Benjamin Mwanzia Wambua (suing as legal representative to the estate of Mukui Wambua Maingi) v Stephen Kimeu Kimanga [2018] KEELC 2139 (KLR)

REPUBLIC OF  KENYA

IN THE ENVIRONMENT AND LAND  COURT

AT MAKUENI

ELC  NO. 84 OF  2017

BENJAMIN MWANZIA WAMBUA

(suing as legal representative  to the estate of

Mukui  Wambua  Maingi)...........................PLAINTIFF

VERSUS

STEPHEN  KIMEU KIMANGA............DEFENDANT

JUDGEMENT

1) The plaintiff is a Pastor with Good News Church of Africa (GNCA) and   he hails  from Ngiluni in Kiteta.

2) By  his plaint dated 7th April, 2017 and filed in court on the 12th April, 2017 the plaintiff prays for judgement against the defendant for :-

1. A declaration  that the defendant  holds ½  land No.  Kiteta/Ngiluni/1610 on trust  for the  plaintiff and all beneficiaries to the Estate of Mukui Wambua Maingi.

2. An order directed to the Land Registrar, Makueni County to cause land  parcel No. Kiteta/Ngiluni/1610 subdivided  and  ½ thereof  registered under the names of the plaintiff on trust of the other beneficiaries.

3. A perpetual order of injunction against the defendant by himself, his relatives or agents  from evicting or in any way interfering with the plaintiffs use and occupation of ½ portion of the land otherwise known as Kiteta/Nguluni/1610.

4. Costs and interest of the suit.

3) Essentially, this matter proceeded as undefended suit after the defendant failed to enter  appearance and to file his defence despite having been served with summons on the 16th May, 2017 as can be seen from the affidavit  of service sworn at Machakos  on the 8th June, 2017 and filed in court on the 27th June, 2017.

4) During  the hearing  which took place on the 29th January, 2018 the plaintiff adopted his statement that he recorded on the 12th April, 2017 as his  evidence. He told the court  that land parcel number Kiteta/Ngiluni/1610 measuring approximately 8. 63 hectares was initially owned by his grandfather who had two(2) sons.  According to him, the two were supposed to subdivide the suit land which he termed as family land in equal shares

5) The plaintiff added  that the  two sons of his grandfather were Ithau Nyeete and Maingi  Nyeete.  The plaintiff  pointed  out that  his father’s name was Maingi Nyeete while Ithau Nyeete had two sons by the  name of Mbuvi Mutie Ithau and Mwaniki Mutie Ithau.  He went on to say that Mbuvi  Mutie had 2 sons whose names were Votoi Mbuvi and Mutua Mbuvi.

6) According to the plaintiff, Votoi sold half of  their land without their consent  and that when Votoi passed on, one  Kimanga who had     bought the land from Votoi claimed  to have purchased the whole parcel of land.

7) The plaintiff went on to tell the court that his parent are deceased  and he produced a copy of limited grant dated 25th October, 2012 as PEX No. 1. The plaintiff added that the defendant thereafter  registered  the entire   parcel of  land in  his name while  there was appeal number  1778/96  that was still pending before  the minister.  The plaintiff produced a copy of the appeal as PEX No. 2.

8) It was also the plaintiff’s case that  there were   several  cases  pending  in court such  as L.47 of 1974 which was at Tawa Law Courts then known as Uani District Court  and  proceeded to produce a copy of the judgment    as PEX No.  3.  The  parties in the aforementioned  suit  were Samuel Votoi Versus Mutua  Mwaniki. He revealed that when Uani Court ruled in favour of Samuel Votoi, they  appealed in Machakos  Civil Appeal  number  56 of 1980 (PEX No.4).  He said that the outcome of the appeal was that the  suit land   was to be subdivided into two (2)  equal parts but this was not done. The plaintiff went on to say that the chief wrote to the defendant (PEX No. 5) to stop him from  developing the suitland.  He produced a second  letter dated 15th February, 1975(PEX No. 6) barring the defendant from purchasing the land.

9) It was the plaintiffs evidence that he and  others  filed objection proceedings before the Senior  Land Adjudication Officer Machakos on  2nd  March, 1984(PEX No.8).  The plaintiff further produced another letter dated 14th December, 2004 and demand letter as PEX  Nos. 7 and 9 respectively.

10) His prayer was that judgement be entered as per the plaint.  When the court prodded   the plaintiff to disclose the outcome of the appeal before the minister, he  said that it was held that they had no  power to deal with a registered land.

11) The plaintiff called Charles Mwania Mukuu (PW1) and Katuvali Muindi(PW2) as  his  witnesses.

12) Mukuu’s (PW1) in his evidence adopted a statement which he recorded on  the  19th September, 2017 as his evidence.  He told  the court that land parcel number Kiteta/Ngiluni.1610 is family land and that it was sold by Votoi Mbuvi without the consent of the rest of the family.  According to him, Votoi sold his share of the suit  land before he left for Shimba Hills.  He went  on  to say that the defendant  claimed to have purchased  the entire parcel of land which according to him was not true.

13) He said that the suit land ought to be  subdivided between the families of Maingi and Mutie Ithao.

14) Muindi’s (PW1) in his evidence  adopted his statement  that he recorded on the 13th September, 2017.  He  said that he does  not know the registration number of the suit land and that all what he knows is that    it was  owned by Mutie and Maingi. According to him, the suit land was sold by  Votoi Mbuvi but  clarified that the latter only sold his portion to Kimeu Kimanga the defendant herein.

15) The plaintiff’s counsel filed  her submissions dated 19th February, 2018. In her submissions the counsel submitted that the defendant knowingly bought a portion of the suit land without   the consent  of the plaintiff’s family members and caused it to be registered in his name, that  the   defendant  holds  the suit  property as a trustee and on behalf of the plaintiff  to the extent  of  a half the property and urged the court to find for the plaintiff and grant the prayers sought.

16) I have read the evidence  on record and the submissions filed.  In the  Civil Appeal Number  L  56 of 1980  where the appellant was one  Mukui Wambua  Mangi Vs Samuel Votoi and 2 others, the appeal was allowed and parties agreed to share the land between themselves.

17) The appeal does not identify the land in question but presumably the land in question is the one  that was eventually registered as Kiteta/Ngiluni/1610.

18) From the evidence of the plaintiff, the suit land was never subdivided  as per the consent order signed in civil appeal  number L 56 of 1980 as one Votoi appears to have sold the entire parcel of land  to the defendant herein.  According to the plaintiff, the defendant only purchased  half  of the suit  property.  The plaintiff further maintains that when Votoi passed on, the defendant   claimed to have bought the entire suit property which the plaintiff disputes.  There is no evidence  contrary to that of the plaintiff and his two witnesses.  In the case of  Jutetabi African Adventure Ltd and Another Vs Christopher Michael Lockiley [2017] eKLR, the Court of Appeal cited the case of Gichuki Vs Gichuki [1982] KLR  285 and Mbothu & 8 others Vs Waititu and 11 others [1986] KLR 171 and stated thus;

“ The  law never implies, the court never presumes, a trust , but in case of absolute necessity. The courts  will not imply a trust save in order to give effect to the intentions of the parties.  The intention of the parties to create a trust must be clearly determined before a trust is implied.”

19) In this case before me, the plaintiff states  that what  he is claiming is  the half that ought to have gone  to his father pursuant to the consent order recorded in civil appeal number  L 56 of 1980.  He further says that Votoi only sold  half of land parcel number Kiteta/Ngiluni 1610 to the defendant.

20) From the above, I am of the view that the circumstances of this case connote an implied trust in favour of the plaintiff. I hold that the plaintiff has  satisfied this court that he has a cause of action against the defendant.  I do, therefore, proceed to enter judgement for him and against the defendant  in terms of prayers  1,2, 3,and  4 of the plaint. It is so ordered.

Signed, dated and  delivered at Makueni on 4th  day of July, 2018.

MBOGO C.G,

JUDGE

In the  presence of

Mr.  Oleli holding  brief for  Mr. Kilonzo for the plaintiff

Plaintiff

Defendant `

Mr.  Kwemboi court clerk.

MBOGO C.G, JUDGE

4/7/2018