Case ID:185887

Joseph M’mugambi v Isaiah Mbaabu & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 126 of 2019

Parties:

Joseph M’mugambi v Isaiah Mbaabu & Samson Miriti Mbaabu

Date Delivered:

17 Nov 2021

Case Class:

Civil

Court:

Environment and Land Court at Meru

Case Action:

Judgment

Judge(s):

Christopher Kyania Nzili

Citation:

Joseph M’mugambi v Isaiah Mbaabu & another [2021] eKLR

Case History:

Being an appeal from the Judgment of Hon. A.G. Munene (S.R.M.) delivered on 28TH December, 2018, in Maua CMCC. No. 34 OF 2012

Court Division:

Environment and Land

County:

Meru

History Docket No:

Cmcc 34 of 2012

History Magistrate:

Hon. A.G. Munene (S.R.M.)

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 MERU

ELCA CASE NO. 126 OF 2019

JOSEPH M’MUGAMBI .......................................... APPELLANT

VERSUS

ISAIAH MBAABU............................................ 1

ST

RESPONDENT

SAMSON MIRITI MBAABU ......................... 2

ND

RESPONDENT

JUDGMENT

(Being an appeal from the Judgment of Hon. A.G. Munene (S.R.M.) delivered on 28

TH

December, 2018, in

Maua CMCC. No. 34 OF 2012)

JUDGMENT

1. The appellant appeals against the judgment delivered on

28.12.2018

on grounds that, the trial court erred: in finding a prayer for injunction had been established contrary to known principles for grant of a permanent injunction; showed open bias against the appellant; finding the suit proved; failing to find the suit res judicata; usurping jurisdiction he did not have to rectify a title and order for a retransfer; finding the 2

nd

respondent erroneous contrary to law and lastly found the suit proved contrary to the law and adduced evidence.

2. This being 1

st

appeal the court under

Section 78

of the

Civil Procedure Act

is expected to rehear, reassess and re-appraise itself on the pleadings, evidence and the findings and come up with its own conclusions so as to ascertain whether or not the lower court reached a right decision while at the same time aware the lower court had the benefit of seeing the witnesses and their demeanor.

A.

PLEADINGS

3. Through a plaint dated

3.2.2012

the 2

nd

respondent sued the appellant and the 1

st

respondent alleging fraudulent sale and transfer of his ancestral land namely

Land Parcel No. Athiru/Gaiti/1251

. He sought for permanent injunction, rectification of the register and re-transfer of the land to himself.

4. The appellant denied the claim claiming he was lawfully sold the land by the 1

st

respondent (2

nd

defendant’s father) in 1996 to educate his son, denied the land was family land, alleged further the 1

st

respondent had seven other parcels of land to which the 1

st

respondent had directed the 2

nd

respondent and his family to move to and lastly pleaded res judicata on account of

Maua CMCC 52 of 1999.

5. The 1

st

respondent entered appearance through M/s Nyamokeri Ombachi advocates who eventually ceased representing him w.e.f 29.4.2015. Initially the firm of C.K. Riungu advocates entered appearance for the 1

st

respondent during which time the 1

st

respondent swore an affidavit on 2.3.2012. Eventually there was a change of advocates vide a notice dated 21.8.2012 by M/s Nyamokeri Ombachi & Co. Advocates.

6. Following directions to comply with

Order 11

, the 2

nd

respondent filed a list of documents dated 2.3.2015, the appellant filed case summary dated 16.7.2015, list of issues dated 10.7.2015 and 1

st

respondent statement dated 10.2.2015 which the 1

st

respondent eventually disowned in his testimony.

7. On the side of the 2

nd

respondent he filed issues for determination dated 2.3.2015 and witness statements filed on 6.12.2012. After M/s Nyamokeri & Ombachi Advocates respectively ceased representing the 1

st

respondent, the record is not clear if he filed any defence and or request was made for entry of judgment against him.

B.

EVIDENCE

8. The 2

nd

respondent testified as PW1, adopting his witness statement dated 6.2.2012 and produced a transfer, ruling in

Maua

CMCC 52 of 2019

and a bundle of receipts for the refund of purchase price to the appellant as exhibits P exh 1, 2 and 3. He prayed for the rectification of the register.

9. In

cross-examination,

PW1 insisted he was in school between 1994 – 1996, school fees was paid by the 1

st

respondent; denied the land was sold to educate him; admitted his mother was not a party to the suit; insisted the appellant had another land; claimed they have been on the land even in 1996 and insisted after the Maua court ruling for a refund, he paid the entire sum hence he was unaware of the alleged second transaction. It appears the 1

st

respondent was not present in court and did not cross-examine

PW1

.

10.

PW2

adopted witness statement dated 22.10.2004. In cross examination he insisted the 1

st

and 2

nd

respondent’s family had been on the suit land since 1970 in which the appellant was their neighbor though he resides in a different parcel of land. Lastly PW2 alleged the 1

st

respondent had bought the suit land from one George Akurungu.

11. DW1 (1

st

respondent) disowned his witness statement dated 10.2.2015 but admitted he had at one time sold land to the appellant for Kshs. 250,000/= though he could not recall the Parcel Number.; He admitted the appellant sued him for a refund in Maua Law Courts after his family objected to the sale. He confirmed a refund was of Kshs. 43,000/= paid to the appellant before Mr. Nyagaka advocate, settling the matter.

12. In

cross-examination

DW1 confirmed the appellant was refunded the money as directed by the Maua Court and in particular he told the court his son and daughter in law were the ones who cleared the debt.

13. In

cross-examination

by the appellant

DW1 admitted entering into an agreement but he could not recall before which advocate but later on refunded the money to the appellant after he sued him. He insisted he wanted the appellant evicted from the land after the sale was cancelled by the court. DW1 denied executing any transfer, as well as seeking money for a second transaction.

14. DW2 (appellant) adopted his statement dated

10.9.2012.

He stated DW1 sold the land to him for

Kshs. 30,000/=

in order to pay school fees for PW1.He admitted there was a civil case out of which money was paid in court, but was later refunded to him. He insisted upon refund DW1 resold parcel

No. 1215

to him for

Kshs. 43,895/=.

He told the court he utilizes the land though DW1’s mother had a house therein. He admitted the said wife was a party in the previous suit.

15. In

cross-examination

by the 2

nd

respondent, the appellant told the court the agreement did not disclose the reason for sale as school fees, alleged the agreement was witnessed by one Elijah Ndichu, and that there was a 2

nd

agreement upon refund. Lastly he alleged he had documents for the transfer but did not produce them.

16. Parties eventually put in written submissions dated 15.12.2018 and 19.11.2018.

17. In his submissions the 2

nd

respondent urged the court to be guided by

James Mathenge Munyiri –vs- District Land Registrar & 2Others [2018]

eKLR

on rectification of the title and retransfer. On the other hand the appellant submitted the sale and transfer was lawful; claimed he purchased the land on 10.3.1996 as per his exhibits hence the cause of action was time barred.

18. The appellant by submissions dated 17.8.2020 states the 2

nd

respondent did not discharge the burden of proof as required under

Sections 107, 108 & 109

of the

Evidence Act

on the issue of permanent injunction, maintains the suit was res judicata, the doctrine of estoppel was applicable and the suit was time barred. He relies on

John Florence Maritime

Services Ltd & Another –vs- Cabinet Secretary for Transport & Infrastructure and 3 Others [2015] eKLR, Kenya Commercial Bank Ltd –vs- Benjoh Amalgamated Ltd [2017] eKLR; E.T –vs- Attorney General & Omondi –vs- National Bank of Kenya Lt. & 2 Others [2001] eKLR 579.

19. On the other hand, the 2

nd

respondent through submissions dated 4.10.2021 submits the 1

st

respondent’s defence should be delinked from the applicant’s defence, fraud was proved as the 1

st

respondent denied the alleged re-sale and transfer in 2008, the appellant didn’t produce any transfer or land control board consent in his favour; urged the court to find the doctrine of res judicata was not applicable. He maintained

Section 80

of the Land Registration Act mandated the court to rectify a register and submitted there was no material or facts to establish bias on the part of the trial court. He relied on

James Mathenge Munyiri –vs- District Land Register & 2 Others [2018] eKLR and Joseph Gitari –vs- Muthui Chomba & 7 Others [2018] eKLR.

C.

ANALYSIS AND FINDING

20. It is trite law issues flow from pleadings. In the instant case, the respondents claim under paragraph 6 of the plaint was based on customary trust & fraud. They claimed the appellant was not an innocent purchaser for value without notice and stated they had been in occupation since 1970.

21. Upon service the appellant and the 1

st

respondent put in a joint defence. Critically looked,the appellant took cover under the 1

st

respondent and did not specifically deny or raise any issues against the specific allegations levelled against him by the 2

nd

respondent.

22. The appellant filed his witness statement on 13.8.2018 and a supplementary list of documents dated 10.8.2018. He later on produced D Exh 1- 4 among them an agreement dated 28.11.2018, sale agreement dated 16.3.1996, land proceedings dated 5.8.2001 and ruling made on 5.2.1999.

23. D exh 1 (sale agreement) falls short of the requirements of the Law of

Contract Act Cap 23 Laws of Kenya

. There are no witnesses to the agreement. The 1

st

respondent eventually disowned his witness statement and denied ever selling or transferring land to the appellant.

24. Secondly the

D Exh 1

confirms the refund of

Kshs. 43,595/=

out of the

Maua Civil Case No. 52 of 1999

. The appellant’s exhibits contradict all his oral testimony.

D Exh 2

talks of a sale in 1996.

D exh 2

was declared invalid and a refund made in Maua Law suit. The 1

st

respondent would have had no capacity to re-enter another agreement with the appellant to re-purchase the same land.

25. In any event and as I have said above,

D Exh 1

does not meet the test of law as it does not even define with specificity the land the appellant was re-purchasing. Similarly the appellant did not produce any transfer form, land control board consent forms, or minutes from the Land Control Board and a copy of the title deed to establish when and where the 1

st

respondent transferred the land to him. Similarly the appellants defence is silent on all these issues and which were crucial to his claim if any; over the land.

26. Consequently my findings are that grounds 1, 3, 5, 6 and 7 lack merit and hereby rejected.

27. Turning to the issue of res-judicata, whereas the appellant pleaded res judicata at paragraph 7 of the defence, he did not adduce any evidence to demonstrate it either as a preliminary issue or at the hearing. That notwithstanding, paragraph 5 of the plaintiff’s list of issues dated 2.3.2015 captured the issue. The appellant’s list of issues dated 10.7.2015 did not raise such an issue.

28. Be that as it may, during cross examination by the appellant, the 1

st

and 2

nd

respondents were categorical the case at Maua Law Courts was brought by the appellant against the 1

st

respondent and his wife for a refund of the purchase amount in 1996. Plaintiff’s exhibit 2 and 3 are clear the issues were for a refund and which was settled by the appellant accepting refund hence settling the matter

29. The appellant did not testify and produce pleadings and judgment showing the issues were similar, the subject matter was the same, the parties were the same and a competent court determined the same issues to finality; in terms of

Section 7

of the

Civil Procedure Act.

30. D Exh 1 contains a clause that Kshs. 43,395/= was out of the Maua Civil case. Further the appellant in his testimony stated the second agreement was after the Maua case was settled and that he returned the money to the 1

st

respondent to re-purchase the land. The appellant is therefore estopped in law from denying these elementary facts. My finding is also that the issues raised before the trial court had not been determined elsewhere.

31. Coming to the issue that the claim was time barred, the appellant did not plead the claim was statute barred. The 2

nd

respondent’s suit was based on fraud. Key elements of fraud are a false representation of a fact, with intention that the other party should act on it and the other party did act on it. In

Vojay Marjaria –s- Nausighn Madhusingh Darbar & Another [2000] eKLR

the court held fraud must be specifically pleaded and particulars must be given.

32. The 2

nd

respondent gave the date he discovered fraud as 2010 and moved to court in 2012 which is within the 12 years period. The appellant failed to produce the transfer forms or the title deed to show when he was registered as the owner of the land. D Exh 1 talks of a sale agreement of 2008. Obviously therefore he cannot purport to talk of 1996 yet the agreement of 1996 had been nullified by the court in the Maua suit. The appellant cannot turn around and allege the plaint herein is based on an agreement made in 1996.

33. Similarly once the 1

st

respondent took to the witness stand and denounced his earlier witness statement and incidentally the joint defence, he also denied there was a second agreement with appellant. This meant the defence by the appellant was left standing on quicksand and on very shaky grounds. The appellant did not produce any forensic evidence to back his assertions if any, that there was a valid agreement accompanied by transfer and control board forms authored and or executed by the 1

st

respondent.

34. Consequently the particulars of fraud in the plaint were confirmed true and stand proved as held in the Court of Appeal in

Gladys Wanjiru Ngacha –vs- Theresa Chepsaat & 4 Others [2013] eKLR and in Mutsonga –vs- Nyati [1984] KLR 435.

35. In his written submissions the appellant seeks the court to find that both his evidence and pleadings were ignored by the trial court. In

Kenya Pipeline Co. Ltd –vs- Glencore Energy (U.K.) Ltd [2015] eKLR

, the Court of Appeal held courts should not assist those who would breach, violate or defeat the law then turn to seek its aid.

36. In

David Siranga Ole Tukai –vs- Francis Arap Muge & 2 Others [2014] eKLR

,

the court held an illegal contract is contrary to public policy and should not be enforced and a court should not be made an instrument of enforcing obligations alleged to arise out of a transaction which is illegal.

37. The court in Maua Law Courts, invalidated the sale of 1996, and supervised the refund to the appellant. He now immediately turns back and wants the same court to validate a sale agreement which if enforced would make a court’s decree stale. The court cannot assist him defeat the law and make a mockery of its earlier orders.

38. As regards bias in

Galaxy Paints Co. Ltd. –vs- Falcon Guards Ltd. [1999] eKLR

it was held that allegations of bias must be based on cogent evidence perceived or otherwise

.

The trial court had not handled a similar matter. The court gave all the parties enough time to prepare and present their case. There was no application for recusal made by the appellant’s counsel on record. There is no evidence of partiality and or impropriety raised. The appellant does not say when it started and how it manifested itself. This ground of appeal lacks basis and is hereby rejected.

39. Due to the foregoing reasons, the appeal lacks merit. The same is dismissed with costs to the respondents.

DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 17

TH

DAY OF NOVEMBER, 2021

In presence of:

Kaberia Arimba for 2

nd

respondent

1

st

respondent in person absent

Court Assistant - Kananu

HON. C.K. NZILI

ELC JUDGE