BENJAMIN KINYANZUI KITOLO & ANOTHER V BONIFACE MUIYA KIMATHI [2013] KEHC 2745 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Milimani Law Courts)

Civil Case 434 of 1984 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]

BENJAMIN KINYANZUI KITOLO

HENRY KASYIMI KITOLO

as the legal representatives

KITOLO NYANGE (DECEASED)………………PLAINTIFFS/APPLICANT

VERSUS

BONIFACE MUIYA KIMATHI

as the legal representative of

KIMITHI NYANGE (DECEASED)………..….DEFENDANT/RESPONDENT

RULING

The Plaintiffs filed a Notice of Motion filed on 25th February 2011 brought under section 3A of the Civil Procedure Act, Order 51 Rule 1 and 4 of the Civil Procedure Rules, sections 142(1) and (2) and 143(1) and (2) of the Registered Land Act and all other enabling provisions of the law. The application is supported by an affidavit sworn on 23rd February 2011 by V. E. Muguku, the Plaintiffs’ counsel. The Plaintiffs are seeking the following orders:-

1. That the Masii District Land Registrar be ordered to rectify the register for the titles listed hereunder as ordered by Hon. Justice G.S. Pall in this case on the 6th day of July, 1998 and the decree issued on 29th September 1999:-

i.Masii/Utithini/356/Boniface Muia Kimithi as legal representative of Kimithi Nyange 4. 4. ha.

ii.Masii/Utithini/17/Boniface Muia Kimithi as Legal representative of Kimithi Nyange 1. 5ha.

iii.Masii/Utithini/275/Bonaface Muia Kimithi as legal representative of Kimithi Nyange 0. 6ha.

iv.Masii/Utithini/11/Boniface Muia Kimithi as legal representative of Kimithi Nyange 1. 6ha. part.

v.Masii/Utithini/547/Benjamin Kinyanzwii Kitolo and Henry Kasyimi Kitolo as Legal representatives of Kitolo Nyange Estate 1. 4.

vi.Masii/Utithini/462/Benjamin Kinyanzwi Kitolo and Henry Kasyimi Kitolo as legal representatives of Kitolo Nyange Estate 0. 7.

vii.Masii/Utithini/32/Benjamin Kinyanzwi Kitolo and Henry Kasyimi Kitolo as Legal representatives of Kitolo Nyange Estate 2. 2.

viii.Masii/Utithini/11/Benjamin Kinyanzwi Kitolo and Henry Kasyimi Kitolo as Legal representatives of Kitolo Nyange Estate 2. 2ha. (part).

2. That the beneficiaries do meet the subdivision and transfer costs in the proportion of the share taken.

3. That should either party decline to execute mutation and transfer forms the deputy Registrar of this Honourable Court be empowered to execute the same.

The application is premised on grounds that judgment in this suit was delivered on 6th July, 1998 and a decree issued on 29th September, 1999. Further, that the appeal preferred against the judgment in Civil Appeal No. 9 of 2001 was withdrawn on 5th February, 2009. It was further stated that the original Plaintiff Kitolo Nyange died on 28th February, 2009 and the Applicants were issued with the grant of letters of administration for the deceased Kitolo Nyange in HCP &A Cause No. 1656 of 2009 on 10th February, 2010 and substituted as Plaintiffs on 8th February, 2011.

The supporting affidavit of V.E Muguku reiterates the grounds in support of the application and further depones that the parcel of lands that are the subject matter of this suit were adjudicated in terms of allocation by the clan, and that since Wambua Nyange and other members of his family declined to inherit their share, the same be shared equally by the Plaintiff and the Defendant. Further, that the alternative mode of distribution of the estate by subdividing all the six parcels of parcels is too expensive for the parties, and that it will delay the execution of the judgment herein even further. It is also contended that some of the parcels are too small and they shall be uneconomical to farm if they are divided into two, and that the orders sought are necessary in order to effect the judgment and decree in this suit.

The application was opposed and the Defendant filed a replying affidavit dated 5th May 2011. The Defendant deponed that the Plaintiffs’ Advocate is not competent to swear the affidavit in support of the application, that the application is defective, and that the orders sought cannot be granted. The Defendant contended that the parties in the suit who are from the same family are trying an out of court settlement and should be given more time. He further contended that land that is not part of the judgment has been included in the proposed sub-division, and that the Plaintiffs have not annexed the title deeds of the parcels of land sought in their application. Lastly, the Defendant stated that the Plaintiffs’ advocate did not consult with his Advocate for a joint proposal, and that it is necessary that both parties do meet to agree on the way forward in the suit. The Defendant prayed for dismissal of the application and that the right legal procedure be followed.

In light of the Defendant’s averments I delivered a ruling on 6th November 2o12 wherein I gave the parties an opportunity to try and settle the matter out of court, and record a settlement with the court. However, after various attempts the parties submitted at a mention on 2nd May 2013 that the negotiations had not borne fruit and sought a final and substantive ruling on the Plaintiffs’ application herein.

The parties canvassed the Plaintiff’s application by way of written submissions. The Plaintiff in submissions dated 25th May 2012 gave a background and summary of the Plaintiff’s suit and judgement given herein by Pall J. (as he then was), and submitted that taking into consideration that Wambua Nyange and his family members had withdrawn their claim to the family land, it should be shared according to the clan’s recommendations as follows:

a)The Defendant Kimithi Nyange to be given land parcel numbers 356, 17, 275 and half of Wambua’s entitlement to parcel no 11, a total of 8. 1 hectares

b)The Plaintiff Kitolo Nyange be given parcel numbers 547, 462, 32 and half of Wambua’s entitlement in parcel No.11,a total of 6. 5 hectares.

The Plaintiffs’ counsel justified this proposal by stating that it suited the circumstances of the case and minimised the costs of subdivision of the parcels into three portions. He also submitted that the orders of the Pall J. that the Plaintiff has an undivided one third share of all the rest of the six properties did not take into consideration that Wambua Nyange had withdrawn his claim, and only two parties were to share the land parcels.

The Defendant’s counsel in submissions filed in court dated 24th September 2012 argued that the application had been brought under the wrong procedure, and that the orders sought cannot be granted. Further, that sections 142 and 143 of the Registered Land Act (since repealed) only dealt with rectification by the Registrar of instruments in specified circumstances, and by the Court where registration has been obtained by fraud or mistake. The Defendant also submitted that the Plaintiff is attempting to execute a judgment and the procedures under Order 22 of the Civil Procedure Rules must be followed.

The issue before the court is whether it can order the Registrar of Masii Land Register to rectify the register of the titles specified in the Plaintiff’s Notice of Motion. It is true that the Plaintiff has brought this application under section 142 and 143 of the Registered Land Act (since repealed). Similar provisions are now provided for under sections 79 and 80 of the Land Registration Act of 2012. Given that judgment has already been given in the suit herein on6th July, 1998, this court can only make such an order if rectification was ordered in the said judgment or is a necessary and consequential action for the judgment to be effected. If none of these circumstances apply then this court cannot give any such orders as it will be sitting on appeal of a judgment of a court of similar jurisdiction.

The question therefore is whether rectification was ordered or is a consequential action of the judgment of Pall J. (as he then was) delivered on 6th July 1998 and decree issued on 29th September 1998. The material part of the said judgment and decree stated as follows:

a)That the Plaintiff has undivided one third share in all the rest of the six properties registered in the name of the Defendant except plot 356

b)That unless the Defendant is agreeable and transfers the parcels of the land to the Plaintiff in accordance with the recommendations of the clan committee, the six parcels of land be subdivided and the Defendant transfers the Plaintiff’s share carried out of the sub-division to him.

c)That the cost of the subdivision be born two thirds by the Defendant and one third by the Plaintiff

d)That both parties have liberty to apply.

It is apparent that the Defendant has declined to transfer the parcels of land to the Plaintiffs on the terms requested, and in any event the Plaintiffs’ proposals differ from the clan’s recommendations which were that they be given land parcels number 547, 462 and 32, as stated in the judgment by Pall J. The orders of the court were that in this event there be a sub-division of the six plots that were the subject of the judgment, and the Plaintiff to be transferred a one-third share of each of the plots. There was no order to rectify the existing registers, and rectification is not a consequential action to the orders given by the court as it is clear that the processes of sub-division and/or transfer must be undertaken. In addition, the liberty to apply order as a supplemental order is meant to aid in carrying out the judgment, not to change it.

This court cannot therefore grant the orders requested by the Plaintiff in the absence of the consent of the Defendant, as they will have the effect of varying or changing the orders given in the judgment by Pall J. If the Plaintiffs desire such a change then their only option is to appeal the said judgment.

The Plaintiffs’Notice of Motion filed on 25th February 2011 is accordingly disallowed for the foregoing reasons, and the Plaintiffs shall bear the costs of the said application.

Dated, signed and delivered in open court at Nairobi this ___4th___ day of ____June ____, 2013.

P. NYAMWEYA

JUDGE

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