[2024] KECA 321 (KLR)

Wambugu v Mukua (Sued in the Capacity of Administrator and Legal Representative of the Late Mukua Kamau) (Civil Appeal 218 of 2018) [2024] KECA 321 (KLR) (22 March 2024) (Judgment)

Neutral citation: [2024] KECA 321 (KLR)

Republic of Kenya

In the Court of Appeal at Nyeri

Civil Appeal 218 of 2018

J Mohammed, LK Kimaru & AO Muchelule, JJA

March 22, 2024

Between

Samuel Kihara Wambugu

Appellant

and

James Kariuki Mukua (Sued in the Capacity of Administrator and Legal Representative of the Late Mukua Kamau)

Respondent

(Being an appeal from the judgment of the Environment and Land Court at Nyeri (Waithaka, J.) dated 31st May, 2018 in ELC Case No. 60 of 2014 Environment & Land Case 60 of 2014 )

Judgment

1. The appellant, Samuel Kihara Wambugu, filed a suit before the Environment and Land Court (ELC) seeking judgment to be entered against the respondent, James Kariuki Mukua, in his capacity as the administrator and legal representative of Paul Mukua Kamau – deceased. The appellant’s claim was that the respondent held one (1) acre out of the parcel of land registered as Land Reference No. Mahiga/Kihome/386 (the suit parcel of land) in trust for the appellant, his younger brother and mother. The appellant pleaded that the basis of his claim was that during the Land Adjudication, Demarcation and Consolidation in the 1950’s, his late father’s paternal uncle one, Kamau Kihara, “took upon himself to consolidate his brother’s land with that of his and it was registered together in the name of his son, Paul Mukua Kamau – deceased”.

2. The appellant further stated that his family took possession of the said one (1) acre portion of land in 1962 when they were shown the same by their said paternal uncle. The appellant averred that they had been residing on the said portion of one (1) acre out of the suit parcel ever since and had developed the same by erecting buildings thereon and engaging in farming activities on the same. It was on that basis that the appellant urged the trial Court to declare that the respondent, as the legal representative of Paul Mukua Kamau – deceased, held the said portion of the suit parcel of land in trust for the appellant and members of his family. The appellant further prayed that upon the determination of the said trust, an order be issued rectifying the register of the title in respect of the suit parcel of land to reflect the decision.

3. The respondent filed a defence in which he denied the appellant’s claim and put him to strict proof thereof. He asserted that the deceased was registered as the sole proprietor of the suit parcel of land and denied that he was under any circumstances registered as a trustee of a portion of the same for anyone. The respondent wondered why the appellant did not lay claim over the said portion of the suit parcel of land during his father’s lifetime. The respondent denied the appellant’s claim that the appellant’s family at any time took possession of the said portion of land and that he was entitled to the same, either in trust or in adverse possession.

4. In his further defence, the respondent stated that the appellant was the previous owner of Land Parcel No. Mahiga/Kihome/387 which he exchanged with Mumwe Primary School and was given public land in Kihome village where he resides to date. The respondent urged the Court not to find favour with the appellant’s assertion that there existed a trust. He pointed out the issues in dispute had substantially been determined in Nyeri High Court Succession Cause No. 767 of 2008. The cause was stayed pending the hearing and determination of the suit. The respondent urged the Court to dismiss the appellant’s suit with costs.

5. The trial court heard the suit by way of viva voce evidence where the parties herein together with their witnesses adduced oral evidence. Upon considering the said evidence and the submissions filed, the trial court dismissed the appellant’s suit with costs.

6. At the material part of the judgment, this is what the learned Judge of the Environment and Land Court said:“30. Having carefully reviewed the evidence adduced by the plaintiff in support of the pleaded trust, I find it to be incapable of proving any trust in his favour in the suit property. I say so, firstly, because the evidence adduced in this suit shows that the suit property was not ancestral land before it was registered in the name of the defendant’s father. Secondly, it is common ground that the suit property was bought by the defendant’s father. Thirdly, there is no evidence of any contribution by the plaintiff’s father in the acquisition of the suit property and fourthly, I find the plaintiff to be an unreliable witness as he has changed his story concerning ownership of the suit property.”

7. Aggrieved by this decision, the appellant lodged the present appeal. In his memorandum of appeal, the appellant raised three grounds of appeal, challenging the decision of the trial court. He faulted the trial court for failing to properly evaluate and analyze the evidence adduced and thereby arrived at an erroneous conclusion that was not supported by both the facts and the law. The appellant took issue with the fact that the trial Judge believed the defence’s case despite the fact that he had established that he had resided on the said portion of the suit parcel for a considerable period of time. He was finally aggrieved that the trial court had departed from the filed pleadings and failed to appreciate that he had established the existence of a customary trust which ought to have been upheld by the trial Court. In the premises therefore, the appellant urged the Court to allow the appeal, set aside the impugned decision and substitute it with a judgment of this Court allowing the appellant’s claim as prayed in the suit. He also urged this Court to award him the cost of the appeal.

8. Prior to the hearing of the appeal, both the appellant’s and the respondent’s advocates filed written submission in support of their respective opposing cases. During the plenary hearing, Mr. Nderi, learned counsel for the appellant amplified the written submissions by submitting that the appellant had established, to the required standard of proof, that a trust existed. He stated that the trial court ignored the evidence that the appellant had been in possession of the said portion of the suit parcel of land since 1963. Learned counsel urged the Court to find that the respondent’s father was registered to hold the said portion of one (1) acre in his trust and that of the members of his family. He urged the Court to allow the appeal.

9. On his part, Mr. Kebuka Wachira for the respondent, urged the Court to disallow the appeal. He submitted that the appellant failed to establish the existence of a trust or produce any evidence to establish that he was entitled to the said parcel of land. In particular, he pointed out that the appellant gave contradictory evidence which could not form a basis for his claim to be allowed. He agreed with the finding made by the trial court that the appellant was an unreliable witness who was not worthy of credit. He urged the Court to dismiss the appeal just as the trial court did.

10. We have carefully considered the facts of this appeal, including the submissions, both oral and written filed by the parties to this appeal. The duty of the first appellate court is circumscribed. In Peter M. Kariuki v Attorney General [2014] eKLR, this Court held thus:“We have also, as we are duty bound to do as the first appellate court, reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions, and to satisfy ourselves that the conclusions reached by the trial Judge are consistent with the evidence…”

11. We are further commanded to be conscious of the fact that we neither saw nor heard the witnesses as they testified before the trial court and therefore give due allowance in that regard (See Selle v Associated Motor Boat Co Ltd [1968] EA 123).

12. In the present appeal, the appellant’s claim over the said portion of one (1) acre out of the suit parcel of land is based on trust. Although he did not specifically plead customary trust, it was clear from the evidence that the appellant adduced before the trial court that he was indeed laying his claim over the suit parcel of land on the basis that there exists a customary trust. The Supreme Court in Isaak Kieba M’Inanga v Isaaya Theuri M’Lintari & Anor. SCOK No. 10 of 2015 held thus:“Each case has to be determined on the own merits and quality of evidence… Some of the elements that would qualify a claimant as a trustee were: (a) the land in question was before registration, family, clan or group land, (b) the claimant belonged to such family, clan or group, (c) the relationship of the claimant to such family, clan or group was not so remote or tenuous as to make his/her claim idle or adventurous,(d) the claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances, (e) the claim was directed against the registered proprietor who was a member of the family, clan or group.”

13. It is the appellant’s assertion that the portion of one (1) acre out of the suit parcel of land was his late father’s entitlement after the respondent’s father consolidated it into the suit parcel of land during the adjudication and consolidation process in the 1950s. It was common ground that the appellant’s and the respondent’s respective fathers were brothers. The appellant claimed that the suit parcel of land originally was ancestral land which belonged to their paternal grandfather. From the evidence adduced by the appellant in the various fora, it was evident that the appellant made this claim without adducing any credible evidence to support his assertion.

14. The grounds upon which the appellant based his claim were that: a) he was entitled to the portion of the suit parcel of land because it was ancestral land before the first registration; b) that he had been in occupation of the said portion of the suit parcel of land since 1962; and c) that a trust therefore had been created by the existence of the above set of circumstances.

15. The evidence adduced before the trial court did not, however, bear out the appellant’s claim. The respondent indeed established that his late father purchased the suit property and did not inherit the same from his father (the respondent’s grandfather). The suit parcel of land cannot, in the circumstances, be considered as ancestral land. Secondly, it was clear from the evidence adduced, including the appellant’s own testimony in Kangema Senior Resident Magistrate’s Court Succession Cause No. 23 of 1998, that he was not currently in possession of the said portion of one (1) acre of the suit parcel of land. The appellant testified that as long ago as 1976, he was not in possession of the suit parcel of land. Indeed, he conceded that the respondent’s family members were the ones who have been in occupation of the suit parcel of land. The appellant’s claim was not helped by the appellant’s own inconsistent evidence which kept shifting depending on which adjudication fora he appeared before.

16. Our re-evaluation of the appellant’s evidence leads us to the irresistible conclusion that he was less than candid in his testimony. His narration of what he claimed to be the true state of affairs regarding the ownership of the suit parcel of land was not worthy of credit. On the other hand, the evidence of the respondent and members of his family was consistent and credible in all material respects concerning the ownership of the suit parcel of land.

17. We, therefore, hold that the appellant failed to establish, to the required standard of proof on a balance of probabilities, the existence of a trust, customary or constructive, to convince the trial court to decide the suit in his favour.

18. The appeal lacks merit. It is hereby dismissed with costs to the respondent.

DATED AND DELIVERED AT NYERI THIS 22ND DAY OF MARCH, 2024. JAMILA MOHAMMEDJUDGE OF APPEAL.............................................L. KIMARUJUDGE OF APPEAL.............................................A. O. MUCHELULEJUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR