Festus Njuguna Kamau v George Gachiengo Murage [2020] KEELC 2940 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELCA NO 19 OF 2019

FESTUS NJUGUNA KAMAU.....................................................APPELLANT

VERSUS

GEORGE GACHIENGO MURAGE.....................................RESPONDENT

J U D G M E N T

(Arising from the judgment and decree of the Court of the Principal Magistrate Molo (S M Soita) delivered on 15th  June 2010 in Molo SRMCC No.354 of 2004).

1. This appeal is against the judgment and decree of the court of the Principal Magistrate Molo (S M Soita ESq) delivered on 15th June 2010 in Molo Senior Resident Magistrate’s Civil Suit No.354 of 2004. By his decision the learned trial magistrate dismissed the suit by the plaintiff the appellant in this appeal and allowed the counterclaim by the defendant, the Respondent in this appeal.

2. In the suit in the lower court the appellant claimed ownership of plot No.42 Molo Town by virtue of having been a bonafide purchaser of the same. The Appellant claimed the respondent had trespassed  onto the plot claiming to be the owner of the plot. The Appellant sought an order of perpetual injunction and damages for trespass against the Respondent.

3. By way of defence  and counterclaim the Respondent  in the lower  court averred that he was the allottee of  plot No. 50 Molo Town and that it was  the  appellant who was  trespassing  into his  said  plot claiming it was plot No.42 which the Respondent stated had ceased to exist  following  a reorganization of the plots by the Town council. The Respondent sought an order for a permanent injunction restraining the Appellant from trespassing onto his plot No. 50 Molo Town and general damages for trespass.

4. After hearing the parties and their witnesses, the learned trial magistrate rendered a decision dismissing the appellant’s suit with costs, decreed the Appellant a trespasser on the Respondent’s plot No. 50 Molo Town and ordered the Appellant to be evicted from therefrom.

5. The learned trial Magistrate further granted a perpetual injunction in favour of the Respondent and awarded the Respondent the costs of the counterclaim against the Appellant.

6. The Appellant being dissatisfied with the decision has appealed  to this court and has set out 9 grounds of appeal in his memorandum of appeal  filed herein as follows:-

1.  That the learned magistrate erred in law and fact in holding  that no valid transaction could stand in  the absence  of a Sale Agreement in favour  of the Appellant.

2.  That the learned magistrate erred in law and fact in failing to appreciate that the Plaintiff  had  proved that he was the lawful  owner  of plot  No.42 having  paid all  the requisite  transfer fees and having  been paying the plot rent and not the Defendant to the Molo Town Council.

3.  That the learned magistrate erred in law and fact in finding  that the Plaintiff failed to demonstrate that  he complied with the two key conditions  of the offer of allotment  despite  there being evidence  of payment of the requisite  fees.

4.  That the learned magistrate erred in law and fact in holding  that the original  allottee had no locus standi to transfer  plot No.42 thus his subsequent  nexus to the Plaintiff is lost.

5. That the learned  magistrate  erred in law and fact in finding  that on a balance of probabilities, the  Plaintiff had failed to establish  his case against  the Defendant .

6.   That the learned magistrate erred in law and fact in failing to appreciate that there was no nexus between plot No.50 and plot No.42 as evidenced by the copy of the Green card.

7. The grounds of appeal collectively challenge the learned trial magistrate’s findings of fact and law. The appellant argues the learned trial magistrate arrived at a decision that could not be justified on the basis  of the evidence adduced and the applicable law.

8. This being a first  appeal  this court  is under  a duty  and indeed obligated to re appraise and reevaluate the evidence adduced before  the lower court in order  to determine  whether  the decision by the  trial  court  was justifiable  having regard to the evidence tendered before  it and the applicable  law. This court is entitled upon reevaluation of the evidence to reach its own findings and conclusions but must be cautions that it never had the advantage of seeing the witnesses in the witness box. The court  should generally be slow in  interfering with the trial  courts findings of fact and /or exercise of discretion  unless  it is  plain that there  was no evidence to support  the findings and /or that the trial  court  acted on a misapprehension of the law and or acted upon  or applied  wrong  principles in reaching the findings and/or decision. In the case ofSell –Vs- Associated Motor Boat Co. Ltd & others (1968) EA 123,  the Court  of  Appeal  enunciated  the principle thus:-

“--- this court is not bound necessarily  to accept  the findings of fact of the Court--- is by way of retrial and the principles  upon which  this court acts in such an eflyput  they are that  this court must reconsider the evidence, evaluate itself and draw  its  own conclusions though  it should always bear in in mind  that it  has neither seen  nor heard the witnesses  and should make due allowance  in this respect ---“

9. The Appeal was argued by the parties by way of written submissions. The appellant’s submissions were filed on the 17th December 2019 and the respondent’s on 16th January 2020. The parties in their respective submissions have gone over the evidence adduced before the lower court and the applicable law to justify their positions. The appellant submitted that on the basis of the evidence he adduced he satisfied the threshold of proof of his case on balance of probabilities and ought to have had judgment in his favour. For his part the respondent was of a contrary view that the appellant had failed to establish his claim and that the learned trial magistrate was entitled to come to the conclusions that he did.

10. Before the court considers the merits or otherwise of the appeal it is necessary to set out albeit in  brief the facts of the case before  the lower court.

The case of the appellant

11. The appellant’s case before the lower Court where he was the plaintiff was that he claimed ownership of plot No.42 Molo Town. It was his case that he purchased the plot No. 42 Molo Town from one Fanice Awinja Waithego and that the original allottee, Patrick Ongoro Nyandisi from whom Fanice Awinja had bought the plot  earlier,  transferred  the plot directly to him. He stated that he had not signed any formal agreement of sale with Fanice  Awinja  but  that after he paid the purchase price he was given by Fanice Awinja the documents relating to the plot including the copy of the original letter of allotment to Patrick  Ongoro Nyandisi (PEX3). He stated he paid the necessary charges for survey, transfer fees, plot rent and clearance fees and was issued receipts (PEX4). He stated he was shown the plot beacons by one Laban Anyona, took possession and fenced and that  he had continued to pay the plot rent which the council has continued to accept. He further stated he constructed temporary structures in the plot which he had been renting out.

12. He stated that before he bought the plot he had verified with the records held by the council and he was satisfied plot No. A2 existed on the ground where he was shown and denied that the plot No.50 claimed by the defendant was on the same spot where his plot No.42 is situated. The appellant stated  that he  had no  knowledge whether Patrick  Nyandisi accepted the allotment  in writing  or whether  he had paid the requisite  fees  of Kshs300/= to Molo Town  Council to  be shown  the plot as there was no receipt  for the amount given to him . The appellant stated that he was not aware that there had been any replanning of the Town council plots and or that the respondent’s plot No.50 was located on the same position where his plot No.42 was on the ground. The Appellant stated that he was not a party in Nakuru  CMCC No.2595 of  1996 and observed  that his plot No.42 was not in issue  in that case and hence the decision in the case could not have affected  his said plot.

13. The appellant called  Patrick Ongoro Nyandisi as a witness (PW2)  and he affirmed  that he indeed sold his plot No.42 Molo Town to Fanice Awinja Waithego who later sold the plot to the Appellant. PW2 stated as the plot was  still  in his name  when Fanice Awinja sold the plot, he (PW2) signed  a transfer  form  direct to the appellant . PW2 stated that he had duly been allocated the plot and that he had fulfilled all the requirements attaching to allotment before he sold and transferred the plot. PW2 admitted he was a councillor at the time he got the plot in 1991. He stated he  was the chairman of the planning committee of Molo Town council from 1988 to 1992. He said he ceased being a councillor in 1992 and from then onwards he affirmed he would not have  known whether  there  had  been  any replanning of the Township plots.

14. Fanice Awinja Wathegi (PW4) testified that she purchased the suit  plot  from  PW2 in June 1993 though  no transfer  was effected to her . She sold the same plot to the appellant in 2001 and caused PW2 to effect the transfer to the applicant. PW4 stated when she bought  the plot from PW2 they signed an agreement and PW2 passed  the allotment  letter (PEX3)  to her which she gave  to the appellant  when she sold the plot  to him. PW4  testified  that she had  put  some temporary  structures on the plot. She stated that the case that had been filed in Nakuru Court by the Respondent together with others did not touch on her plot No.42.

15. Nancy  Wanjigo  Kinuthia  (PW5)  owned plot No.43 Molo Town which  she stated  neighboured  plot No.42 owned  by the Appellant . The witness stated the Appellant was sold plot No.42 by PW4 and that he became her neighour from 2000. The witness further  affirmed their plots had issues with the Molo County Council  which prompted them to institute  a suit against  the Molo Town  Council vide Nakuru CMCC No.2595 of 1996. The Appellant or his predecessor in title was not a party to the suit. The Respondent was a party to the suit as the beneficiary of plot Nos 48 and 50. She affirmed the court decreed they were the lawful allottees of the plots and directed that their allocations be not interfered with. The Court decree was implemented and the council delineated and showed the decree holders their respective plots on the ground. The witness however explained that some of the allottees did not get their plots at the original plot locations.

16. PW7 Peter Njoroge Mwangi a Records clerk at the Town  Council testified that plot 42 had been allocated to Mr. Nyandisi  but he sold it in 2000 to the appellant . He explained that it was the appellant who had been paying rates for the plot. The witness however did not explain how and when the transfer to the plot 42 was effected to the appellant. He stated though an allotment letter issued to Mr.  Nyandusi, there was no evidence of acceptance of the allotment. He acknowledged there was a suit that involved plots 37,38,40,43 44, 48 and 50 where  the court ruled the plaintiff’s  in the case who included the respondent were the lawful  allotees of the plots. The town Council implemented the decree issued by the court.

The Respondent’s case

17. The Respondent, George Gachiengo Murage, testified as DW2 in the lower court. He stated be was allocated plot No.50 Molo Town Council on 24th June 1991. He produced in evidence the letter of allotment and affirmed that he accepted the allotment and paid the requisite charges of Kshs.4,750/=. He stated in 1996 the council threatened to repossess the plots prompting them to file Nakuru CMCC No. 2595 of 1996. He affirmed  the Court  issued a decree  relating  to 8 plots No’s 37, 38,39,40,43,44,48 and 50 which was implemented with all  the affected  persons  in the decree being   shown their respective plots physically on the ground. The respondent stated he took possession of the plot  he was  shown and while  they were awaiting  to be furnished by the Town council  with the development plan, the appellant entered onto his plot and started constructing on the site . He stated that when he visited the site, he was confronted with  a plaint and he came to court and subsequently the court ordered the construction to stop. The respondent asserted the appellant was trespassing on his plot No.50 which the council  had showed to him following the determination of the case in Nakuru.

18. The Respondent stated he was shown the plot in 2000 and he took possession. He said he did not construct any structure on the plot as he had not obtained approval. He said  he  got to know  the appellant  in court and stated  at the time  the present suit  was commenced  he was in possession  of the plot . He stated he was shown the plot by one Laban Anyona who under cross examination he disclosed to be related to through marriage as his son (respondent’s) is married to his aunt.

19. Laban  Maranga, works officer  Molo  Town council  testified  as  DW1. He explained that he advised the council on general town planning issues, approvals of development plans and assisted in project implementations. DW1 explained that plot No. 50 was  located at the stadium site and  that the same was  allocated  to the  respondent on 24th June 1991 though  it  was shown  to him  in 2000.

20. DW1 affirmed he was present when the Respondent  was shown the plot. He indicated  the council  had initially planned  to do lock ups in the area where the  plots were located but  after  the allottees filed a suit  the council was ordered  to allocate  the allottees who had filed suit  plots in the area. There were 8 allottees and the Respondent was one of them. He stated the council complied with and implemented the court order. The council made a resolution to have the court order implemented and the Town clerk appropriately directed   the implementation. He testified that on allotment one is supposed to pay Kshs.6890/=. He stated plot No.42 did not exist  as it was nullified in 1992. He further explained a transfer required to be tabled before a committee and be approved. He affirmed that plot No.42 and plot No.50 are not the same and he denied the council had an allottee by the name of Festus Njuguna  Kamau ( appellant). He explained, the council had not approved any developments on plot No.42 at the site. He affirmed the Respondent took possession of the plot that he showed him in 2000.

Analysis and determination

21. Upon evaluation of the foregoing evidence, the trial magistrate arrived at the decision that he did whereby he found the appellant’s suit not proved on a balance of probabilities and dismissed the same while he found the Respondent’s counter claim established and allowed the same. In this appeal the issue for determination is whether on the evidence tendered the magistrate was entitled to arrive at the finding that he did and/or to reach at the decision that he did.

22. From  the evidence adduced before the learned trial magistrate it was the appellant’s evidence that he purchased plot No.42 Molo Town council  from one  Fanice Awinja Wathegi who in turn  had purchased  the same plot from one Patrick  Nyandisi  who however  had not caused  the plot  to be transferred to her. The only document that was furnished in evidence to show that Patrick  Nyandisi  had any proprietary interest in plot  No 42 was a copy of letter  of allocation  dated 24th June, 1991 addressed to him whose content  was as follows:

Re  :Allocation of plot 42 Molo Town

I am pleased to inform you that you have been allocated Business plot No.42 at Molo Township. Other charges in respect of the plot will be communicated to you on acceptance of this offer which should be acknowledged in writing to the undersigned within 30 days from the date hereof.

You should also arrange to pay Kshs 300/= so that you can physically  be shown your plot.

Signed

Kenneth  Mokua

AG Clerk Molo Urban Council.

23. There was no evidence tendered to demonstrate that Patrick Nyandisi  did actually  accept  the allotment  and /or  that he paid the other charges that went with allocation. The appellant has submitted  that the learned trial magistrate erred  in holding  that the appellant had not proved  and /or  demonstrated there  was acceptance of the  allotment by Patrick  Nyandisi and/or  that the necessary charges relating to the allotment were paid. The appellant  submitted that he had infact demonstrated through the production of payment receipts received from the Town council of Molo that the required  fees were paid. The Court having perused the record of appeal noted that all the receipts produced by the Appellant were dated as from 7th May 2001, the day he  allegedly   bought  the plot  No.42 from Fanice Awinja Waithegi. There  were no  receipts from the Town  Council  issued either  to Patrick  Nyandisi or Fanice Awinja to support  their  ownership  of plot  No.42 Molo Town. It is  noteworth  that Patrick  Nyandisi  never effected  the transfer  of the plot to Fanice Awinja  and  apart from the letter of allotment he did not give  Fanice Awinja  any other document to support  his ownership  of plot  No.42 Molo Town.

24. The respondent in contrast, in his evidence, he tendered documentary evidence to show that he was allocated plot No.50 Molo town as per the letter of allotment dated 24th June 1991. He produced receipts to show that he paid the associated allotment charges on 19th November 1992. The respondent also when the Town  council  in 1996  threatened to repossess the plots allocated  to him,he together  with 7 other allottees sued the council  vide  Nakuru  CMCC No.2595 of 1996 and obtained  orders  barring the council  from interfering  with the plots. The council was ordered to allocate and show the decree holders in the suit their respective plots. The respondent’s  plot No.50 was delineated  on  the portion  the  Appellant  claims  plot  No 42  to be  on the ground. Although  the appellant  in his evidence has stated he was shown  his plot No.42 by Laban Anyona (DW1) of the Molo  Town  council, when DW1 testified  he denied ever showing  the appellant the said plot. DW1 confirmed that he indeed showed the respondent plot No.50 in implementation of the Court  order in Nakuru CMCC  No.2595 of 1996. He stated that  plot No.42 did not exist  and affirmed  that all allotttees who were not parties  in the Nakuru  suit lost their plots.

25. The learned trial magistrate upon evaluation of the evidence observed as follows:-

“I have carefully appraised the evidence on record. It was the testimony of the plaintiff that he bought plot No. 42  from  PW4. No sale agreement was exhibited before the court confirming there was such a transaction. Indeed the plaintiff himself and PW4 acknowledged that there was no sale  agreement  between them. PW4  stated  she bought  the plot from Patrick  Nyandisi ( PW2) PW2  was the original  allottee. The letter of allotment was produced as PEX3. The letter  required  the allottee to accept the offer in writing  within 30 days  and further it required  the allotte to pay  a sum of Kshs300/= being showing fees. No evidence at all was adduced for acknowledgement of the offer  by PW2. Pw2 was cross  examined  on this  and he was clear  there  was no written  acknowledgement. He  however  insisted  that he had paid  Kshs300/=  which  was a condition  in the  letter of offer and asserted  that he was issued  with a receipt  by the council  and passed  it over to PW4  together with  the allotment letter.

PW4 contradicted PW2 on the aspect of payment  of Kshs300/=. When  she was cross examined she was  very  categorical; she was never shown any receipt for Kshs300/= .PW2  has failed  to demonstrate that he complied  with the two key conditions of the offer to him. He really had nothing to sell to PW4 and the nexus to the plaintiff is lost here. On a balance of probabilities i find that the plaintiff  has failed  to establish his case which  I dismiss  with costs to the defendants”

26. It is the above finding that aggrieved the appellant prompting the instant appeal. I have made my own assessment and evaluation of the evidence and I find no basis upon which I can fault the learned trial Magistrate respecting the conclusions he reached. On the evidence there is no demonstration that the offer of plot  No.42 to PW2 crystallized. There was no evidence of acceptance of the offer of the plot. The acceptance was to be in writing and the allotment charges including a showing fee of Kshs 300/- had to be paid for the offer to crystalize. There was no evidence whatsoever of the acceptance of the offer of payment of allotment charges by PW2. The trial  magistrate  in the circumstances was entitled  to come to a finding  that PW2 had no proprietary  interest  in plot No 42 that he could have sold to PW4, Consequently PW4,  therefore  acquired  nothing  from PW2  and consequently  had nothing to sell to the appellant.

27. The appellant’s suit before the lower court was not founded on any sale agreement but on the fact that the appellant was claiming  ownership of plot No.42 Molo Town which he alleged the Respondent was interfering with and sought  orders of restraint  Section 3(3) of the Law of  contract Act  had no application to the circumstances of the case. What was in issue was the existence and /or ownership of plot No.42 vis- a- vis plot No.50 Molo Town. Although Pw2  had been issued a letter of allotment  for plot No.42 Molo Town the evidence adduced before the lower court  established that the allotment was not given effect and that the Molo  Town  council had sought  to replan the area where  the plots  had been allocated to establish what they termed lock-ups to accommodate squatters who had been caught up in  tribal clashes. Only the persons who challenged the council  in court  in Nakuru  CMCC No.2595 OF 1996 had their plots re-allocated and delineated. The appellant  was not a party in the suit and by the time  he bought  the plot  in May  2001, the  decree  in the suit  had been issued  which  obligated  the council  to allocate  the specified plots to the decree/holders. The Respondent’s plot No.50 was identified and shown to him. The respondent having acquired  the  plot  pursuant  to an allocation and the council  having  been ordered to delineate the plots pursuant to a court decree which  still  stands, the trial court  lacked the jurisdiction  to dislodge   the decree of the court  in Nakuru which decree had been  implemented .It does  appear  to me the appellant’s  cause of action if any ought to  have  been against  Molo Town Council or they  should at  least have been enjoined  to the suit as a party, they  having been responsible  for the allocations.

29. On my  own evaluation of the evidence I have  come to the conclusion  that  the trial  magistrate  was  justified  to come to the decision  that  he did  and there is no  basis  to interfere  with his findings. I find the appeal to be lacking in merit and the same is dismissed with costs to the Respondent.

30. Orders accordingly.

Judgment dated signed and delivered electronically at Nakuru this 30th day of  April 2020.

J M MUTUNGI

JUDGE