 118 of the Record, Leonard asserted that jointly with his mother Jedidah Wangechi Wachira and one Elizabeth Wairimu Ndegwa, they were the registered proprietors of the suit property having been so registered and issued with a title deed therefor on 3rd January, 2011.

19. It was Leonard’s position that his father Isaac Kiiru Gichohi had never sold any land to the Defendants since in 1985 when the Appellant had purported to purchase the same, the land was still in the name of the County Council of Nyeri. He told the Court that while his father had agreed to exchange ½ an acre of land with the Council, his father was not compensated by the Council until the time of his death in 1996.

20. On their part, the Appellants testifying through one David Mbugua Wanjiru asserted that they had purchased the suit property from Leonard’s father for Kshs.22,500/- in the year 1985. The Appellants insisted that Leonard’s father sold the land after he was compensated for the ½ acre he had exchanged with the County Council. It was their case that the Parties had executed a Sale Agreement in regard to the transaction and that thereafter Leonard’s father had renounced any further interest on the suit property.

21. Having considered the said issues, the Learned Trial Magistrate concluded as follows at pages 5 to 6 of her Judgment (Pages 90 and 91 of the Record):“10. The bone of contention in this matter regards the ownership of the suit property, that is L.R No. Mahiga/Kamoko/1310. The Plaintiffs are the registered proprietors of the suit property, a copy of title and a search dated 21st February, 2018 illustrate that the title was issued on 3rd January, 2011. The 1st Defendant in his Defence and Counterclaim had pleaded that they are the rightful owners of the suit property having bought the same from Isaac Kiiru in the year 1985. Isaac Kiiru being the patriarch of the Plaintiffs’ family.11. I have also seen a letter dated 18th January, 2018 where the County Council referenced a report dated 26th June, 1979 recommended (sic) an exchange of 0. 5 of an acre of L.R No. Mahiga/Kamoko/83 belonging to Isaac Kiiru for construction of a nursery school at Umbui. Mr. Kiiru was to be compensated an equal portion at Mahiga Chief’s Camp.12. It is the compensatory land at Mahiga Chief’s Camp that was sold to the 1st Defendant. To fortify their position, they have supplied the Court with a hand-written sale agreement in Kikuyu language. I did not have a benefit of receiving a translated version of the same. Nonetheless, the 1st Defendant has also produced an acknowledgement written by Kiiru Gichohi acknowledging receipt of full consideration for 0. 5 acres of land known as Mahiga/Kamoko at the old Chief’s Camp. Kiiru Gichohi thereafter declared his disinterest in ownership of the Plot in favour of Mahiga Children’s Home. By which time, the land had not been registered and remained in the name of the County Council of Nyeri. Upto the time I wrote this decision, the 1st Defendant has not secured a Title Deed in their favour.13. What is very clear in my mind, is that there was a land sale agreement between the late Isaac Kiiru also known as Kiiru Gichohi and the 1st Defendant. He sold land known as Mahiga/Kamoko at the Chief’s Camp. This is consistent with the land he was to be compensated by the Nyeri County Council. Vide a letter dated 7th October, 1985, Kiiru Gichohi communicated his intention to have the land transferred to AIC Mahiga home. The Plaintiffs therefore cannot turn around at this point and claim that there was no sale transaction between the 1st Defendant and Kiiru Gichohi. This has been proved beyond all doubt. Both Parties in their submissions dwelt on the issue of whether the 1st Defendant should have pursued a consent from the Land Control Board. The issue of transfer of the Mahiga/Kamoko Chiefs Camp now known as L.R Mahiga/Kamoko/1309 is not before me, and for that reason I will not delve into whether the consent of the Land Control Board should have been sought and issued in good time.14. I have spent considerable time evaluating the evidence regarding land known as Mahiga/Kamoko/1309 as it is related to what I am about to embark on. The 1st Defendant claims that the land they bought from Isaac Kiiru included the suit property herein and thus they claim ownership of the same. They have strongly alluded to the fraudulent acts of the Plaintiffs that led to the suit property being hived off the parcel 1309 and a title issued in their favour. The particulars of fraud are clearly outlined at Paragraph 7 of the 1st Defendant’s Counterclaim.”

22. Having made those observations and conclusions, the Learned Trial Magistrate proceeded to find at paragraphs 15 to 16 of her Judgment that the Appellant had failed to provide any evidence of fraud on the part of the Respondent’s in acquiring such property. According to the Trial Court, the Appellant ought to have for example demonstrated that the suit property was hived off parcel 1309 and that it was imperative that the Appellant ought to have called the Land Registrar Nyeri to clarify to the Court the genesis of the title to the suit property and that having not done so, their Counterclaim had failed.

23. I have, with respect, painstakingly gone through the pleadings and statements that were filed before the Trial Court. I was unable to find how the Trial Court came to the conclusion that the 0. 5 acres of land sold by Isaac Kiiru to the Appellant came to be known as L.R No. Mahiga/Kamoko/1309. Nor was I able to find anywhere in the Appellant’s Defence and Counterclaim where the Appellant had stated that the suit property was hived off the said L.R No. Mahiga/Kamoko/1309.

24. The position taken by the Respondent was that the Appellants were squatters on the said L.R No. Mahiga/Kamoko/1309 which according to the Respondent was public land. It was the Respondent’s case that on 8th February 2018, the Appellant had trespassed into the suit property owned by themselves and had destroyed certain structures thereon. On the other hand, the Appellant had stated that they had acquired by way of purchase both the suit property as well as the said L.R No. Mahiga/Kamoko/1309. The ownership of parcel 1309 was not the subject of the dispute before the Court and not much was stated as to its acquisition.

25. Having rightfully found that the said Isaac Kiiru had entered into a land sale agreement with the Appellant, I was unable to see how the Trial Court could at the same time arrive at the conclusion that the Respondent’s title was properly acquired. The basis of the Respondent’s case was that the family patriarch Isaac Kiiru had exchanged a 0. 5 acre parcel of land with the County Council of Nyeri for the construction of Umbui Nursery School. The Respondents vehemently insisted that until his death, Isaac Kiiru had not been compensated for the land.

26. In his Further Statement dated 21st March, 2018 as filed in the Lower Court (Page 188 – 189 of the Record), the 2nd Respondent – Simon Muthoga Kiiru states as follows at the relevant paragraphs 1 to 6 thereof:“1. That the 1st Defendant has misled the Court in stating that it had purchased the suit land from Kiiru Gichohi in 1985 since by then, the suit land did not exist and the said Kiiru Gichohi did not own any land by the name L.R No. Mahiga/Kamoko 1310;2. That the 1st Defendant have (sic) illegally continue(d) to Occupy L.R No. Mahiga/Kamoko/1309 which is public land owned by the County Government of Nyeri and they have never owned or continuously occupied the suit land L.R No. Mahiga/Kamoko/1310;3. That the Government only approved the exchange of the deceased land in Umbui (sic) with its land now L.R No. Mahiga/Kamoko/1310 on 10th July, 2009 through a letter to the Commissioner of Lands and as such the deceased could not have exercised any rights over L.R No. Mahiga/Kamoko/1310 until the exchange was approved as the land remained the property of the Government.4. That the Defendant herein had previously tried to raise the same issue with the County Council of Nyeri in a bid to try and illegally acquire ownership of the deceased land and the same was dismissed by the County Council since it appreciated that the suit land was still its property and the deceased owned a different parcel of land L.R No. Mahiga/Kamoko/1194;5. That the County Council in appreciating the fact that the deceased did not own the suit land as at the time of the purported sale, it advised the 1st Defendant to pursue the ownership of the land with the land tribunal for expeditious determination. The 1st Defendant has never approached any Court or Tribunal to pursue ownership of the suit property; and6. That by the time the exchange process was approved by the Government in 2009, the Land Registrar, noting that the said Kiiru Gichohi was deceased, called upon the beneficiaries of the deceased estate and required them to prove being beneficiaries to the deceased estate which they did by production of letter petitioning for Letters of Administration of the estate which the Land Registrar with approval of the Government proceeded to register the beneficiaries as the owners of the suit land in the year 2010 and subsequently, we were issued with the title deed on 3rd January, 2011. As such no fraud was used in the process alluded to by the 1st Defendant.”

27. Arising from the foregoing, it was evident that the Respondent’s only claim to the land was the fact that the same was compensation for the land that Isaac Kiiru had exchanged with the County Council for the building of a nursery School at Umbui. It was common ground that the compensatory land had been identified at old Mahiga Chief’s Camp.

28. As the Learned Trial Magistrate had rightfully found at Paragraph 12 of her Judgment, that land had been identified and was sold by Isaac Kiiru to the Appellant on 7th October, 1985. His family was not therefore entitled to another compensation even though the process of getting the necessary approvals from the Government took long.

29. Perhaps aware of the shenanigans that would follow the transaction, Isaack Kiiru Gichohi wrote to the Chairman Nyeri County Council on 7th October, 1985 (Page 187 of the Record) as follows:“ref: Transfer of Plot From Kiiru Gichohi To Mahiga Children’s HomeI have been kindly requested by the Management Committee of Mahiga Children’s Home to accept to give them and transfer to them my 0. 5 acre plot of land at the Old Chief’s Camp Mahiga. The County Council compensated me for my land and then the Council gave to Umbui Nursery School.For the good of the Children’s Home I have accepted the request.I am by a copy of this letter asking you to transfer all my interest regarding that plot from me to Mahiga Children’s Home.Please accept to process the transfer in favour of the AIC Mahiga Children’s Home.This I have agreed to and accepted and is witnessed by the Chief Mahiga Location and Assistant Chief Kamoko Sub-Location in the presence of my son Ndiritu Kiiru.Please effect the transfer.”

30. That being the case, it was apparent that Isaac Kiiru had long disposed of his interest in the compensatory land that he was entitled to from the County Council and that upon approval of the exchange, the Council ought as per his request to transfer the suit property to the Appellant and not to the Respondents as had happened herein.

31. In the premises, I was persuaded that the Learned Trial Magistrate had indeed erred in law and in fact in allowing the Respondents suit while dismissing the Appellant’s Counterclaim. That decision clearly went against the weight of the evidence that had been placed before the Court.

32. Accordingly I hereby allow the Appeal and set aside the Judgment delivered by the Trial Court on 17th May, 2019. The same is hereby substituted with an order dismissing the Respondents’ suit in its entirety and allowing the Appellant’s Counterclaim dated 16th March, 2018.

33. The Appellant shall have the costs both for the suit in the Lower Court and in this Appeal.

34. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 10TH DAY OF NOVEMBER 2023. In the presence of:No appearance for the AppellantMr. S. K. Njuguna for the RespondentCourt assistant - Kendi.....................................J. O. OlolaJUDGE