Case ID:182328

Joseph Osiemo Nyamweno v George Nganga Gikanga & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Suit 744 of 2017

Parties:

Joseph Osiemo Nyamweno v George Nganga Gikanga & Mwihoko Housing Company Limited

Date Delivered:

30 Sep 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Joseph Osiemo Nyamweno v George Nganga Gikanga & another [2021] eKLR

Court Division:

Environment and Land

County:

Kiambu

Case Outcome:

Defendant’s Counter Claim dismissed

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 SUIT NO.744 OF 2017

JOSEPH OSIEMO NYAMWENO...................................................PLAINTIFF

VERSUS

GEORGE NGANGA GIKANGA...........................................1

ST

DEFENDANT

MWIHOKO HOUSING COMPANY.LIMITED.................2

ND

DEFENDANT

JUDGEMENT

By a Plaint dated

18

th

September 2017,

the Plaintiff herein sought for Judgement against the Defendants jointly and severally for; -

a) An order of injunction restraining the Defendants herein whether by themselves, their agents, servants, employees, invitees and/or otherwise whosoever from entering, trespassing, constructing, offering for sale, selling, disposing of, charging, subdividing, dealing, alienating, managing, letting or otherwise, residing, remaining, interfering with the quiet possession and enjoyment over all that piece of land known as

Plot No. 20747

, Kahawa South of Ruiru.

b) An Order declaring that

Plot No. 20747,

Kahawa South of Ruiru belongs to the Plaintiff.

c) General damages and mesne profits.

d) Costs of this suit.

In his statement of claim, the Plaintiff stated that he is the owner of

Plot No.20747,

which he exchanged with the 1

st

Defendant with

Plot No. 20900,

Kahawa Kimbo

South of Ruiru. He further averred that he purchased

Plot No. 20900,

from one

Elizabeth Wambui Kimani,

on

31

st

October 2016,

for Kshs.

700,000/=

and Kshs

40,000/=

for transfer paid to the 2

nd

Defendant. That the certificate held by

Elizabeth Wambui Kimani,

was cancelled and he was issued with a new certificate in his name by the 2

nd

Defendant.

It was his contention that his

Plot No. 20900,

Kahawa Kimbo,

was neighboring the 1

st

Defendant’s parcel of land with a School and he (1

st

Defendant) approached him with an intention of purchasing it. That the 1

st

Defendant informed him that he had another parcel of land Plot

No.20747,

and would like to exchange/swap it with his parcel of land being Plot No.

20900,

and he agreed.

That the 1

st

Defendant was purchasing

Plot No.20747,

from one

Harrison Gachuka Kimanga,

who could make a direct transfer once the last purchase price was paid. That accompanied by the 1

st

Defendant and

Harrison Gachuka Kimanga

, they visited the 2

nd

Defendant offices to verify the correctness of Plot No.

20747

, and found out that the details were proper necessitating swapping of his Plot and the 1

st

Defendant’s Plot. That he surrendered his certificate of

Plot No. 20900,

and the same was

cancelled and the 1

st

Defendant was issued with a new certificate of

Plot

No. 20900,

bearing his name.

That on

25

th

August 2017

, the 1

st

Defendant in collusion with the 2

nd

Defendant hatched a Plot to defraud him of

Plot No.20747,

by informing him that

Plot No. 20900,

which he exchanged with the 1

st

Defendant

Plot No.20747,

is being claimed by somebody else and who had gone to Court and sued the 1

st

Defendant.

The suit is contested and the 1

st

Defendant filed a Defence and Counterclaim dated

1

st

February 2018

. He denied all the allegations made in the

Plaint

and contended in the Counterclaim that the exchange of Plot

747

and

900

between the Plaintiff and 1

st

Defendant was

null

and

void

due to the reason that the Plaintiff misrepresented the ownership of

Plot No. 20900,

to the 1

st

Defendant and lack of transferable rights in

Plot No. 20900,

negated the presence of a consideration in the contract of transfer between him and the Plaintiff.

The Plaintiff further filed a Reply to the Defence and Counterclaim dated

4

th

March 2020,

and reiterated the contents in his Plaint.

The matter proceeded by way of

viva voce

evidence on the

22

nd

October 2019

.

Plaintiff’s Case

PW1

-

Joseph Osiemo Nyamweno,

adopted his witness statement and his list of documents as part of his evidence and

testified that he is claiming the suit property because he purchased

Plot No. 20900,

from one

Elizabeth Wambui Kimani,

and was allowed to purchase the same after paying

Kshs.40,000/=

for the transfer, and he was issued with a receipt and the name of

Elizabeth

was cancelled.

He further testified that the 1

st

Defendant approached him so that they may exchange

Plot No.20747,

with

Plot No. 20900,

and Plaintiff No.

747,

was owned by

Harrison Gachuka Kimanga,

and they went to the offices of the 2

nd

Defendant and did a sale agreement. That

Harrison’s

certificate was cancelled and the Plaintiff became the owner of

Plot No.20747.

Further, that his

Plot No. 20900,

was cancelled and given to

George

. It was his further testimony that the said

George

told him that someone was claiming

Plot No. 20900

.

On Cross examination, he stated that he got

Plot No. 20900,

and exchanged it with George for expansion of his School. That he disputed the 1

st

Defendant’s Counterclaim and that he did not have any claim in

Plot No. 20900

. It was his further testimony that they checked and found everything was fine before the exchange of the Plots.

In re-examination, he testified that he gave

Plot No. 20900,

to George and he is now the owner of

Plot No.2074.

Pw 2

-

Elizabeth Wambui Kimani

adopted her witness statement recorded on

13

th

November 2017

, and further testified that

Plot No. 20900,

was for

Joyce Wambui Warui,

who wanted to sell it. That she confirmed that it belonged to

Joyce

after conducting a search at

Mwihoko Housing Company

. It was her testimony that she paid

Joyce Wambui

Kshs.

600,000

/= as purchase price and signed a sale agreement, which is before Court. It was her further testimony that she later sold the Plot to

Joseph

for

Kshs. 700,000/=.

On Cross examination, she testified that she knows

Plot No. 20900

, but knows nothing about

Plot No.20747,

and she was not present during the exchange of the said Plots. She further testified that she did not know

Mercy Wanjiru,

who had claimed

Plot No. 20900.

Defence Case

DW1 -

George Nganga Gikanga,

adopted his witness statement and his list of documents dated

1/2/2018,

as part of his evidence. He further testified that he runs a school known as

Tumaini Primary School

and he approached the Plaintiff for a proposal to swap his Plot with

Plot No.20747

. That

Plot No. 20900,

belonged to the Plaintiff, while

Plot No.20747

, belonged to Harrison and after swapping, the Plaintiff was

given Plot No.

20747

and he was given the certificate for

Plot No. 20900

.

It was his testimony that he received a demand letter that the Plot belonged to

Mercy Wanjiru.

That he was summoned to

Kimbo Police

Station

and he was told that he was sitting on someone’s land. He further contended that the chief wrote a letter requesting the 2

nd

Defendant to take him back to his original Plot and he got back to

Plot No.20747

. That he is not in possession of

Plot No.20747.

In Cross examination, he testified that the receipt paid for transfer reads the Plaintiff’s name and that

Plot No.20900,

as told by the Police belonged to

Mercy Wanjiru,

and there were no documents to that effect. However, he believed that the Plot belongs to

Mercy Wanjiru

. It was his further testimony that he exchanged the Plot with the Plaintiff, after he discovered that the Plot was for

Mercy Wanjiru,

and he did not go to the Company, but he went to the chief.

In Re-examination, he testified that the receipts for transfer are not there because the issue of transfer was not in dispute at the 2

nd

Defendant’s office. He further stated that he did not create the said

Mercy Wanjiru,

and that his testimony is in furtherance to his pleadings in Court.

The Court thereafter directed the parties to file written submissions and in line with the said directions, the Plaintiff through the

Law Firm of Moindi & Co. Advocates,

filed his written submissions on the

31

st

March 2021,

and urged the Court to grant him the orders sought. He submitted that the Counter-claim was filed to hoodwink the Court that their cancellation and taking over of

Plot No.20747,

was illegal.

The 1

st

Defendant through the

Law Firm of Njuguna Nganga & Co. Advocates,

filed his written submissions on the

24

th

June 2021

and submitted that the 1

st

Defendant has no possession of any property as things stand for the reason that the 3

rd

Party took up

Plot No.20747.

The 2

nd

Defendant although having been duly served, did not

Enter Appearance

nor file any pleadings in this matter and thus did not participate in the matter.

Having summarized the pleadings and evidence before the trial Court and the submissions in general the Court finds that the main issues for determination are;

a) Whether the Plaintiff is entitled to the orders sought in his Plaint.

b) Whether the 1

st

Defendant is entitled to the prayers in his counterclaim.

c) Who is to pay costs.

Whether the Plaintiff is entitled to the orders sought in his Plaint.

The Court will take that

Plot 747

and

Plot 900

represent

Plot No.20747

and

Plot No.20900,

respectively, as parties have submitted. Plaintiff claims to have purchased

Plot No. 20900,

from one

Elizabeth Wambui Kimani,

on

31

st

October 2016,

for

Kshs.700,000/=

and

Kshs 40,000/=

for transfer paid to the 2

nd

Defendant and that the certificate held by

Elizabeth Wambui Kimani,

was cancelled and he was issued with a new certificate in his name by the 2

nd

Defendant. Thereafter, he did swap the Plots with the 1

st

Defendant and certificate was issued in his name by the 2

nd

Defendant.

On the other hand, the 1

st

Defendant claims that the exchange of

Plot 747

and

900

, was

null

and

void

due to the reasons that the Plaintiff misrepresented the ownership of

Plot No. 20900

.

It is not in dispute that the 2

nd

Defendant issued ownership Certificate to both parties. It is also not in dispute that the parties swapped Plots. Further, this Court will rely on the pleadings filed and evidence adduced. It is trite law that parties are bound by their pleadings.

The Court of Appeal in the case of

Independent Electoral and Boundaries Commission & Ano…Vs… Stephen Mutinda Mule & 3 Others (2014) eKLR,

which cited with approval the decision of the Supreme Court of Nigeria in

Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002,

where Adereji, JSC expressed himself thus on the importance and place of pleadings: -

“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……

…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

The Court has seen the share certificate of

Plot No.20900,

which initially belonged to

Elizabeth Wambui Kimani,

sale agreement dated

31

st

October 2016,

and receipts for payment all in favor of the Plaintiff. Further, the Court has seen a sale agreement dated

18

th

January 2017

of

Harrison Gachuka Kimanga

selling

Plot No.20747,

to the Plaintiff and a share certificate to

Harrison Gachuka Kimanga

Additionally, a sale agreement of

Plot No.20900,

between the Plaintiff and the 1

st

Defendant and a share certificate have been presented to this Court.

Notably so,

Joyce Wambui Warui’s

sale agreement of

Plot No.20900,

to

Elizabeth Wambui Kimani,

then the resultant transfer to the Plaintiff has also been adduced as evidence. However, to be able to determine who is the legal owner of the suit property, that is

Plot No.20747

, it is the Court’s considered view that it should first determine who amongst the two parties was able to show the root of his/ her title. See the case of

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

,

where the Court of Appeal held as follows;-

“

We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the

registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and 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.”

Pw2

confirmed that she bought the suit property from

Joyce Wambui Warui

and later sold it to the Plaintiff. The 1

st

Defendant mentioned one

Mercy Wanjiru,

but never presented her as a witness or filed her Witness Statement.

It is the Court’s considered view that one

Mercy Wanjiru,

would have been a key witness for the Defence to explain how she acquired the property.

Dw1

testified that he had never seen any documents relating to

Mercy Wanjiru,

ownership of

Plot No.20747

.

As a party cannot pass a title which it does not have, it is the Court’s further considered view that the said

Mercy Wanjiru,

could not pass a good title to the 1

st

Defendant, since she did not have a good title herself. See the case of

Esther Ndegi Njiru & Another …Vs… Leonard Gatei (2014)eklr,

where the Court held that;

“

Having held and found that the 2

nd

Defendant fraudulently processed and acquired the title to the suit property in his name, my view is that he did not acquire a good title to the property and no interest in the property could pass. The 2

nd

Defendant therefore not having any good title or interest in the suit property could not pass a good title to the Plaintiffs.”

It is thus the Court’s considered view that the Plaintiff has been able to establish the root of his title and therefore, the Court finds and holds that the Plaintiff is the legal owner of the suit property known as

Plot No.20747.

Further the 1

st

Defendant is estopped from denying what he had already admitted in his Statement of Defence and Counterclaim in paragraph 5, which he strictly agrees with the contents of paragraph 10-16 of the Plaint.

The Plaintiff has also sought for

General damages,

for trespass and mesne profit.

Trespass

has been defined by

Clerk and Lindsel on torts, 18

th

edition at Pg 23

as; -

“an unjustifiable intrusion by one person upon the land in possession

.”

It is the Court’s considered view that considering the circumstances of this case, it cannot be said that the 1

st

Defendant was trespassing on the suit property as there was swapping and resultant registration as evidenced in the share certificates. The Court finds and holds that the said prayer of general damages is

not merited

. Mesne profits are special damages that must be specifically pleaded and proved. In this case, non was pleaded and therefore the Plaintiff is not entitled to the said prayer.

Whether the 1

st

Defendant is entitled to the prayers in his counterclaim.

The 1

st

Defendant has sought for reinstitution of the ownership of

Plot 747.

However, the Court has already held and found that he did not acquire a good title as the said

Mercy Wanjiru,

could not pass a good title as she herself did not have a good title. Therefore, the Court finds and holds that the 1

st

Defendant is not entitled to the orders sought in his Counter claim.

Who Should bear the costs of the suit

.

Section 27 of the Civil Procedure Act

gives the Court the discretion to grant costs. It is trite that costs usually follow the events and unless there are special circumstances to deny such costs. In this Case, it is the Court’s considered view that the Plaintiff is the successful party and he is thus entitled to the costs of the suit.

Having now carefully considered the pleadings, the available evidence as adduced by the parties herein and the written submissions, the Court finds and holds that the Plaintiff has proved his case on the required standard of balance of probabilities.

Consequently, the Court enters Judgment for the Plaintiff against the Defendants as pleaded in the Plaint dated

18

th

September 2017,

which claim is found

merited

. The Plaintiff’s claim is thus allowed in terms of

prayers No. a and b,

with costs to the Plaintiff.

However, the Defendant’s Counter Claim is

not merited

and the same is dismissed entirely with costs to the Plaintiff.

DATED, SIGNED AND DELIVERED AT THIKA THIS 30

TH

DAY OF SEPTEMBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Kuiyaki