Ireri Nyaga Njege v Nicholas Ndwiga Peter Ireri, Keziah Njoki, Muthoni Irene Wawira & Muthoni Rosemary Mukami; Daniel Njagi Mwangi (Interested Party) [2020] KEELC 661 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT EMBU

E.L.C. APPEAL NO. 12 OF 2017

IRERI NYAGA NJEGE..........................................................................APPELLANT

VERSUS

NICHOLAS NDWIGA PETER IRERI.........................................1ST RESPONDENT

KEZIAH NJOKI.............................................................................2ND RESPONDENT

MUTHONI IRENE WAWIRA.......................................................3RD RESPONDENT

MUTHONI ROSEMARY MUKAMI............................................4TH RESPONDENT

AND

DANIEL NJAGI MWANGI...........................................................NTERESTED PARTY

(Being an appeal against the Judgement and decree of Hon. M.N. Gicheru (Chief Magistrate)   dated 9th October 2017 in Embu CMCC Case No. 217 of 2012)

JUDGEMENT

A. INTRODUCTION AND BACKGROUND

1. This is an appeal against the judgement and decree of Hon. M.N. Gicheru (CM) dated 9th October 2017 in Embu CMCC No. 217 of 2012 – Daniel Njagi Mwangi v Ireri Nyaga Njege (by original action) and Nicholas Ndwiga Peter Ireri & 4 others v Daniel Njagi Mwangi & Ireri Nyaga Njege (by counterclaim).  By the said judgement, the trial court dismissed the Interested Party’s suit in the original action and allowed the Respondents’ counterclaim.

2. The material on record indicates that the by a plaint dated 23rd October 2012 the Interested Party sought an order for Ireri Nyaga Njege (the Appellant) to transfer to him Title No. Gaturi/Githimu/7386 (the suit property).  The Interested Party also sought an order for removal of all cautions, restrictions and prohibitions against the suit property.

3. The basis of the Interested Party’s claim was that he had bought the suit property for valuable consideration from the Appellant vide a sale agreement dated 17th April 2012.  It was contended that the Appellant had refused or neglected to facilitate transfer of the suit property despite demand and notice of intention to sue hence the suit.  No other disclosures were made by the Interested Party in the plaint.

4. It would appear from the record that the Appellant did not file a defence to the action but he instead recorded a consent with the Interested Party on 31st October 2012 allowing the orders sought.  However, on 3rd December 2012 the Respondents who are adult children of the Appellant sought to be joined in the suit as Interested Parties.  They also sought the setting aside of the consent judgement which was recorded in their absence.

5. The Respondents were successful in their application hence they were joined in the suit as Interested Parties and the consent judgement was also set aside.  They consequently filed a defence and counterclaim.  By their defence, they contended that the sale and transfer of the suit property by the Appellant was fraudulent and illegal.  They contended that the purported sale had taken place in a secretive and fraudulent manner since the Appellant had already sub-divided the original family land and ceded the portion in dispute (the suit property) to them.

6. By their counterclaim, the Respondents contended that the suit property was part of their ancestral land of which they were beneficial owners hence the Appellant had no right to unilaterally sell it.  They further contended that they had been in actual possession of the suit property and that they had developed it by building houses and cultivating crops and trees thereon.  They therefore considered that the Appellant was simply holding it in trust for them and future generations. They consequently sought the following reliefs in the counterclaim:

a) A declaration that the plaintiffs in the counterclaim are entitled to land parcel No. Gaturi/Kithimu/7386.

b) An order directing the land registrar to effect changes in the title deed to land parcel No. Gaturi/Kithimu/7386 by cancelling the existing title or titles in any other names other than those of the plaintiffs in the counterclaim and instead issuing a new title deed in the names of the plaintiffs in the counterclaim jointly and in common.

c) An order permanently restraining the defendants in the counterclaim from trespassing on, invading, and interfering with, using or in any way dealing with land parcel No. Gaturi/Kithimu/7386 either by themselves or their agents.

d) Costs and interest of this suit.

7. The material on record indicates that the Appellant filed a defence to the Respondents’ counterclaim in which he refuted the Respondents’ claim.  He pleaded that he was the sole registered proprietor of the suit property and that he had every right to deal with it as he wished.  He denied any fraud or illegality in the sale of the suit property to the Interested Party.  In fact, he asserted that he had sold it for their benefit so that he could resettle them on separate parcels of land as they were unable to co-exist together peacefully on the suit property.

8. The Appellant also denied that he had set aside or ceded the suit property to the Respondents at any time and put the Respondents to strict proof thereof.  He did not, however, specifically deny the Respondents’ pleading that the suit property was ancestral land.

9. When the suit and counterclaim came up for trial the advocates for the parties recorded a consent for the matter to be determined on the basis of the witness statements and documents on record and the written submissions of the parties.  By its judgement dated 9th October 2017, the trial court dismissed the Interested Party’s suit in its entirety and entered judgement for the Respondents as prayed in the counterclaim.

10. The trial court found and held that the sale and transfer of the suit property was fraudulent and that the Appellant and the Interested Party had secretly colluded to have a consent judgement recorded on 31st October 2012 without the knowledge of the Respondents who were in occupation of the suit property.  The trial court also held that the suit property was ancestral land which was being held in trust by the Appellant hence he could not unilaterally sell it without the consent of the Respondents.  The court also found that the Interested Party was aware at the time of buying the suit property that the Respondents or some of them were in occupation thereof.

B. THE GROUNDS OF APPEAL

11. Being aggrieved by the judgement of the trial court, the Interested Party filed a memorandum of appeal dated 8th November 2017 raising the following eleven (11) grounds of appeal:

i.The learned Magistrate erred in law and fact in arriving at a decision that was against the weight of evidence and the law and in not finding that the Respondents had no cause of action against the Interested Party and that the counterclaim by the Respondents in Civil Case No. 217 of 2017 had no foundation in law and was not sustainable in fact either.

ii.The learned Magistrate erred in law and fact in finding that the transfer of land parcel No. Gaturi/Githimu/7386 by the Interested Party to Daniel Njagi Mwangi was fraudulent, irregular and/or illegal and in ordering the cancellation of the Title deed to land parcel No. Gaturi/Githimu/7386 in the name of Daniel Njagi Mwangi and the registration of the same in the names of the Respondents/Interested Parties, when there was basis for doing so.

iii.The learned Magistrate erred in law and fact in finding that there was a customary law trust envisaged in land parcel No. Gaturi/Githimu/7386 which trust was allegedly held by the Interested Party in favour of the Respondents/Interested Parties when in fact there was no such trust.

iv.The learned Magistrate erred in law and fact, in not finding that the Respondents/Interested Parties were offered and/or given alternative land by the Interested Party and that they therefore no longer had any claim if any to land parcel No. Gaturi/Githimu/7386.

v.The learned Magistrate erred in law and fact in not finding that the Interested Party transferred land parcel No. Gaturi/Githimu/7386 to Daniel Njagi Mwangi for valuable consideration, with the full knowledge and approval of the Respondents/Interested Parties and that Daniel Njagi Mwangi bought for the Interested Party and the Respondents/Interested Parties land parcels Nos. Gaturi/Weru/7559, Gaturi/Weru/8545 and Gaturi/Weru/8417 and that the Respondents/Interested Parties therefore ceased to have any claim, if at all they had any, in land parcel No. Gaturi/Githimu/7386 and were estopped from pleading ignorance of the transaction for sale of the said land aforesaid or challenging the said sale.

vi.The learned Magistrate erred in law and fact in not finding that even if there was a customary law trust in land parcel No. Gaturi/Githimu/7386 in favour of the Respondents which is denied, then the trust could not be determined during the lifetime of the Interested Party who is the father of the Respondents as that would be depriving the Interested Party off the said land unlawfully, unprocedurally and prematurely.

vii.The learned Magistrate erred in law and fact in making orders that had not been prayed for and/or arriving at findings that amounted to giving the Respondents the right to inherit the Interested Party land and/or estate during the lifetime of the Interested Party which is unlawful and in not finding that the Respondents can only be entitled to the Interested Party’s estate and/or properties upon the death of the Interested Party, unless the Interested Party gives to all the Respondents or any of them the said land and/or any other properties voluntarily as gifts during the Interested Party’s lifetime.

viii.The learned Magistrate erred in law and fact in not finding that the Interested Party as the absolute proprietor of land parcel No. Gaturi/Githimu/7386 had the right to exercise proprietary rights, to use and/or deal with the said land in whatever way without any interference, control, direction or encumbrances from the Respondents or any other persons for that matter.

ix.The learned Magistrate erred in law and fact in not finding that the Respondents were well aware of the intention of the Interested Party to sell land parcel No. Gaturi/Githimu/7386 to Daniel Njagi Mwangi and that there was no fraud in the said sale or transfer as to take up land parcel Nos. Gaturi/Weru/7559 and 8417 the Respondents were estopped from claiming any land form the Interested Party and had no right to do so through either the court process or otherwise.

x.The learned Magistrate erred in law and fact in purporting to set aside a consent order entered into between the Plaintiff and the Defendant in Civil Case No. 217 of 2017 and/or to supersede the said consent without an application having been made for such orders and without laying any basis for doing so.

xi.The learned Magistrate erred in law and fact not appropriately appreciating the issues for determination in Civil Case No. 217 of 2012 and in ignoring important and crucial evidence thereby arriving at wrong findings of facts and the law.

12. The Interested Party consequently sought the following reliefs in the appeal:

a) Thatthe appeal be allowed.

b) Thatthe whole judgement and decree of the Hon. M.N. Gicheru (CM) dated 9th October 2017 in Embu CMCC No. 217 of 2012 be set aside.

c) Thatthe said judgment be substituted with an order dismissing the Respondents’ counterclaim against the Interested Party.

d) Thatcosts of the appeal and of the counterclaim in Embu CMCC No. 217 of 2012 be awarded to the Interested Party.

It is noteworthy that the Appellant did not seek an order allowing the Interested Party’s claim in Embu CMCC No. 217 of 2012.

C. DIRECTIONS ON SUBMISSIONS

13. When the appeal came up for directions on 2nd July 2020 it was directed that the appeal shall be canvassed through written submissions.  The Appellant was granted 30 days to file and serve their submissions whereas the Respondents and the Interested Party were granted 30 days upon the lapse of the Interested Party’s period to do likewise.  The record shows that the Appellant filed his submissions on 15th October 2020 whereas the Respondents filed theirs on 18th August 2020.  However, the Interested Party’s submissions were not on record by the time of preparation of the judgement.

D. THE APPLICABLE LEGAL PRINCIPLES

14. The court is aware of its duty as a first appellate court.  It has a duty to analyze, reconsider and re-evaluate the entire evidence on record so as to satisfy itself as to the correctness or otherwise of the decision of the trial court.  The principles which guide a first appellate court were summarized in the case of Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA. 123at page 126 as follows:

“…Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.  In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression on the demeanor of a witness is inconsistent with the evidence in the case generally.”

15. Similarly, in the case of Peters Vs Sunday Post Ltd [1958] EA 424  Sir Kenneth O’   Connor, P. rendered the applicable principles as follows:

“…It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who had the advantage of seeing and hearing the witnesses.  An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon the evidence should stand.  But this is a jurisdiction which should be exercised with caution.  It is not enough that the appellate court might itself have come to a different conclusion…”

16. In the same case, Sir Kenneth O’ConnorquotedViscount Simon, L.C in Watt  Vs Thomas [1947] A.C 424at page 429-430 as follows:

“My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge.  For convenience, I use English terms, but the same principles apply to appeals in Scotland.  Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution.  If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide.  But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight.  This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration.  Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

E. THE ISSUES FOR DETERMINATION

17. Although the Appellant raised 11 issues in his memorandum of appeal, the court is of the opinion that the appeal may be effectively determined by the following 3 key issues:

a) Whether the trial court erred in law and fact in dismissing the Interested Party’s suit.

b) Whether the trial court erred in law and fact in allowing the Respondents’ counterclaim.

c) Who shall bear costs of the appeal.

F. ANALYSIS AND DETERMINATIONS

a. Whether the trial court erred in law and fact in dismissing the Interested Party’s suit

18. The court has considered the evidence on record and the submissions of the parties on this issue.  The Appellant faulted the trial court’s finding that the sale of the suit property was fraudulent since he contended that no fraud of any kind was established.  The Interested Party contended that no customary trust had been demonstrated with respect to the suit property.  The Appellant also faulted the trial court in failing to find that he was the absolute proprietor of the suit property and that he could deal with it as he wished without any interference from the Respondents.

19. The court has noted that the parties chose to rely on the documents and witness statements without calling any witnesses.  That would mean that the trial court did not have any special advantage which this court is denied at the appellate stage.  The court is of the opinion that this appeal really turns on the issue of whether the suit property constituted ancestral land and whether or not the Appellant was holding it in trust for the Respondents.  The Respondents’ allegation of fraud appears to be a secondary issue.

20. The court has noted that although the Respondents pleaded specifically in their counterclaim that the suit property was ancestral land the Appellant completely failed to deny that averment both in his defence to counterclaim and witness statement despite being accorded an opportunity to respond thereto.  The Respondents’ claim that the suit property was ancestral land therefore remained unchallenged hence the trial court was entitled to make the finding which it did.

21. The trial court having found that the suit property was ancestral land, it was entitled to find and hold that Nyaga was not the absolute owner thereof and that he was holding it in trust for the rest of the family members.  There was abundant evidence before the trial court to demonstrate that some of the Respondents were in possession and occupation of the suit property even at the time the Interested Party bought it from the Appellant.

22. In its judgement, the trial court held that the mere fact that the Appellant was the registered proprietor did not mean that he was the absolute owner thereof and that he could deal with the suit property as he wished without any regard to his family members.  The trial court referred to Section 28 of the Land Registration Act, 2012 which recognizes trusts as overriding interests which need not be noted in land register.  The said section stipulates that:

“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—

a) deleted byAct No. 28 of 2016, s. 11(a);

b) trusts including customary trusts;

c) rights of way, rights of water and profits subsisting at the time of first registration under this Act;

d) natural rights of light, air, water and support;

e) rights of compulsory acquisition, resumption, entry, search and user conferred by any other written law;

f) deleted byAct No. 28 of 2016, s. 11(b);

g) charges for unpaid rates and other funds which, without reference to registration under this Act, are expressly declared by any written law to be a charge upon land;

h) rights acquired or in process of being acquired by virtue of any written law relating to the limitation of actions or by prescription;

i) electric supply lines, telephone and telegraph lines or poles, pipelines, aqueducts, canals, weirs and dams erected, constructed or laid in pursuance or by virtue of any power conferred by any written law; and

j) any other rights provided under any written law,

Provided that the Registrar may direct the registration of any of the liabilities, rights and interests hereinbefore defined in such manner as the Registrar deems necessary.”

23. The issue of customary law trust was extensively considered by the Supreme Court in Kenya Petition No. 10 of 2015 Isaack M’Inanga Kiebia v Isaaya Theuri M’Lintari & Another [2018] eKLR where the Supreme Court rejected the legal proposition that the registration of a person as a proprietor of land extinguished all existing customary rights and claims under the law.

“Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the  proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms.  For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.

Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court inKiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:

1. The land in question was before registration, family, clan or group land

2. The claimant belongs to such family, clan, or group

3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.

4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.

5. The claim is directed against the registered proprietor who is a member of the family, clan or group.”

24. The court, is therefore, unable to find fault with the trial court’s finding that the suit land was ancestral land and that Nyaga was holding it in trust for the Respondents.  It was not necessary that the beneficiaries of the trust be in possession in order for such trust to be established.  That was the holding of the Supreme Court in the case of Kiebia v M’Lintari (supra).  So, the Interested Party’s contention that only one of the 4 Respondents was in possession of the suit property would not be of any assistance to him.

25. The court shall now examine the trial court’s finding that the transaction between the Appellant and the Interested Party was fraudulent.  The trial court found it strange that the transaction was undertaken in a secretive manner.  The Appellant and the Interested Party appeared to have colluded to file the suit whereby they immediately recorded a consent to facilitate transfer of the suit property.  The registration of the transfer and issuance of a title deed was undertaken at lightning speed.  There was no disclosure that the Respondents or some of them were in actual possession and occupation of the suit property even though there was a restriction in the land register preventing further dealings with the suit property until the family dispute with the suit property was resolved by a court of law.

26. The court has noted that the Respondents’ defence and counterclaim pleaded several particulars of fraud and illegality in paragraph 5 thereof.  Although the Respondents pleaded twelve (12) particulars of alleged fraud and illegality on the part of the Appellant and the Interested Party, the evidence on record reveals that only the 1st and 3rd particulars were proved at the trial.  The evidence on record clearly demonstrated that the two had colluded to file the suit secretly and without involving the Respondents who were in possession in order to facilitate transfer of the suit property to the Interested Party.

27. There was evidence before the trial court to demonstrate that Interested Party was keen to conceal any material facts relating to the occupation and objection by the Respondents of which he was aware.  The copy of the land register tendered at the trial indicated that the 1st Respondent cautioned the suit property on 13th April 2012 claiming a beneficial interest therein.  The Interested Party pleaded in paragraph 3 of the plaint that he entered into a sale agreement with the Appellant for the purchase of the suit property on 17th April 2012 after a caution had already been registered.  The Respondents were not party to the suit by the Interested Party and the Appellant did not defend the suit but he simply consented to the prayers sought.  It is thus clear to any reasonable bystander that the Appellant and the Interested Party were clearly out to defeat the Respondents’ interest in the suit property which was ancestral land.

28. The court is satisfied that although the Respondents did not prove 10 out of the 12 particulars of fraud and illegality pleaded (including forgery), they were not obliged to prove all the 12 particulars in order to succeed on their defence and counterclaim.  The court is of the opinion that even a single ground of fraud is sufficient as long as it is proved to the required standard.  The court, therefore, finds no fault on the part of the trial court in holding that fraud had been proved as a ground for impeaching the Interested Party’s title to the suit property.

b)  Whether the trial court erred in law and fact in allowing the Respondents’ counterclaim

29. The court has considered the evidence and submissions on record on this issue.  Although the Interested Party contended that the Respondents’ counterclaim was not proved at the trial, the court has already found in the preceding paragraphs that the Respondents’ claim which was based on customary law trust was adequately proved.  The trial court found that the suit property was ancestral land which the Appellant was holding in trust for the Respondents.  The court has also found that the trial court was right in holding that the Interested Party’s title was tainted with fraud to which he was privy.

30. The fact that the Appellant had offered the Respondents alternative land which they declined to take could not legally extinguish the customary law trust upon the suit property.  The fact that the Interested Party may have paid the purchase price for alternative land which the Respondents rejected could not sanitize the fraudulent scheme to which he was party.

31. The court is not persuaded that the Interested Party was a bona fide purchaser for value without notice of the Respondents’ beneficial claim to the suit property.  Blacks Law Dictionary, 8th Edition defines a “bona fide purchaser” as follows:

“One who buys something for value without notice of another’s claim to the property and without actual or constructive notice of any defects in or infirmities, claims or equities against the seller’s title; one who has in good faith paid valuable consideration for property without notice of prior adverse claims.”

32. The material on record reveals that that the suit property was already cautioned by the time the Interested Party entered into the sale agreement dated 17th April 2012 with the Appellant.  It was clear from the land register that the 1st Respondent was claiming an interest therein as a beneficiary.  The material on record further indicates that the Interested Party was fully aware that some of the Respondents were actually in possession of the suit property.  In paragraph 8 of his replying affidavit sworn on 11th January 2013 in opposition to the Respondents’ application to be joined in CMCC No. 217 of 2012 he deposed as follows:

“8. That the defendant when he offered the subject matter herein for sale informed me that he decided to sell land and purchase an alternative land for his children because he had on numerous occasions been called upon to intervene in a dispute and calm his children in fights amongst themselves, especially the sons.”

33. The Appellant faulted the trial court for granting the Respondents their prayer to be registered as proprietor of the suit property to his exclusion whereas he was their father.  The issue which arises for consideration is whether the Appellant’s trust could be terminated during his lifetime and whether he could continue to have an interest in the suit property as one of the beneficiaries of the trust.

34. The parties did not address the court on the applicable customary law on the removal of a trustee or termination of a trust.  However, since a customary law trust is a form of trust then it might be helpful to consider the general law of trusts on the issue.  Halsbury’s Laws of England (4th Edition) paragraph 774 states as follows on the removal of a trustee by the court:

“The court will remove a trustee where he refuses to execute the trust, or has mismanaged the trust or has disqualified himself by his circumstances or conduct from continuing to hold the office, and may perhaps do so if his continuance in office would be likely to be detrimental to the trust owing to his being out of sympathy with its objects or with the beneficiaries …”

35. The court is thus of the opinion that a trustee may lawfully be removed from that position by a court of law for mismanaging the trust, breach of trust or other reasons which make his continued presence detrimental to the trust.  There is evidence on record to demonstrate that the Appellant had earlier on sold a portion of the trust property.  He later on secretly sold the remainder of the trust property to the Interested Party without regard to the interest of the beneficiaries.  He further colluded with the Interested Party to record a consent to facilitate a transfer of the suit property to the Interested Party without the knowledge of the Respondents some of whom were in possession thereof.

36. The court is further of the opinion that a fraudulent dealing with trust property can be set aside and nullified by a court of law.  As indicated before, the Interested Party was not a bona fide purchaser for value without notice.  He deliberately took a calculated risk since he was aware of the caution on the suit property and went to great length to obtain a transfer through dubious means.  It is no wonder that the Interested Party did not appeal the decision of the trial court which deprived him of the suit property.

37. There is something quite unusual about the instant appeal.  The Appellant contended that he was aggrieved by the whole of the judgement and decree of the trial court.  One would naturally wonder why a Defendant against whom a suit has been dismissed would be aggrieved by such dismissal.  The first two orders in the counterclaim only affected the Interested Party whose title to the suit property was cancelled.  It must be remembered that the Appellant had already transferred the suit property to the Interested Party by the time the suit came up for trial.  The Interested Party was the party who was adversely affected by the decree but he did not appeal against it.  The order of injunction restraining the Appellant from interfering with property he had already sold to a third party should be of least concern to him for that is property he had forsaken and transferred to third party.

c)  Who shall bear costs of the appeal

38. Although costs of an action or proceeding are at the discretion of the court, the general rule is that costs shall follow the event in accordance with the proviso to section 27 of the Civil Procedure Act (Cap 21).  A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise.  See Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd [1967] EA 287. The court is aware that the Appellant and the Respondents are members of the same family.  Accordingly, the court is of the opinion that each party should bear his own costs of the appeal.

G. CONCLUSION AND DISPOSAL ORDER

39. The upshot of the foregoing is that the court finds no merit in the appeal.  Accordingly, the Interested Party’s appeal is hereby dismissed in its entirety.  Each party shall bear his own costs.  It is so decided.

JUDGEMENT DATED and SIGNED in Chambers at EMBU this 22ND DAY of OCTOBER 2020and delivered via Microsoft Teams platform in the presence of Ms. Nzekele holding brief for Mr. Okwaro for the Appellant, Ms. Muthoni Mboi holding brief for Guantai for the Respondents and in the absence of the Interested Party.

Y.M. ANGIMA

JUDGE

22. 10. 2020