[2019] KEHC 2400 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL SUIT NO.82 OF 2008

VERONICAH JEPKOSGEI MWAIMET.........................................PLAINTIFF

VERSUS

JANE CHUMO.........................................................................1ST DEFENDANT

LEAH CHUMO........................................................................2ND DEFENDANT

JUDGMENT

1. VERONICAH JEPKOSGEI MWAIMET (the Plaintiff) is the daughter of the late SEGITE CHEPKWONY who owned of Plot NO.23(FORMERLY PLOT NO.21) situated at Nyaru Trading Centre together with the premises existing on the said plot. It is her case that JANE CHUMO (1st defendant) and LEAH CHUMO (2nd defendant) both jointly and severally entered into the aforementioned plot which comprises the Estate of her deceased father and refused to part with possession thereof. Further, that they have fraudulently caused their names to be registered in the County Council’s books as the owners of the said plot without the knowledge and consent of the representatives of the Estate of the deceased.

2. The Plaintiff prays for:

a) a declaratory order to issue against the Defendants both jointly and severally to the effect that they are not entitled to Plot No.23 (formerly Plot No.21) together with the premises situate at Nyaru Trading Centre; and

b) that an order of eviction to issue against the Defendants; and

c) an Order that the plot solely devolves to her and her child; and

d) the Defendants have no legal or equitable rights at all.

Consequently, she prays that Judgement be entered in her favour as against the Defendants jointly and severally.

3. The Defendants deny all the contents of the plaint claiming that they bought the plot from one JOSEPH MALEL and are therefore entitled to its occupation.

VERONICA CHEPKOSGEI MAIMET (PW1) testified that her late father SEKITE ACHEPKWONY gave her a plot at Nyaru Trading Centre being PLOT No.23 (formerly Plot No.21) in the year 1963 when she was 9 years old. She did not take possession immediately, and did not visit the plot between 1973-1980. When she eventually wanted to occupy, she found the Defendants in occupation. She reported the matter at the Chief’s office and upon inquiry, was told by the 2nd Defendant’s husband (one CHELAGAT), that they bought the said plot from JOSEPH KIMALEL. She was shown a sale agreement document dated 2nd June, 1980 between the defendants and one JOSEPH MALEL. The 2nd Defendant showed her another document dated 22nd May, 1973 which indicated that her father sold the said plot to JOSEPH KIMALEL yet her father died in 10th October, 1963. The two documents were produced in court as Exhibits 1 and 2 respectively.

4. She reported the matter to the Chief’s office and was referred to the District Commissioner who in turn directed her to the court. The plaintiff filed ad colligenda bona where she was granted Letters of Administration to file suit on behalf of the estate of her late father. She later filed Miscellaneous suit being ELD.H.C.MA.NO.48/99(O.S) to obtain court leave to file suit out of time and this was granted. In cross examination, she stated that she discovered that the Defendants were in occupation of the plot in the year 1993.

5. PW2 (SIOKWEI SEGITI) the widow of the late SEGITI CHEPKWONY told this court that that her late husband had plot on which he had built a shop at Nyaru Centre, and had donated the same to the Plaintiff. She disputed the claims that her late husband had sold the said plot. On cross examination, she told the court that she does not know Joseph Malel nor was she aware that anyone had encroached on the said plot. As far as she knows it was her late husband who was operating the poshomill on that plot.

6. LEAH KIPROP (DW1) told this court that she acquired the plot from JOSEPH MALEL in 1980. She explains that when she checked the records held at ELGEYO-KEIYO County, it disclosed that the plot was in MALEL’s name, so they entered into a sale agreement, although she did not have a copy of the sale agreement.

She did not know how he acquired the plot, but was content that it was in his name. However, on being shown a document in court, DW1 pointed out that it was a sale agreement dated 22/05/1973 between SIGIDE CHEPKWONY as the vendor, and MALEL as the purchaser.

7. NATHAN KIKURUI LANGAT (DW2), the Public Works Officer at Elgeyo-Marakwet County was asked to verify, the status of the plot in question, and by a letter dated 2nd June 2009 which stated as follows:

RE: PLOT 23 NYARU TERADING CENTRE

This is to confirm that this plot No 23 at Nyaro Trading Centre, was issued to the following people: Leah Kiprop and Jane Chumo of Box 4260 Eldoret vide Min P.A 6/93

8. On cross examination, the witness stated that he could not tell how the two acquired the plot.

The following issues arise for determination

(i) Whether the then Keiyo County Council Allotted Plot No.23(Formerly Plot No.21) Situate at Nyaru Trading Centre to the Late Segite Chepkwony or to Joseph Malel.

There is a dispute that Plot No.23(formerly Plot No.21) had been allotted to the late SEGITE CHEPKWONY by the now defunct KEIYO COUNTY COUNCIL. Did late SEGITE erect structures to run business which he leased to JOSEPH MALEL, who in turn used the premises as a posho mill. Joseph Malel further claimed to have purchased the plot from the late Segite Chepkwony, however, Joseph never testified to confirm this claim. But even if it was to be accepted that the plot had been allocated to the said SEGITE, there still remains a disputed position-did he then lease it to JOSEPH to use, or did he sell to him that portion to.

It is instructive to note that Segite is purported to have sold the plot to MALEL vide a document dated 22nd May, 1973 yet it is not disputed that the very vendor had died ten years earlier on 10th October, 1963. Of greater significance is that the defendant’s confirmation that MALEL is still alive, yet they did not consider it necessary to have him come to court to clarify the circumstances under which he became the owner of the disputed property. If the property was allotted to the said MALEL, nothing would have been easier than for DW2 to present records from the County registry giving the history of the property-instead he selectively presented only what is in fact being questioned…if the defendants were not direct allotees (which they have confirmed by insisting that they were bona fide purchasers for value), then where are the records showing that MALEL was the legal allotee? The only reasonable inference to draw is that no records are available because non exist at all.

(ii)Whether Joseph Malel had Capacity to Sell Plot No.23 to the Defendants.

It would then be a logical consequence to draw that, Joseph Malel had no capacity to sell Plot No.23 which is the property of the late Segite Chepkwony. He may have rented the business premises to carry out business but he is coy to attend court and confirm whether that arrangement alone would warrant acquisition of the said property as the owner.

I concur with the plaintiff’s counsel that the defendants were duped by JOSEPH MALEL to enter into a void sale agreement and ought to have conducted due diligence to ascertain the legal owner of the said plot. Indeed, the sale was illegal and fraudulent as he had no capacity to sell the said plot.

(iii)Whether the names of the defendants should be deleted in the records/books of the County Government of Elgeyo Marakwet and replaced with the name of the Late Segite Chepkwony as the Legal owner of plot No. 23.

10. This court is urged to find that the defendant’s acquisition of Plot No.23 at Nyaru Trading Centre is illegal in that they purchased the plot from a person who had no legal right and capacity to carry out transaction over the same. They seek to have the names of the Defendants deleted from the records and replaced with the name of the late Segite Chepkwony who should be deemed as the first legal allottee, and have Plot No.23 revert to the Original Owner.

It is submitted on behalf of the plaintiff that the defunct Keiyo County Council had no capacity to revoke allocation of plot No. 23 to the late without informing him. However, to be fair to the defendants, the plaintiff too did not produce any no evidence that the KEIYO COUNTY COUNCIL had revoked the allocation. The probability that the late SEGITE was the allotee is borne out by the attempts to sanitize MALEL’s ownership through a purported sale agreement which is dated 10 years after his death. I doubt that the initial allotment was revoked, what probably happened was some mischief by the reclusive MALEL who has remained in the shadows.

11. As a last shot, the defence counsel in his submissions now introduces the argument that, the suit is time barred as MALEL had been on the land from the 60’s and acquired ownership in the 70’s, thereafter the defendants purchased the same in 1980 and remained without interruption until 1990- a lapse of 19 years. That the suit thus offends the Limitation of Actions Act. That in any event, the plaintiff has no capacity to file this suit having only obtained a grant ad colligenda bona, instead of grant ad litem.

12. There are various classes of limited grant, but the underpinning is it is specific to its purpose. Grant ad colligenda bona is provided for under section 67 of the Law of Succession, as well as rules 36 and 37 of the Probate and Administration Rule. According to Mwera (J) in The Matter of the Estate of Dr John Muia Kalii Machakos Succession Cause No 81 of 1995t is normally made where the assets of the estate are perishable or precious in nature and need quick urgent attention. It is intended to give the administrator power only to collect and preserve the grant estate pending the making of a full grant. Grant ad colligenda bona does not in any way give a right to take the place of a deceased person for the purpose of instituting a suit-it does not confer on one the status of a personal representative.

13. On the other hand, grant ad litem enables one to represent the estate where the estate has been sued or intends to sue. I think the plaintiff has properly moved the court, to the extent that she wishes to preserve the property as part of the assets of the estate. However, she then mixes this up with the prayer for declaratory orders as regards who is the owner of the property, and prayers for eviction orders, thus discolouring it with the characteristics that she is suing on behalf of the estate of the deceased; and which would require her to move by way of grant ad litem!

14. Finally, does the suit offend the Limitation of Actions statute? Section 7 of the Limitation of Actions Act (Cap 22) provides that:

An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person

15. It is this provision that rings the death knell on the plaintiffs claim. It is apparent that this is a claim to recover land disguised as an attempt to preserve the estate of the deceased, and amounts to an abuse of the court process. The plaintiff’s counsel had very good arguments, but these must fail in light of the fact that the claim is time barred. Consequently, the suit fails and is dismissed with costs to the defendants.

Delivered, Signed and Dated this 7th day of October 2019 at Eldoret

H. A. OMONDI

JUDGE