[2015] KEHC 1629 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELCA NO. 251 OF 2013

WANJIKU WANJOHI MBUTHIA ............................ PLAINTIF

-VERSUS-

CHARLES MBUTHIA KIMINGI ................. 1ST DEFENDANT

ELENA WANJIRU KIMINGI .................... 2ND DEFENDANT

JUDGMENT

Introduction

1. By a plaint dated 16th December, 2013the plaintiff claims that whereas she is the registered owner of the parcel of land known as Othaya/Kiandemi/809 (hereinafter referred to as the suit property) and the developments thereon, she is unable to utilise the land as the defendant is forcefully in occupation of the same and utilising it to her detriment.

2. The plaintiff contends that the defendant has no colour of right or legally recognised claim over the suit property. It is the plaintiff’s case that the defendant's continued occupation of the suit property is trespass to land and has occasioned her great loss as she cannot enjoy the suit property and the developments thereon. For those reasons the plaintiff prays for judgment against the defendant for:-

a) An eviction order against the defendant from land parcel No. Othaya Kiandemi/809.

b) A permanent injunction against the defendant from re-entering the suit land.

c) Mesne profits for loss of use of the land.

d) Costs of the suit plus interest.

3. In reply to the plaintiff's claim, the defendant filed a statement of defence and counter-claim. In the statement of defence the 2nd defendant, Elena Wanjiru Kimingi explains that prior to the registration of the plaintiff as the proprietor of the suit property she was co-registered with Raphael Kimingi Mbuthia (deceased) as a proprietor of the suit property and contends that neither the plaintiff nor her husband had the legal capacity to deprive her of her share of the suit property.

4. Concerning the developments effected on the suit property and in particular the tea bushes and the trees therein, the defendants contend that they were not effected/planted by the plaintiff but the 2nd defendant.

5. Explaining that the plaintiff does not occupy the suit property, the plaintiff argues that their occupation thereof cannot be said to be trespass.

6. In their counter-claim, the defendant contends that the 2nd defendant and Raphael Kimingi Mbuthia were registered as the proprietors of the suit property in or around 1999. It is the defendant’s case, that following the registration of the 2nd defendant as the proprietor of suit property, she took possession of the suit property and the developments thereon.

7. It is the defendants’ case that registration of the plaintiff’s late husband as the proprietor of the suit property and the subsequent registration of the plaintiff as the proprietor of the suit property was effected by misrepresentation. The defendants claim that they only got to know of the plaintiff’s registration as the proprietor of the suit property upon being served with summons to enter appearance in this matter.

8. Arguing that registration of the plaintiff and/or her deceased husband as the sole proprietors of the suit property did not extinguish her interest in the suit property, the 2nd defendant seeks judgment against the plaintiff for:-

a) Dismissal of the plaintiff’s suit

b) A declaration that her interest in the suit property was not extinguished by the registration of the plaintiff as the proprietor of the property.

c) An order compelling the plaintiff to transfer to her a share of the suit property.

d) Costs of the suit.

EVIDENCE

The plaintiff's case

9. According to the testimony of the plaintiff, the suit property was given to her husband by his mother (deceased). Her husband alongside her brother were given two acres each. However, after her husband moved to Nanyuki, his brother Kimingi Mbuthia caused her husband’s share to be sub-divided into two parcels of of land measuring 1 acre each. Kimingi got himself and his daughter registered as the proprietors of the suit property.

10. When the plaintiff’s husband learnt that his brother had disinherited him, he went to court whereat he was referred to the Tribunal for hearing and determination of the dispute. The Tribunal upon hearing the dispute preferred before it, made an award in favour of her husband.

11. As the award was not appealed from, her husband got it adopted as an order of the court and later got the registration that had been effected in favour of his brother and his daughter (the 2nd defendant) nullified. Later, her husband applied for and obtained orders of eviction against his brother and the 2nd defendant from the suit property.

12. To prove the foregoing facts, the plaintiff produced the award issued in favour of her husband as Pebx 1; the court order vide which the award was adopted as an order of court as Pebx 2; a copy of the green card in respect of the suit property showing that the registration in favour of Raphael Kimingi and the 2nd defendant was nullified as a result of the order of the court referred to herein above as Pexbt 6. The green card also shows that the suit property was then registered in the name of the plaintiff’s husband and upon his death transmitted to the plaintiff. He also produced a title in respect of the suit property issued to the plaintiff after she obtained letters of administration in respect of her deceased husband’s estate as Pexbt 5.

13. The plaintiff informed the court that despite a court order having been issued for eviction of the defendants from the suit property, her attempts to take over the suit property have been in vain.

14. She maintained that owing to the defendant’s refusal to vacate the suit property, she has suffered and continues to suffer loss and prejudice. To prove this she produced an assessment report in respect of trees allegedly destroyed by the defendants asPexbt 7.

The defence case

15. The 1st defendant Charles Mbuthia Kimingi told the court that he knows the plaintiff as a wife of one of his deceased father’s brothers. The 2nd defendant is his sister. He stated that the suit property is currently owned by the 2nd defendant and her mother. He informed the court that the 2nd defendant’s title was issued in 1999 but was aware that that position had changed by the time the current suit was filed. He feigned ignorance of the circumstances that led to change in registration of the 2nd defendant.

16. He stated that neither the plaintiff nor her deceased husband own the developments effected on the suit property but admitted that there had a case between the 2nd plaintiff and the plaintiff’s husband but stated that the case was never concluded. Pointing out that they have been in occupation and in use of the suit property for a long time, he stated that it was not fair for them to be evicted therefrom.

17. He produced the title deed issued to the 2nd defendant and his father and a certificate of official search in respect thereof as Dexbt 1 and 2 respectively.

18. Upon being cross examined by counsel for the plaintiff, he admitted that the suit property is registered in the name of plaintiff but feigned ignorance concerning the circumstances that led to her registration. While admitting that he was aware that there was a suit between the plaintiff’s husband and the 2nd defendant he denied having knowledge that his deceased father was a party to the suit.

19. He also stated that he was aware of the order of the court requiring that they be evicted from the suit property but stated that by the time the order was issued they had voluntarily moved out of the suit property.

20. The court heard that none of the defendants live in the suit property but they utilise the same for farming. He denied having knowledge of Case no 13 vide which the 2nd defendants registration as proprietor of the suit property was nullified. He also denied the allegation that they have forcefully refused to leave the suit property.

21. On her part, the 2nd defendant informed the court that she was born and brought up in the suit property. Pointing out that the suit property was registered in his deceased father’s name and herself, she stated when her father passed on, he left her on the suit property.

22. Explaining that when the plaintiff's father was alive there was no dispute over the suit property, she stated that she was not aware how the plaintiff got registered as the proprietor of the suit property. Pointing out that she is the one who has been occupying and farming on the suit property and that the developments thereon were effected by her father, she urged the court to to allow her remain in the suit property.

23. Upon being cross examined by counsel for the plaintiff, she conceded that the house that had been built in the suit property was demolished but stated that she is not aware that the house was demolished pursuant to the court order issued in award case no 13 of 2001. She stated that she does not know who the parties to the award case were. She also stated that she was not aware that the suit property was registered in the name of the plaintiff’s husband’s name before it was transmitted to her.

24. While admitting that she cultivates the suit property, she denied having prevented the plaintiff from accessing the suit land or destroying any fence thereon.

25. With regard to her counter-claim she stated that she is claiming the entire parcel of land because it is what her father left her.

Submissions

26. In the submissions filed on behalf of the plaintiff, a brief overview of the cases for the respective parties is given and the following isssues identified as the issues for determination?

a) Whether the plaintiff is the lawful registered proprietor of the suit property to the exclusion of the 2nd defendant?

b) Whether the defendants are trespassers on the suit land?

c) Whether the defendants should be ordered to compensate the plaintiff for loss of use of the land?

27. With regard to the first issue, it is submitted that the green card/abstract in respect of the suit property filed and produced by the plaintiff as plaintiff's exhibit No. 6 indicates that on 18th November, 1980 the suit property was first registered in the name of Wanjohi Mbuthia, barely a month after it was registered in the name of Kimingi Mbuthia (the defendants deceased father).

28. It is pointed out that the the registration of the 2nd defendant and her deceased father which appears in the green card as entry No.6 was nullified and replaced with entry No. 1 (the registration of the plaintiff’s husband reinstated). The nullification of the 2nd defendants registration and reinstatement of the plaintiff’s husband as the proprietor of the suit property was effected vide entry number 10 in the abstract and through a court order issued in award No.13 of 2001.

29. Although the 2nd defendant feigned ignorance to that case, it is submitted that neither herself nor her deceased father appealed the decision that led to the rectification of the register.

30. With regard to the 2nd defendant's claim to the suit property, it is submitted that the defendants’ were pursuant to a court order evicted from the suit property, a fact which the defendants admitted. In view of the foregoing, it is submitted that the allegations by the 2nd defendant that she has always been in the suit property are untrue. The 2nd defendant is said to have failed to show how she acquired her interest to the suit property.

31. Pointing out that it is the re-entry or encroachment of the suit property by the 1st defendant which trigerred this suit, it is pointed that the only issue raised by the plaintiff in her pleadings is eviction and consequential orders. The issue of ownership of the suit property is said to have been re-introduced by the defendants. In this regard, it is submitted that the 2nd defendant’s counter- claim is tantamount to an appeal against the award case pursuant to which the register pertaining the suit property was rectified.

32. It is submitted that the issue of title to the suit property was determined and any right or interest of the 2nd defendant thereof extinguished through a judicial process. Pointing out that the 2nd defendant did not bring any claim against the title held by the plaintiff’s husband during his life time, it is submitted that the 2nd defendant’s counter-claim is an after thought and meant to prolong the defendants’ illegal stay on the suit property.

33. Terming the chronology of events that led to the registration of the plaintiff as the registered proprietor of the suit property clear, counsel for the plaintiff has submitted that the only reasonable conclusion is that the plaintiff is lawfully registered as the proprietor of the suit property.

34. On his part, counsel for the defendants submitted that there is no evidence to warrant finding that the 2nd defendant was a party to any court proceedings between her father and the plaintiff’s husband. He further submits that even if the court were to find that there were valid court proceedings between the plaintiff’s husband and the 2nd defendant, that in itself is not sufficient to extinguish the 2nd defendant’s rights.

35. With regard to this issue, having read and considered the evidence adduced in this case, I entertain no doubt that there were previous court proceedings between the plaintiff’s husband and the 2nd defendant and her father who were jointly registered as the proprietors of the suit property. Those court proceedings culminated in a judgment and order for rectification of the register in respect of the suit property by way of nullification of the entry entered in favour of the 2nd defendant and her husband.

36. Although the 2nd defendant feigned ignorance of the said court proceedings, the totality of the evidence led in court shows that she was a party to those proceedings. The testimony of the 1st defendant makes it clear that there were previous proceedings between the 2nd defendant and the plaintiff’s deceased husband concerning the suit property. In this regard see the 1st defendant’s testimony which was that:-

“ It is true that there was a case between the plaintiff’s late husband. I am not sure whether my father was a party to that case....it is true that there is as pex 2 an order for eviction but we vacated the land before the order was effected voluntarily. My sister moved to another parcel of land. ”

37. From the testimony of the 2nd defendant’s co-defendant above, it is dishonesty of the highest order for the 2nd defendant to claim that there was no dispute between herself and the plaintiff’s deceased husband.

38. Although the defendants’ have feigned ignorance to the circumstances that led to the registration of the plaintiff as the proprietor of the suit property, the evidence on record shows that she was registered as the proprietor of the suit property following the demise of her husband who was the registered owner of the suit property. The plaintiff being the undisputed wife of the registered proprietor had no duty whatsoever to involve the defendants in the succession proceedings as their rights to the suit property had been extinguished through a process sanctioned by law.

39. In any event, all what the plaintiff was supposed to do is to gazette her petition to be made the administrator of the estate of her deceased husband which she did. I do not know of any provision of the law which requires a widow to cite a person who has been found to be wrongfully on her husband's land before she can take out letters of administration in respect of her deceased husband's estate.

40. The evidence adduced in this court clearly shows that the 2nd defendant lost her interest through a judicial process. If she was aggrieved, she ought to have used the same judicial process to re-claim her right by way of appeal, review or judicial review. She did not. There is evidence that the defendants were evicted but decided to unlawfully regain entry. No court can countenance such behaviour as it amounts to outright contempt of court and its processes.

41. On whether the defendants are trespassers on the suit property, it is not in dispute that the defendants despite having been evicted from the suit property have continued carrying out farming activities on the suit property and picking tea bushes therein. All these activities are carried out against the wishes and interest of the plaintiff who is the registered owner of the suit property. The defendants having being previously evicted from the suit property by the plaintiff’s deceased husband, cannot be heard to say that they did not know about the plaintiff’s interest in the suit property or that they are not forcefully using the plaintiff’s property.

42. In the case of John Mithamo Njika v. Kellen Ngagala Nguumiri (2015) e KLR it was held:-

“According to Court of Appeal inKenya Hotel Properties Limited v Willesden Investments Ltd (2009) KLR 126,in a claim for mesne profits, there has to be evidence that the plaintiff is the owner of the property upon which the claim is based.

In this regard, the plaintiff has to show either that he is the registered owner of the suit land or he is in lawful occupation. That case also stands for the proposition that mesne profits is another term for damages for trespass. In other words, mesne profits mean one and the same thing as general damages for trespass. The meaning of mesne profits was described by the Court of Appeal in the above case as follows:

“This is in form of an ordinary claim for mesne profits, that is to say a claim for damages for trespass to land...................... The trespass thus lasted for a continuous period of 15½ years. The question for decision is the appropriate measure of damages. Mr Mowbray QC. made clear to the Board, as he had already made clear in the court below that Mr Hackett was claiming a reasonable rent for the apartments throughout the period of the trespass. This is the basis on which damages for mesne profits are awarded everyday in the County Courts.”

And to lend credence to this Stroud's Judicial Dictionary 4th Edition Volume 3 describesmesneprofits as:-

“Another term for damages for trespass arising from particular relationship of landlord and tenant.”

43. In the case of Park Towers Ltd v. John Mithamo Njika & 7 others(2014) e KLRJ.M Mutungi J., stated:-

“I agree with the learned Judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique facts and circumstances of each case. As observed in the cases referred to there is no mathematical or scientific formula in such cases for assessment of general damages. However in the case before me I consider that the suit properties are sizeable parcels sitting on nearly three quarters of an acre of land located in the Central Business District (CBD). This is a prime property in the City Centre and any unlawful act of aggression and/or intrusion that prevents the rightful owner of the property from enjoyment of his ownership rights of possession and use is to be frowned at and is punishable by way of an award of damages.In the Willesden Investment Ltd case (supra) O.K. Mutungi J. awarded general damages of Kshs.10,000,000/- for trespass onto a property within the CBD. Considering the circumstances of this case and having regard to the fact that the award in the above case was made nearly 10 years ago, I assess general damages of Kshs.15,000,000/- as fair and reasonable having regard to the lapse of time and inflation.”

44. On whether the defendant’s should compensate the plaintiff for loss of use of land, on behalf of the plaintiff, it is submitted that there being evidence that the defendants have been using the plaintiff’s property against her wishes and in blatant disregard of her interest therein, they should be ordered to pay her mesne profits amounting to kshs. 183,330/= for loss of use of land and proceeds from tea leaves.

45. Having found that the defendants to have been trespassers on the plaintiff’s land and trespass being actionable per se and being of the view that the culture of disbedience of court orders and disregard of court processes needs to be discouraged, I find and hold that the plaintiff has made up a case for award of general damages for trespass to land and assess them at Kshs. 100,000/=.

46. The upshot of the foregoing is that the plaintiff’s suit has merit and is allowed with costs. The defendant’s counter- claim is dismissed with no orders as to costs.

Dated, signed and delivered at Nyeri this 1st day of October, 2015.

L N WAITHAKA

JUDGE.

In the presence of:

Mr. Kimunya for the plaintiff

Mr. Muchiri h/b for Mr. Kiminda for the defendant

Court assistant - Lydia