Case ID:168241

Elijah Ngugi Njoroge v Irene Wamuyu Gacheru & another [2020] eKLR

Case Metadata

Case Number:

Environment and Land Appeal Case 11 of 2019

Parties:

Elijah Ngugi Njoroge v Irene Wamuyu Gacheru( Administrator of the Estate of Josephat Gacheru Mwangi) & Geoffrey Mungai Karanja

Date Delivered:

17 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Elijah Ngugi Njoroge v Irene Wamuyu Gacheru & another [2020] eKLR

Case History:

Being an Appeal against the whole of the Judgment and order of Hon. M.W Wanjala Senior Resident Magistrate, Thika on 22nd January 2019

Court Division:

Environment and Land

County:

Kiambu

History Magistrate:

Hon. M.W Wanjala Senior Resident Magistrate

History County:

Kiambu

Case Outcome:

Appeal dismissed with costs to the Respondents

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC APPEAL CASE NO. 11 OF 2019

ELIJAH NGUGI NJOROGE.........................APPELLANT

VERSUS

IRENE WAMUYU GACHERU(

Administrator of the Estate

of Josephat Gacheru Mwangi

)..................1

st

RESPONDENT

GEOFFREY MUNGAI KARANJA.....2

ND

RESPONDENT

(

Being an Appeal against the whole of the Judgment and order of Hon. M.W Wanjala Senior Resident Magistrate, Thika on 22

nd

January 2019

)

IN

IN THE CHIEF MAGISTRATES COURT AT THIKA

CIVIL SUIT NO. 720 OF 2013

JOSEPHAT GACHERU MWANGI.......1

ST

PLAINTIFF

GEOFFEREY MUNGAI KARANJA...2

ND

PLAINTIFF

VERSUS

ELIJAH NGUGI NJOROGE.............1

ST

DEFENDANT

GITHUNGURI CONSTITUENCY

RANCHING COMPANY LTD.........2

ND

DEFENDANT

JUDGMENT

The Appellant herein

Elijah Ngugi Njoroge

was the Defendant in

Thika CMCC

No. 720 of 2013.

The Respondents were the Plaintiffs in the above stated suit. The Plaintiffs (Respondents) had via a Further Amended Plaint dated

29

th

October 2018,

sought for the following orders against the Defendants;-

a.

A Declaration that the 1

st

Plaintiff is the legitimate and the legal owner of land parcel

No. Ruiru/Kiu Block 2/3857.

b. An order of rectification / cancellation of abstract of title in respect of land parcel

Ruiru/Kiu Block 2/3857

into the names of the 1

st

Plaintiff.

c. A permanent Injunction restraining the Defendants by themselves and/or employees, servants and /or agents from selling, disposing and or in any other manner whatsoever interfering with the Plaintiffs ownership of land parcel number

Ruiru/Kiu Block 2/3857.

d. Costs and interests of the suit and interest thereon at Court.

e. Any other and/ or further relief as the Honourable Court may deem just and fit to grant.

In their statement of Claim, the Plaintiffs(Respondents) averred that the 1

st

Defendant(Appellant) is the registered owner of the suit property which registration was done in a secretly, fraudulent and dubious manner. That the 2

nd

Plaintiff (2

ND

Respondent) is a member of

Githunguri Constituency Ranching Company Limited

dating

1980,

when he was allocated the suit property by the Company. That he was in possession of the same since the time of allocation, to the time of sale to the 1

st

Plaintiff (1

st

Respondent) though the plot was not developed. That on

13

th

January 2012

, the 1

st

and 2

nd

Plaintiffs (Respondents) entered into a sale agreement of the suit property for a consideration of

Kshs. 350,000/=.

That the 1

st

Plaintiff (1

st

Respondent) duly paid all the requisite fees to the Company offices and was issued with a clearance certificate from the said offices and a bonafide official signed the transfer form to effect transfer into the names of 1

st

Plaintiff (1

st

Respondent) As per the Company offices, the land was not yet registered at the Lands office. Further that upon lodging the duly signed transfer forms , the 1

st

Plaintiff(1

st

Respondent) learnt that there was a title deed already issued in the name of the 1

st

Defendant (Appellant) leading the Plaintiffs(Respondents) to lodge a caution.

It was discovered that the 1

st

Defendant (Appellant) was never a member of the said Company as per their records and he was not able to explain how the title document came about. It was averred that the Defendants actions were fraudulent for reasons that he purported to be a shareholder of the Company and hence an allottee of the suit land whilst he was not, presenting forged documents to the Thika Lands Registry and acquiring a title in respect of the said land.

The suit was contested and the Defendant (Appellant) filed a statement of Defence and Counter Claim dated

17

th

October 2013

. In his statement of Defence, the Defendant denied all the allegations made in the Plaint and admitted that he was the registered owner. He contended that the 2

nd

Plaintiff (2

nd

Respondent) was not an allotee of the suit land and averred that he did not have to be a member of the Company to be a legal owner of the suit property. That he was a bonafide purchaser for value from

Mary Wanjiku Kiarie,

without notice of any adverse claim on the suit land. That there was no reason for him to hand over vacant possession. He urged the Court to dismiss the Plaintiff’s suit.

In his Counter claim the Defendant( Appellant) sought for orders that;

a. A permanent Injunction against the Plaintiff, their agents, servants, employees, relatives, family members and or anybody else claiming through and or with them from destroying beacons , trespassing, charging, disposing off, wasting., alienating and or in any manner interfering with land parcel

No. Ruiru/kiu/ Block 2/3857.

b. The land Registrar Thika be and is hereby ordered to remove the caution lodged by the 1

st

Plaintiff, Josephat Gacheru Mwangi on land parcel No.

Ruiru/kiu Block 2/3857

forthwith.

c. Costs and interest of the suit and Counter claim.

d. Any other and or such further relief as the Honourable Court may deem fair and just.

The Defendant (Appellant) reiterated the contents of the Defence and averred that

Mary Wanjiku Kiarie

offered to sell the suit property to him and he was given a copy of the title deed. That he conducted an official search which confirmed that the suit property belonged to the vendor absolutely. That he was shown the suit property and the vendor was in possession. That on

6

th

January 2009,

the Vendor obtained the consent of the Land Control Board and on

23

rd

January 2009,

they formalised their transaction. Further that on

24

th

January 2009,

the vendor executed the transfer forms in favour of the Defendant and on

12

th

February 2009

, he was issued with a title deed.

That the Defendant (Appellant) subdivided the land into several plots and in early

2013,

when he conducted an official search, he learnt that a caution had be lodged by the 1

st

Plaintiff ( Respondent) claiming beneficial interest .It was contended that the Plaintiffs ( Respondents have no right to lodge a caution against the suit land.

The matter proceeded via viva voce evidence as follows:-

PLAINTIFF’S CASE

PW1 Irene Wamuyu Gacheru

testified that she was the widow to the late

Josephat Gacheru Mwangi,

and she had letter of Administration dated

20

th

April 2018.

She adopted the witness statement of the late

Josephat Gacheru

dated

24

th

June 2013,

as her evidence . She produced a list of documents as Exhibit 1 to 5. She further produced the list of documents filed on

21

st

September 2015

as Exhibit 6 and 7 and ballot card as Exhibit 8 . It was her evidence that her late husband bought the land from

Geoffrey Munga Karanja,

who was a shareholder at

Githunguri

. That all the necessary transfer processes were done at the

Githunguri Ranching Company

offices . That her husband was not a shareholder at

Githunguri Ranching Company,

but they were given all documents. However, when they visited the Thika Land Registry, they found a title over the same piece of land had already been issued to

Elijah Ngugi Njoroge.

She further testified that the share certificate she relied on dated

19

th

October 1972

shows the number of shares as

40

while the capital shares were

1,000,000

divided to into 100 ordinary shares of

Kshs. 10

each. That the title from

Mary Wanjiku Kiarie

shows that

Elijah

bought land from her who already had a title. That

Mary Wanjiku

should have been a shareholder and her name should have been in the file. That though

Mary

was in the register, she had a different plot from the suit property. That

Geoffrey

was a member of

Githunguri Ranching Company

since

1980,

and the receipts showed he paid for the title on

28

th

July 1989

though the receipt did not mention the plot number. That the said

Mary

sold land to

Elijah

without proper documents.

It was her further testimony that the share certificate shows the number of shares as 40. That

Githunguri Ranching Company Limited

confirmed that

Mungai

was a shareholder and had cleared all payments and he was the one who sold the suit property to her husband and what remained was the processing of the title deed. That

Githunguri

Ranching Company

informed her that they had not sold her land to anyone else.

PW2 John Maina Mburu

testified that he is the Chairman of

Githunguri Constituency Ranching Company Limited

. That he became a director on

12

th

September 2009

. He adopted his witness statement dated

21

st

November 2018.

It was his testimony that the 2

nd

Plaintiff had bought land from

Geoffrey Mungai Karanja

and

Josephat

had visited their offices accompanied by

Geoffrey

. That one must have shares in the Company for one to become a shareholder. That registration was by paying requisite fees and a receipt issued. That after payment, one was allocated a plot. That after paying for shares, one was then allowed to ballot.

It was his evidence that

Geoffrey Mungai

was the original owner of the Plaintiff’s documents before the same were transferred to

Josephat,

who was then issued with a share Certificate

No. 2617

. That share Certificate No.

2449

was issued before the land was subdivided and by the time of issuance, he had contributed

40 shares

. He denied that they ever sanctioned transfer of the land to the Defendant. That the Defendant was a shareholder when he was elected into office but he had no documents for the suit property.

He confirmed that he had signed the letter dated

14

th

September 2015,

and the Clearance Certificate. Further that he made the entries in the clearance certificate and the only entry he made was for

13

th

January 2012,

being the name

Josephat Mwangi

and the date. That a fully paid up member was supposed to have

100

shares. Further that Geoffrey was issued with another share certificate showing that he was issued with the remaining shares. That

Certificate No. 151

shows that he was issued with a residential Plot. It was his testimony that the Company never issued

Geoffrey Karanja

with a title deed nor a clearance certificate. That one was required to pay survey fees of

Kshs. 600/=

at the

District Commissioner

Kiambu,

and

Kshs. 800/=

for shares. That the value of the shares was increased by

kshs. 800

for every one hundred shares to be paid before balloting. That one was required to have a clearance certificate before balloting. That in the year

2003,

the clearance certificates were submitted to the lands office for the Commissioner of Lands to sign the transfer.

It was his testimony that

Mary

has never been their member. That when he took over in

2009,

the previous officials refused to hand over the Register and documents to him and only handed over when he filed a case. That they found all the documents were intact. That he had the proper register which has always been in their office. That residential plots were allocated in

1972 and 1973

. He further testified that it was mandatory for one to have 40 shares in order to get residential plots. That the Plaintiffs are still shareholders and genuine owners of

3857

and the ballot is

2316

.

DEFENCE CASE

DW1 Elijah Ngugi Njoroge

adopted his witness statement dated

12

th

March 2014

. He produced his list of documents dated

12

th

March 2014

as Exhibit 1 to 9. It was his testimony that he bought the land in

2008

from

Mary

. That he conducted a search and confirmed that she owned the land. That the purchase price was

Kshs. 150,000/=

and a title deed was issued in

2003.

He denied that her title was ever cancelled by

Githunguri Ranching.

He further testified that his name could not be on the register because he was not a member. It was his evidence that he got a consent on

6

th

January 200,

and together with the original title and a transfer form duly executed, the land was transferred to him and he validly got ownership. He testified that he had availed all documents in support of his case. That a caution was placed on the suit property in

2013,

when he wanted to subdivide the land. That he visited the land before he bought it and it was not occupied.

That he knew

Mary

was a shareholder at

Githunguri Ranching

Company Limited

at the time of purchase. That every shareholder at Githunguri must have a share certificate as he confirmed from the Company that Mary was a member and she was member

No. 3857.

That he found

James Kamau Njoroge, Francis Kairinja Njoroge

and

Francis

was a Director from

2003 to 2009

. That as per the sale agreement, he was buying Land

No. 3857

as per the order under Githunguri Ranching. That Mary died in

2013.

That he had been sued together with

Francis Kairianja

in another case for using fraudulent documents to register a title, and that

Francis

was a Company Secretary at Githunguri Ranching Company Limited. That he did not know which plot

Mary

had balloted for and it was not necessary as Mary already had a title.

DW2 Francis Kairianja Njoroge

adopted his witness statement as his evidence . It was his testimony that he was a Director at Githunguri Ranching Company Limited and he was also the Company Secretary. That he gave a certified register of members to

Elijah

. He denied that the original Copy of the register presented by PW2 was the one they were using as the register got lost. That the writings and entries are different from the one he had given Elijah as the one he gave Elijah was the authentic one. He further denied that there was any handing over to the new officials when he left in

2009

. Further that

James Maina

who was the then Chairman could not have given the register to the incoming official as he was blind.

That members were required to have

100

shares and would get 3 portions . That 40 shares were not enough for one to get the 3 portions of land. That he was authorised to sign documents for the Company. Further that though he had been sued in many suits, he has never been convicted of any.

He testified that he was not authorised to make a new register. That the register he gave did not have a date as it normally did not show the date it was made. That the then Chairman was

James Kamau

who was blind and could sign documents but could not write. That he was present when the Chairman signed the documents. That the Company’s records were in his custody but he did not know where they were. That he saw

Mary’s

Share Certificate but he did not see her clearance certificate as it was given to her before he was a Director.

The parties filed written submissions and thereafter the trial Magistrate delivered his determination on

22

nd

January 2019

and allowed the Plaintiffs (Respondents) claim and entered Judgment for the Plaintiffs (Respondents) and held that;

“ Be as it may without any documents indicating that Mary Kiarie was a member at the 2

nd

Defendant Company. It can only be logically concluded that the title that she acquired over the suit parcel herein was acquire by fraud. The 1

st

Plaintiff has shown that the 2d Plaintiff from whom he bought the suit land herein is in possession of all documents that would prove membership to the 2

nd

Defendant Company. I find the 1

st

Plaintiff to have proved that he is the rightful owner of the suit land . I consequently allow the suit in terms of prayers No (a) , (b), (c) n d(d) of the further amended Plaint filed in Court on 29

th

October 2018. The Interest on costs shall run from the date of this Judgment. I also dismiss the Counter Claim of the 1

st

Defendant with costs.

The Appellant was aggrieved by the decision and by a Memorandum of Appeal dated

30

th

January 2019

he sought for orders that;

a. That the Appeal be allowed.

b. That Judgment and Consequential orders made by

Hon.M.W Wanjala

Resident Magistrate Thika, dated

2

nd

January, 2019

be set aside.

c. That the costs of this Appeal be borne by the Respondents.

The Appeal is based on the grounds that;

1. That the Learned Magistrate misdirected himself in law and in fact in allowing Irene Wamuyu Gacheru to testify on allegation that the 1

st

plaintiff in Civil Suit No. 720 of 2013 Thika had passed on and without the Plaint ever having been amended nor proper substitution having been done.

2. That the learned Magistrate misdirected himself in Law and in fact in allowing Irene Wamuyu Gacheru to present the written statement of the alleged deceased, the 1

st

Plaintiff in Civil Suit No. 720 of 2013 without the said Irene wamuyu ever recording her own statement and serving the same on the Appellant, nor the statement of the deceased Josephat Gacheru Mwangi being changed.

3. That the Learned Magistrate misdirected himself in law and in fact in allowing the statement of the 2

nd

Plaintiff in Suit No. 720 of 2013 in the absence of the 2

nd

Plaintiff hence denying the Appellant a chance to cross examine the said witness PW2.

4. the Learned Magistrate erred in law and in fact in failing to take into account the documents submitted by the Appellant in this matter.

5. The Learned Magistrate erred in fact and in law in allowing documents filed by the Respondents who were said to be deceased or absent in Court at the time of hearing hence denying the Appellant a chance to cross examine and probe the documents for the Respondents.

6. That the learned Magistrate erred in law and in fact in completely disregarding the evidence tendered by the Appellant and all witnesses and more so failed to consider the Appellant had purchased the suit property when the same was titled from Mary Kiarie a former shareholder of Githunguri Constituency Ranching Company Limited.

7. That the learned Magistrate erred in law and in fact in holding that the sale agreement presented by the Appellant was not signed, that his filed documents contained inconsistencies and that the transfer documents giving title to the Appellant were not lodged at the Lands Registry amongst others.

8. That the Learned Magistrate erred in law and in fact in holding that property number Ruiru/Kiu Block 2/3857 belongs to the 1

st

Plaintiff , the said deceased.

9. That the Learned Magistrate erred law and in fact in dismissing the Counter Claim filed by the Appellant in its totality.

1

0. That the Learned Magistrate erred in law and in fact in refusing to accept the witness statement and testimony of the Appellant which were crucial for the determination of this case.

11. That the Learned Magistrate erred in law and in fact in conducting suit No. 720 of 2013 Thika past the official hours as the Court set up to 9.30 p.m

The Appeal was canvased by way of written submissions and the Appellant through the

Law Firm of Njonjo Okello & Associates Advocates

filed his written submissions dated

9

th

June 2020,

and submitted that this Court being the first Appeal Court is required to re-asses the entire evidence tendered at the trial Court and make its own independent findings. It was submitted that

Irene Wamuyu Gacheru

was allowed to testify without formally presenting her own statement and fully relying on the statement of the deceased person. That there was no way she could have been cross examined on a statement that was filed by a different person and the same led to an injustice. Further that the 2

nd

Respondent’s statement was admitted in his absences and the Appellant never got a chance to cross examine him on the veracity of his statement. Further had the 2

nd

Respondent attended Court for cross examination, a different conclusion would have been arrived at.

That all the documents produced were produced unprocedurally and the Appellant did not have a chance to cross examine on them and had he been allowed to cross examine on these documents if they had been produced properly, the Court would not have reached the conclusion it reached and the Appeal ought to be allowed. He relied on the case of

Patrick Sosiso Lekakenya …Vs…Tomito Alex and 3 others High Court Civil Appeal No. 1 of 2008

.

The Respondents filed their written submissions through the

Law Firm of

Kanyi Kiruchi & Co Advocates

dated

8

th

June 2020

and submitted that the Appellant has premised his Appeal on mere technicalities and not substance of the Judgment . It was submitted that the 1

st

Respondent was properly appointed as the legal representative of the Estate of

Josephat Gacheru Mwangi

and had the necessary

locus standi

to be legally susbtitited in the suit . Further that the Plaint was amended as evidenced by the Plaint filed on

29

th

October 2018

. It was further submitted that the Appellant did not raise any objection to the adoption of the statement of the 2

nd

Respondent without calling the maker and had consented to the same through his Advocate on record and therefore waived his rights to have the 2

nd

Respondent cross examined.

That the Appellant had an opportunity to cross examine the legal representative of

Josephat Gacheru

and he failed to establish the origin of his documents. That the Court rightly noted that the Title Deed issued to

Mary kiarie

was tainted with fraud.

It was the Respondents submission that the 1

st

Respondent was at liberty to testify on behalf of the Estate of her deceased husband . That it is an abuse of the Court process for the Appellant having not objected to the 1

st

Respondent adopting the

late Josephat

statement to turn around and allege that the trial Court misdirected itself.

That the issue of the 2

nd

Respondent’s adoption of his statement without him being called to Court was consented to by the Appellant . That the Respondents Advocate made an Application before Court under

section 35 of the Evidence Act

and the Appellant’s Advocate did not object to it. That if the Appellant was dissatisfied with the Court’s Ruling on the issue, he would have appealed. It was further submitted that the Appellant will not suffer any prejudice for not cross examining the 2

nd

Respondent.

Further that the Appellant was mistaken in submitting that the Court failed to take into account its documents and the evidence as the Magistrate in his judgment indicated that he had taken them into account and it was only after all the considerations that the trail Court arrived at a well-reasoned Judgment. That while investigating the root of the Appellant’s title, there were glaring questions that remained unanswered as were are no records showing that the alleged

Mary Kiarie

was ever a shareholder at

Githunguri Constituency Ranching

Company, the sale garment was never signed, the transfer documents alleging transfer were never lodged at the Lands’ Register and the photograph on the transfer are charred. That on the other hand, the Respondent’s acquisition of the land remain unbroken as produced documentations to prove the same. That the matter was heard during service week at the Thika Law Courts in a bid to see that suits were timely handled, Judicial Officers had to put in long hours that saw a number of cases adjudicated on past Court hours.

Having summarised the pleadings and evidence before the trial court, having captured the grounds of Appeal and submissions by the parties herein the Court finds that as a first Appeal, Court it is called to make a determination herein by analysing the whole evidence, evaluating, assessing , weighing , investigating and scrutinizing it and give it its own independent conclusion.

The Court acknowledges that it neither saw nor heard the witnesses and it give allowance for that. The Court will also give due deference to the trial Court’s findings unless it falls foul of proper evaluation of the evidence on record and that the trial Magistrate acted on a wrong principle in arriving at the findings. See the case of

Selle …Vs… Associated Mobi Boat Co (1968) EA 123

:-

An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (

Abdul Hameed Saif vs. Ali Mohamed Sholan

(1955), 22 E. A. C. A. 270).

Further the court will only interfere with the decision of the trial court only where it is shown that the trial court misapprehended the applicable law and failed to take into account the relevant facts or took into account an irrelevant fact or that on the facts and law as are known, the decision is plainly wrong. See case of

Ocean Freight Shipping Company Ltd –vs- Oakdale Commodities Ltd, Civil Appeal No. 198 of 1995

):-where the Court held that;

“…..and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong.”

The Court finds the issues for determination are:-

1. Whether the Appellant is Justified in Objecting to issues he did not object to in the Lower Court.

2. Whether the Appeal is merited.

3. Who should bear the costs of the suit.

1. Whether the Appellant is Justified in Objecting to issues he did not object to in the Lower Court

Having carefully gone through the Memorandum of Appeal and the Appellant’s written submissions, the Court notes that the Appellant has raised various issue including the fact that the said

Irene Wamuyu

was allowed to testify without the Plaint not having been properly amended. Further that the trail court misdirected itself in allowing the said Irene to present the written statement of the alleged deceased. Further the trail Court allowed the 2

nd

Respondent’s statement to be adopted in his absence.

First of all the Court has seen the Further Amended Plaint dated

29

th

October 2018

in which the deceased was substituted with his legal Representative. If the Appellant was not satisfied with the manner in which the substitution was done, he ought to have raise the issue with the trial Court so that the same could be adjudicated upon. Further the Court having gone through the lower Court’s proceedings notes that on

16

th

March 2018

, when the matter come up for hearing, the Respondents Advocate indicated that the 1

st

Plaintiff was deceased and he was seeking substitution. That on

2

nd

October 2018

, the said Application for substitution was unopposed and it was allowed. The Appellant’s Advocate was present.

Further on

22

nd

November 2018,

when the matter came up for hearing, the Respondents’ Advocate sought to have the 2

nd

Respondent’s statement admitted and once again

Mr. Muthomi

Advocate for the Appellant had no objection. The Court then allowed the admission of the statement. Therefore, the Court finds and holds that the Appellant is estopped from raising issues he did not object to in the trial Court. See the case of

Mourine Mukonyo …Vs… Embu Water and Sanitation Company [2020] eKLR

where the Court held that;

“It is on record that the parties herein consented to proceed by way of pleadings and statements filed by them in support of their cases.

13. The appellant further raised the issue that the trial magistrate erred in law and fact and gravely misdirected himself by ordering that the suit be disposed of by way of written submissions. However, the records are clear to the effect that the parties' advocates recorded a very clear consent on 13

th

March, 2018 that the matter disposed in that manner. I am of the opinion that the appellant is legally bound by all the actions of her advocates on the mode of hearing before the trial court so long as the advocates were on record as acting for her at that material time.. The record is clear that one Mr. Njage was on record for the appellant on 13/08/2017 when a consent on directions was recorded while Ms. Muriuki was for the respondent. The consent was dictated upon the court and confirmed by both counsels. Both parties to the consent are therefore bound by the said consent.

14. It is trite law that he who alleges must prove.

Section 107 of the Evidence Act

provides that: -

"Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."

15. It is thus trite that in civil cases, a party who wishes the court to give a judgment or to declare any legal right dependent on a particular fact or sets of facts, that party has a legal obligation to provide evidence that will best facilitate the proof of the existence of those facts. The party must present to the court all the evidence reasonably available on a litigated factual issue. Section 109 and 112 of the Evidence Act provides for the evidential burden of proof. The two provisions were dealt with in

Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334,

in which the Court of Appeal held that: -

”As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.””

16. It follows that the initial burden of proof lies on the plaintiff, now the respondent in this appeal to prove his case on the balance of probabilities.

17. In the instant case, the respondent, in support of its case, filed a list of documents and witness statement by Catherine Mukami and David Kaburi. Amongst the list of documents were photographs taken on the site when the illegal connection was detected, minutes of the technical meeting held on 12/02/2016 and wherein she admitted to the liability and offered to pay the assessed damages. The appellant did not object to the production of the said documents and witness’ statements during the trial. The appellant must be estopped to bring the issue on appeal. The trial court relying on the said documents found that the respondent proved its case that the appellant had made an illegal water connection.

Consequently, the Court finds and holds that the Appellant is not justified in Objecting to issues he did not object to in the Lower Court. Further that such actions are an abuse of the Court process.

2. Whether the Appeal is merited

The Appellant has also raised other issues to justify his Appeal. It was his contention that the learned Magistrate erred in falling to take into account the documents he submitted and disregarding the evidence he tendered.. Further that the Magistrate erred in finding that the suit property belonged to the 1

st

Respondent.

The Court has carefully perused the Judgment delivered by

Hon.

M.W

Wanjala,

dated

22

nd

January 2019.

The Court finds that the trial Court noted that;

“

In order to arrive at a decision as to who owns the suit land herein. I have to carefully scrutinize the documents produced by both parties in this case

.

That he had earlier in his Judgment stated that;

“I have perused through the entire testimonies of the witnesses, their recorded statements and documents that were produced as Exhibits.

The Court finds and holds that there is no justification upon which the Appellant has based his allegations.

On whether the learned Magistrate erred in finding that the suit property belonged to the 1

st

Respondent., it is not in doubt that both the 1

st

Respondent and the Appellant were laying a claim to the suit property. Further it is not in doubt that the appellant is the registered owner of the said suit property. The Respondents having challenged his proprietorship, it was then upon the Appellant to show the root of his title. See the case of

Munyu Maina..Vs..Hiram Gathiha Maina, Civil Appeal No.239 of 2009

,

where the Court of Appeal held that:-

“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

This Court will therefor determine who between the Appellant and the Respondent showed their root of title to be able to determine whether the Appellant is merited.

It is the Appellant’ case that he bought the suit property from one

Mary Kiarie.

It was his evidence that the said

Mary Kiarie

was a member of

Githunguri Ranching Company Limited

. That he bought the suit property from her after she had obtained a title deed and therefore did not need to be a member of the Company. It is not in doubt that

Githunguri Constituency Ranching Company

was the initial allotee of the suit property. PW2 and DW2 testified that for one to be a member, one needed to be a shareholder and therefore all members had clearance certificates. Further that the person needed to have balloted for the land and required to have a ballot card. To give evidence that the person was a member the person needed to have his/her name in the register of members.

From the documents produced in the trial Court, the appellant did not produce any evidence that the said

Mary Kiarie

was a member of

Githunguri Constituency Ranching Company

. It is evident that for a party to be issued with a title deed, then the party must present before the Lands Registry clearance from the Company and transfer forms. If indeed these documents existed, it is the Court’ considered view that the Appellant had the onus of providing the same by procuring them from the Lands Registry, to show the root of his title. This was never done.

Therefore, the Court finds and holds that having been unable to show the root of his title, then if follows that the title that the Appellants holds can be impeached. See the case of

Daudi Kiptugen

…Vs…

Commissioner of Lands & 4 Others [2015] eKLR

where the Court held that:

“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein

.”

On the other hand, the 1

st

Respondent laid a claim to the suit property. It was her contention that her late husband bought the suit property from the 2

nd

Respondent, a sale which was acknowledged by the 2

nd

Respondent. PW2 who is the Chairman of the Githunguri

Constituency Ranching Company

produced as exhibit and evidence a Register that shows that the 2

nd

Respondent was a member of the

Githunguri Ranching Company

. Further the Respondents produced in evidence a share certificate with the name of the 1

st

Respondent indicating that

Jospha

t was issued with a share Certificate for the suit property. They further produced a clearance certificate showing that the said

Josphat

was the registered owner of the suit property .A share certificate was also produced evidencing that the 2

nd

Respondent had a share certificate over the suit property and that he had paid for the same.

The Court has also seen the sale agreement in which the 2

nd

Respondent sold the suit property to the 1

st

Respondent. This Court finds and holds that the 1

st

Respondent was able to show the root of his title.

Having held and found that the Appellant failed to show the root of his and title and the 1

st

Respondent was able to properly show the root of his title, the Court finds and holds that the learned trial Magistrate was correct in his findings that the 1

st

Respondent was the legal owner of the suit property and consequently allowing the Plaintiff’s claim as contained in the Plaint and dismissing the Counter claim.

Therefore, this Court finds and holds that the instant Appeal is

not

merited.

3. Who should bear the costs of the suit

Section 27 of the Civil Procedure Act

gives the Court discretion to grant costs. It is trite that Costs ordinarily follow the events. The Respondents herein are the successful parties and they are therefore entitled to the Costs of the Appeal .

Having now carefully considered the available evidence, as tendered at the lower Court, having evaluated the same and coming to its own independent conclusion, this Court finds and holds that the trial Magistrate did

not

err

nor misapprehended the facts, Law and evidence on record.

Consequently, the court finds that the instant Appeal is

not

merited and the same is dismissed entirely with costs to the Respondents. Judgement accordingly.

Dated, signed

and

Delivered

at

Thika

this

17

th

day of

December 2020

L. GACHERU

JUDGE

17/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Appellant –

Date taken in the presence of Appellant

Advocate

No appearance for the 1

st

Respondent

No appearance for 2

nd

Respondent

L. GACHERU

JUDGE

17/12/2020