[2018] KEELC 2202 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC SUIT NO. 573 OF 2014(O.S)

WANJIRU KIBERE MUNGAI.......................................PLAINTIFF

VERSUS

MUNYUA MARIGI......................................................DEFENDANT

JUDGMENT

The plaintiff brought this suit by way of Originating Summons dated 9th May, 2014 seeking the following orders:

1. THAT the titles for L.R No. Kiambaa/Thimbigua/316 and L.R No. Kiambago/Karuri/T.148 (hereinafter referred to as “the suit properties”) registered in the name of the defendant be cancelled and the said properties registered in the name of the plaintiff;

2. THAT High Court Civil Appeal No. 260 of 1999 did not address the issue of family trust;

3. THAT the judgment that was made in the said Civil Appeal No. 260 of 1999 on 7th March, 2007 does not render this suit res judicata;

4. THAT the court can cancel first registration on account of fraud and/or misrepresentation;

5. THAT the defendant lied to court that he was the sole beneficiary of the estate of the plaintiff’s father, Nyanjui Wa Gatimu;

6. THAT Article 159 of the Constitution gives the court latitude to render substantive justice.

The Originating Summons was brought on the following grounds:

1. THATthe defendant secretly applied for letters of administration in respect of the estate of the plaintiff’s father, Nyanjui Gatimu without the knowledge of the plaintiff; and

2. THAT the defendant obtained the titles for the suit properties which formed part of the estate of the plaintiff’s father, Nyanjui Gatimu fraudulently.

In her affidavit in support of the Originating Summons, the plaintiff stated that she is the daughter of Nyanjui Gatimu (deceased) (hereinafter referred to only as “Nyanjui). The plaintiff averred that she had priority to apply for a grant of letters of administration in respect of the estate of Nyanjui. The plaintiff averred that the defendant applied for grant of letter of administration in respect of the estate of Nyanjui secretly in which application, he claimed that he was the sole beneficiary of the estate of Nyanjui. The plaintiff filed a further affidavit on 28th October, 2016 in support of the Originating Summons. In the further affidavit, the plaintiff attached as exhibits, the proceedings of the cases she had with the defendant at Kiambaa District Land Disputes Tribunal and Central Province Land Appeals Committee which were determined in her favour.

The defendant was served with the Originating Summons but neither entered appearance nor filed a replying affidavit in response. The Originating Summons was heard by oral evidence. The plaintiff gave evidence and closed her case without calling a witness. In her evidence, the plaintiff told the court that the defendant is the son of his paternal uncle known as Marigi. She stated that the dispute between her and the defendant concerned the suit properties. She stated that L.R. No. Kiambaa/Thimbigua/316 (“Plot No. 316”) had since been subdivided to give rise to L.R. No. Kiambaa/Thimbigua/17721 – 17725. She stated that the defendant was not entitled to own the suit properties absolutely. She stated that she was entitled to a share of the suit properties. The plaintiff stated that her father, Nyanjui and the defendant’s father were the sons of one, Marigi. She stated that she was the only child of Nyanjui and that her father was entitled to a share of the suit properties. She stated that the defendant had taken the suit properties including her father’s share. She stated that, she lodged a complaint against the defendant with the clan elders who ruled that she be given a portion of Plot No. 316 measuring 2 acres and Plot No. Kiambaa/Karuri/T.148. The Plaintiff urged the court to grant her a portion of Plot No. 316 measuring 2 acres and Plot No. Kiambaa/Karuri/T.148.

I have considered the Originating Summons together with the affidavits filed in support thereof. I have also considered the evidence that was tendered by the plaintiff in support of her case. I have at the begging of this judgment set out the reliefs that were sought by the plaintiff in the Originating Summons and the grounds upon which the said reliefs were based. At the trial, the plaintiff was supposed to prove her case as pleaded in the Originating Summons. I am not satisfied that the plaintiff proved her claim against the defendant. At the trial the plaintiff set out to prove a completely different case from the one she pleaded in the Originating Summons. In her evidence, the plaintiff tried to establish a claim based on customary trust. The plaintiff’s claim in the Originating Summons was not based on customary trust. The plaintiff claimed that the defendant had secretly applied for a grant of letters of administration in respect of her father’s estate purporting to be the sole beneficiary and in the process fraudulently got registered as the sole proprietor of the suit properties. The plaintiff led no evidence concerning the application for grant of letters of administration which the defendantwas alleged to have made in respect of the estate of her father. The plaintiff did not also lead evidence about the defendant’s alleged fraud in the acquisition of the suit properties. Although the defendant did not defend the Originating Summons, the court cannot allow the plaintiff to prove a case which she did not bring against the defendant.

The other feature of this case which I wish to comment on before I conclude this judgment relates to the reliefs sought by the plaintiff. As I have indicated at the beginning, the plaintiff sought several reliefs. In my view, only prayer (a) can be granted in an Originating Summons. Prayers (b) to (f) are strictly speaking, arguments or statements of law which the court cannot grant as reliefs.

In conclusion, it is my finding that the plaintiff has failed to prove her case against the defendant to the required standard. The Originating Summons dated 9th May, 2014 is without merit. The same is accordingly dismissed with no order as to costs.

Delivered and Dated at Nairobi this 26th day of July 2018

S. OKONG’O

JUDGE

Judgment read in open court before:

.............................................for the Plaintiff

..........................................for the Defendant

.............................................Court Assistant