Esther Syombua & Mary Nduku v Christopher Mbuvi [2018] KEELC 264 (KLR)

REPUBLIC OF  KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MAKUENI

ELC SUIT NO. 164 OF  2017

ESTHER SYOMBUA....................................................................1ST PLAINTIFF

MARY NDUKU.............................................................................2ND PLAINTIFF

VERSUS

CHRISTOPHER MBUVI..................................................................DEFENDANT

JUDGMENT

1) The Plaintiff   herein are sisters of the Defendant. They are all children of the late NgaathiKikumo who according to the averments  in paragraph 3 of their plaint dated 20th February, 2015 and filed in court on 11th March, 2015 was the owner  of plot numbers  141, 161  and  1858 situated in Kilome  Adjudication  Section.  The Plaintiffs  have pleaded  that the said  parcels of land numbers  141, 161 and 1858 comprised  ancestral land to which they as children of the  late NgaathiKikumo together with the Defendant, had equal rights to.

2) The  Plaintiffs have   further  pleaded  in paragraph 5  of   their plaint  that during the adjudication process, the Defendant  secretly and  fraudulently had  the  said  parcels of land registered  in his  name. The particulars of fraud have beenindicated in the plaint.

3) In  their plaint, the Plaintiffs  pray for judgment against the Defendant for;

a) A declaration that the Defendant holds the parcel number  141, 161 and 1858 in trust for the Plaintiffs.

b) An order directing that the parcels number 141, 161 and 1858 within Kilome Adjudication Section be shared  equally among the 2 Plaintiffs  and the  Defendant.

c) Costs  of the sit and interest thereon

d) Any such other or further relief  as this honourable court may deem fit  and just to grant.

4) Their  claim is  denied by the Defendant  vide his statement of defence  dated  31st  March, 2015 and filed  in court  on 14th April, 2015.

5) On the 5th  February, 2018, the  Plaintiffs field a reply to defence the same  being  dated  5th  February, 2018.

6) Hearing of the Plaintiffs’ and the Defendant’s case commenced on the  10th July, 2018.  In theirrespective evidence in chief, the  first Plaintiff  as well  as the defendant  adopted  their    statements filed in court as their  evidence.

7) The first Plaintiff in her evidence in chief told the court that she as well   as the second Plaintiff are sisters of the Defendant. That they  are all  and children  of the late NgaathiKikumo.  She said that   their father owned plot number 141, 161 and 1858 all located   within Kilome. According to her, the three parcels compressed ancestral land which the three of them as children of the late NgaathiKikumo had equal rightsto.That she and the second Plaintiff are single mothers who have never been married.  The first Plaintiff went on to say that in 1998.  Their fatherinvited Amuti clan as e wanted to give each of his children their own portions of land.  She produced the letterdated 2nd February, 1998 and its translation as PEX NO. 1. She also produced letters dated April, 2003 and 27th August 2003 as PEX No. 2 and 3 respectively.  She said that the clan visited their  home and divided  the land into  3 portions and proceeded  to plaint  sisal plants  along the boundaries but  the Defendant uprooted the said plants  leaving the Plaintiffs with only small portions  where they have built their  homes.

8) The first Plaintiff saidthat it is after theirfather died that she learnt that the Defendant had secretly and fraudulently caused himself to be listed as the sole owner of the three (3) parcels    during   the adjudication process.

9) She reiterated in her evidence in cross-examination that her father had directed that the land be subdivided into 3 equal parts.  She went on to say that she was not aware that in 1981, her father transferred parcels numbers 161, and 141 to the Defendant. She said that she was aware that the Defendant had  constructed houses on the suit land since 1981 and that he has been collecting rent ever since.  She also said that the Defendant has not planted any coffee on the suit land and maintained   that the land in questions belongs to her late father.  The first Plaintiff maintained that the Defendant holds the land  in trust for her and her sisters.

10)   The Plaintiffs called Joseph KyevaMumo  (PW1) who told the court that he knows parties  to this suit. He went onto  say that he is the chairman of Amuti clan, a position he  has held  since  1989. He said that in 1998, NgaathiKikumo who was one of their clan members wrote to the clan seeking  clan’s  assistance   in the subdivision of his land amongst his three (3) children.

11)   Mumo (PW1) said that the clan responded by going to  his land where they subdivided it into 3 portions and proceeded to plant  sisal plants along boundaries  of the three parcels. He said that he later learnt that the Defendant had taken most of the land for himself.

12)   Mumo’s (PW1) evidence in cross-examination was that he was not aware that two of the parcels had been allocated to the Defendant.  He said that he was not aware that the late Ngaathi had transferred parcels numbers 141 and 161 to the Defendant.

13)   He said that he was not aware if the  Defendant  had permission  to plant  coffee. He said that he was aware that the Plaintiffs had  declined to accept the portions of land that were given to them.  In his evidence in re-examination, Mumo (PW2) clarified that the  land  that the Plaintiffs declined to accept was given to them by  the  Defendant and were smaller than what  he got.

14)   The Defendant’s casewas that his late father NgaathiKikumo had his family land demarcated   in the  1973/74 where  he got two separate portions   namely 141 and 161 registered in his name.  That land number 161 was allocated to the two Plaintiffs as well as ZipporahMbuvi.   That the Defendant was allocated Plot number 141 and another portion set aside for all his daughters and denied that the land in question was divided into three portions as claimed  by the Plaintiffs.  That the book produced as DEX no. 2 was issued to him by the adjudication officer. It confirmed him as the new owner of plot number 141 and 161 which parcels of land he holds legally after they were transferred to him.  He said that   apart from apportioning   parcel number 141 to his daughters, his fatherdid not apportion any of his lands equally. It is also his case that he   has built houses from 1977 to  1980 on   a parcel of land that was excised  from land  parcel number 141.

15)   His evidence in  cross-examination was that land  parcel numbers  141 and 161 are in his name.  He said that he has  constructed in land parcel number  1858 which was excised from  land  parcel number 141.  He said that he had no document to show that his father subdivided  land parcel  number  161 to his sisters  and gave most of land parcel  141 to him. He  admitted  that the second  Plaintiff’s parcel of land measures 25 feet by 25 feet.  He said that the adjudication book (PEXno. 2) that  he  produced   was undated  and  that  his father  had  a book similar to DEX no. 2.

16)   By the time of writing  this  judgments, it is  only the Plaintiff’s  counsel  who  had filed her submissions. Her submissions were that the Plaintiff’s claim  is founded on two legal principles  namely customary trust  and the  right  to land for unmarried woman.

17)   Regarding the customary trust, the counsel  submitted that whereas the Plaintiffs allege that the Defendant fraudulently had the suit land registered in his name.The Defendant says that their  father  voluntary registered  the land  in his name. The counsel was of the view that even if the land was registered  in the  Defendant’s name upon the direction of their father  the  Defendant would  still be holding it in trust  for the  other beneficiaries land legally entitled  to the land.  The counsel  cited  the case Geoffrey MbuguaDedan& Another V Joseph  NgwegwaDedanGachumi& Another [2014] eKLRwhere  J.M Mutungi , J stated thus,

“in the case of  a voluntary transfer  as  in the  present case when the Defendants were transferred the parcels of land  Limuru/Ngecha/1240 and 1241 as gifts  by their father, Section 29 of the repealed  Registered  Land Act  provided  such transferor  would  be subject to any unregistered  rights or interest that the transfer held the property. Section 29 RLA provided thus;-

29. Every proprietor who has acquired land, lease or charge  by transfer without valuable consideration shall hold it subject to any unregistered rights or interests subject to which the  transferor held it, and subject also to the provisions of the Bankruptcy Act and to the winding up  provisions of the Companies Act, but save aforesaid the transfer when registered  shall in all respects have the same effect as a transfer for valuable consideration.

The  effect of the foregoing provision is that if as in the instant case the deceased  father of the 1st Plaintiff was obligated under the Kikuyu Customary Law not  to disinherit the 1st Plaintiff, he did make any transfer as he did to the 1st and 2nd  Defendants such transfer would be subject to such obligations as he may have had as the transferor as at the time he made the transfer.  It is my holding that as at the time he effected the said transfers he was under an obligation to provide for the 1st Plaintiff as concerns  his inheritance under the Kikuyu Customary Law.

While  under the Land Registration Act NO. 3 of 2012 section 25 replaced the previous  section 28 of the Registered Land Act Cap 300 Laws of Kenya the new Act under section 28 expressly recognized customary trust as an overriding interest that does not require to be noted in the  proprietorship register. Section 28 (b) of the land Registration Act No. 3 of 2012 provides thus:-

28. Unless the contrary is expressed in the register, all registered land shall  be subject to the following overriding interest as may for the time being subsist and affect the same, without being notice on the register:-

a) Spousal rights over matrimonial  property ,

b) Trust including customary trusts,

c) ………………………..

d) ………………..………

e) ……………………….”

18) The counsel was of the view that on the basis   of the aforementioned proposition plus the Defendant’s own  testimony that his father had wanted him  to be an administrator of the suit land, the court should  find that   the defendant  holds the  parcels of land in trust  for the Plaintiffs.

19)   Regarding thesecond principle on the right to land for [an married] women, the counsel cited Article 27 of the Constitution that affords equal protection for both men and women under the law. The counsel cited the case of Silas Mburung’aMathu& Another Vs MathioMugane [2017]  eKLR where  this principle was applied.

20)   The counsel submitted that it would only be equitable that if the 3 parcels of land in contention be shared equally between the two (2) Plaintiffs and the Defendant.

21)   Regarding the developments in parcel number 1858 the counsel pointed out that the Plaintiffs havenot expressly land claim on them but to the land itself.  He asked the court to make a decision based on the totality of the evidence before it.

22)   I have read the evidence on record as well as the submissions by the Plaintiffs. There is no doubt that the Defendant admits that he inherited land parcel number 141 and 161 from his father.  The Defendant said that the two parcel   of land were registered in his name at the written request of his late father. He also said that parcel number 1858 was excised from land parcel number 141.  Given those circumstances, I am in agreement with the Plaintiff’s counsel that the Defendant holdsthe land in trust for the two Plaintiffs under customary trust.

23)   The Defendant has no basis for allotting to himselfbigger portions than those of the two Plaintiffs as that would amount to discrimination contrary to article 27(4) of the Constitution.  It is also not lost on this courtthat the Plaintiff have the consent   dated 25th August, 2014 from the District Land Adjudication OfficerKibwezi to file this suit, the same having been issued pursuant to section 30(i) of the Land Adjudication Act Chapter 284 of the Laws of Kenya.

24)   The upshot of the foregoing is that   I hold that the Defendant and the two Plaintiffs ought to share land parcel number 141,161 and 1858 equally between themselves.  Being satisfied that the Plaintiffs have a cause of action against the Defendant.  I hereby proceed to enter judgment for them and against the Defendant in terms of prayers (a) (b) and (c) of the Plaint. It is so ordered.

SIGED, DATEDandDELIVEREDatMAKUENIthis23RDday ofNOVEMBER, 2018.

MBOGO C.G,

JUDGE

IN THE PRESENCE OF;

1st Plaintiff

Defendant

No appearance for the Plaintiff

No appearance for the Defendant

KyangaMwiwa Court Assistant

MBOGO C.G, JUDGE

23/11/2018