Joel Mutie Nzuki v William Makovo Nguu [2019] KEELC 1832 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MAKUENI

ELC APPEAL   CASE NO. 02 OF 2018

JOEL MUTIE NZUKI..........................APPELLANT

VERSUS

WILLIAM MAKOVO NGUU......... RESPONDENT

JUDGMENT

1) This is an appeal from the judgment of the learned Senior Resident Magistrate’s court in Kilungu SRMCC no.  2 of 2010 delivered on 23rd March, 2011.

2) In his plaint filed at the  subordinate  court the Appellant sought the following  orders;

a) An order that the Plaintiff is sole proprietor   and entitled   to Plot no. 959 Kisekini Adjudication Section Makueni.

b) Special of Kshs. 237,534/=.

c) A perpetual order restraining the Defendant by himself, servants and agents from entering and interfering with Plot No. 959 Kisekini Adjudication Section Makueni.

d) General damages.

e) Costs of this suit.

3) The Respondent filed his defence where he denied the Appellant’s claim.

4) Upon conclusion of the trial at the subordinate court, the learned Senior Resident Magistrate  in his judgment found in favour of the Respondent.  Aggrieved  by the judgment  of the learned  Senior  Resident  Magistrate, the Appellant   filed  this appeal where he has  raised  the following  grounds:-

1. The trial magistrate misdirected himself in law and fact when he failed to consider the whole of the plaint including the prayers thereto but decided to dwell on paragraph no. 3 of the plaint which was an error apparent on the face of the plaint.

2. The trial magistrate erred in law and fact when he failed to consider the evidence given by the Plaintiff and his witnesses in that   the land in question was plot no. 959 Kisekini Adjudication Section and not plot no. 956 Kisekini Adjudication Section.

3. The trial magistrate  erred in  law and fact when he failed to use all the evidence given by the Plaintiff witnesses and also the Defendant  who personally stated  he has been cutting down trees  and selling the same on plot no.  959 Kisekini Adjudication Section.

4. The trial magistrate erred in law and fact when he failed to consider that the locus  standi was visited, saw the damage  caused and even determined the correct suit land that is  plot no. 959 Kisekini  Adjudication Section.

5. The trial magistrate erred in law and fact when he failed to consider  the evidence of PW3  and  PW4 as  expert witnesses who stated  that  the land belonged   solely to the Plaintiff  and  also that of  the Land Adjudication  Office Kisekini   Adjudication Section  when the court together with the officer visited the suit  land and showed the extend of the damage on the suit land that is plot no. 959 Kisekini Adjudication Section and the owner being the Plaintiff according to the records.

6. The trial magistrate erred in law and fact when he failed to consider that  the plaint  prayed  for special damages  for  Kshs. 237,534/= only and that the extra  amount  should not be  considered  as it was not prayed for in the plaint as the  assessments done were two and on diverse dates.

7. The trial magistrate erred in law and fact when he failed to consider that the special damages sought were as per paragraph 5 of the plaint together with prayer number 2 of the plaint.

8. The trial magistrate erred in law and fact when he failed to consider the Defendants evidence in that he admitted he caused damage in plot no. 959 Kisekini Adjudication Section and that the Defendant was unable to prove that the same belonged to him.

9. The trial  magistrate erred in law and fact when he brought  on board issues of the Defendant to be declared  to a trespasser in the plaint when the Plaintiff did not intend to do so in his plaint and  failed to consider that the Defendant in  his evidence  admitted that  he was  a trespasser  and even  cut down trees on suit land that is plot number  959 Kisekini Adjudication Section.

5) I have carefully read  the submissions that were filed by the parties herein.

6) This being a first  appeal, the  court must reconsider the evidence,  evaluate it  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 this respect (See Selle V Associate  Motor  Boat Co. Ltd  [1968] EA123 at page 126 letter  H and Williamson Diamonds Ltd V Brown [1970]EA 1 at pages  15 and  16 letters 1 to c).

7) In his evidence before the Subordinate Court, the Appellant who was PW1 told the court that he was the Proprietor of plot no. 959 Kisekini Adjudication Section. He said that he has a letter confirming ownership (Pex no. 1) from District Land Adjudication Settlement Officer. He went on to say that  he has  constructed  his home on the land which he started using  in 1981 and solely relies on it.  That on the 24th March, 2009, the Respondent trespassed into the land and started to cut down trees to make timber. He said that he Respondent was stopped by the court.  The Appellant said that he had a consent (pex no.2) from the District Lands Adjudication and Settlement Officer.   That he hired   the services of the forester,  Kilome/Kilungu Division  who assessed the value of the   damaged trees as Kshs. 237,534 as can be seen from the reports dated 25th March, 2009 and 20th April, 2010 produced   as Pex no. 4  and 5 respectively.  It was   also his evidence that the Respondent does not reside in the suit land.

8) In his evidence in cross-examination, the Appellant told the trial court that the land has a boundary and that it did not border that of the Respondent.   On being shown a map showing the boundary as place by Kilungu Court in land case number 108/1956 (Dex No. 1) the Appellant told the trial court that he had never seen the   said map.  He went on to say that he planted some of the trees while others were planted by his father.  He said that   he knew nothing about the proceedings in CC144/1970 Nguu Nthiwa V Nzuki  Muithya.

9) The Appellant called John Muia Matheka (PW2), Godwin Mutembei Mbiuki (PW3) and Kennedy Kamau  Thoigo(PW4)  as his  witnesses.

10) John’s (PW1) evidence in chief before the trial court   was plot number 959 belongs to the Appellant who inherited it in 1997 from his father. That he and the Appellant witnessed the Respondent who does not reside on the plot cut down trees.

11) His evidence in cross-examination was that from the map (Dexno.1), the trees are planted on a portion given to the Appellant’s uncle.

12) Godwin’s (PW3) evidence in chief before the trial court was that he was the Land Adjudication  Officer   Makueni/Kilungu District.  That plot no. 959 Kisekini Adjudication   Section is registered in the name of the Appellant as a sole proprietor.  The witness went on to say that he wrote a letter (Pex. No 1) to confirm that the Appellant owns the plot. He added that he also wrote another letter (Pex No. 2) to give consent to the Appellant to file this suit.

13) His evidence in cross-examination was that the plot was allocated to the Appellant by the Demarcation Officer. He said that the sketch map (Dexno. 1) is from the court and was “made” in 1956.  That he could not be able to point out which is plot no. 959 Kisekini Adjudication Section. He said that   the judgement in Dex No.1 was entered in favour of the Respondent.

14) On being cross-examined by the trial court, Godwin (Pw3) told the court that the information in the register is gotten after declaring an area an adjudication section upon which notice for demarcation   is given.  That after demarcation on PID (aerial maps), each plot is allocated a number and the name of the proprietor.  That the information is then transferred to the Demarcation book together with the sketches.  That objectors have 14 days to file a committee case.  That upon  lapse of  days, the Register is published and  60 days notice is given for any person  affected  to file an objection. That after the expiry of 60 days without objection being filed, the process becomes final that  the plot which was subject of the trial was at the stage of  hearing Arbitration Board cases. That PID maps  were available  even though  he  had  not been asked to produce it.

15) After the cross-examination by the court,  both  the Appellant  and the Respondent were given a  chance to further  cross-examine the witness.

16) Kennedy (PW4) told   the trial court that he was a Forester Mukaa District. That  he holds  a diploma in Forestry from Kenya  Forest  College Londiani and also a Bachelor  of Science Degree in Forestry  from  Moi University. He said that after the Appellant reported on 25th March, 2009  that  his trees  had been damaged, he  sent his assistant to go and carry out the assessment on the trees  that were in plot  no. 959 Kisekini Adjudication Section. That the witness made a report on the trees damaged (Pex no. 4) that the total value of damaged trees was Kshs. 237,534/. That when he visited the plot, he assessed the damage at Kshs.  437,409/50.

17) His evidence in cross-examination was that he could not be able to tell who was the owner of the trees.

18) On the other land, the Respondent’s evidence who testified as DW1 was that he shares a common boundary with the Appellant. That the boundary was in place in the year 1956.  He produced a map (Dex no. 1) which shows the boundary that was placed  by the Kilungu Court  in land  case no. 108/1956.  That parties to the case included his late father, Nguu Muithya. That in another  case no 144/1970 Nguu  Muithya V Ndangili Muithya, judgment was delivered   in favour of the Plaintiff  with costs.   That there  was case  No. 3 of  1975 Nzuki  Muithya  V Nguni Muithya whose  determination   was in favour  of the Defendant    as can be seen from the judgment  (Dex no.3) delivered  on 15th January, 1975. That   there was another case being no.  L.3/1973 which was  pending before  the court referred  it to the Tribunal. That the tribunal in turn referred it to a panel of elders who ordered him to administer traditional oath to show that the portion of land was his and he took the oath in 1984.  That he is still in possession of the portion and was surprised to be sued.

19) His evidence in cross-examination was that plot no. 959 Kisekini is his and is the land where he has planted trees.  He said that he cut down his trees and sold them for a figure he cannot remember. That he has  no document of ownership of the plot no. 959.  That the map (Dexno. 1) had no plot number. That the judgment (Dex no. 2) which involved his late father Nguu Muithya or Nguu Nthiwa has no plot number.  That he had not obtained any grant to inherit his father’s property.  He said that the Appellant has no house in the suit land.

20) The Respondent called Francis Muumbi Mutungi (DW2) and Martin Muthini Mwoki (DW3) as his witnesses.  The two told the court that both the Appellant and the Respondent share a boundary.  Francis (DW2) went on to say that the suit land belongs to the Respondent.

21) Francis (DW2) told the court in his evidence in cross-examination that he was present when the boundary was placed in 1956. He and Martin (DW3) told the court that they saw the Respondent cutting down trees which were his property.

22) In his judgment  the learned  Senior Resident Magistrate  held that;

“According to the plaint, the Plaintiff avers that he is the registered owner of plot number 956 Kisekini Adjudication Section. In his prayers he prays to be declared the owner and entitled to possession of plot no. 959 Kisekini Adjudication Section. This was a clear departure from the main pleading as contained in paragraph 3 of the plaint. So I cannot tell which, plot the Plaintiff wants to be declared the owner. There was no evidence led to the effect that the Plaintiff is the owner of plot number 956.  Evidence was led that the Plaintiff is the owner of plot no. 959. ”

23) The  learned  Senior Resident Magistrate went on to  add that;

“… The issue of plot no 959 is not properly brought up.  It will therefore be strange to decide on this issue.  It therefore follows that I cannot declare the plaintiff as the owner of plot no.  959 Kisekini Adjudication Section an issue he did not aver to in the plaint.”

24) The  learned Senior  Resident Magistrate   went on to hold that,

“ … Unless the Plaintiff first asserts his rights that he is the owner of plot no.  959 Kisekini Adjudication Section, a perpetual injunction cannot issue the Plaintiff having failed to assert his right aforesaid, his prayer for injunction also fails. For this prayer to be issued, the Defendant must first be declared trespasser. Despite averring as such, there was no prayer for a declaration to that effect.”

25) The learned Senior  Resident  Magistrate further  held that;

“Unless the Defendant is declared as a trespasser, the acts done on the land cannot be deemed to be unlawful. It was alleged that the Defendant cut down trees whose value the Forester assessed at Kshs.237, 534 and also Kshs. 437,409/50.  I cannot make any award because the parent prayer did not succeed.  Despite this, I would not have made this award in view of the two contracting reports by the Forester. This court found itself at a loss on which report to adopt.”

26) The Appellants  counsel submitted that the  trial court should  have  administered  substantive justice instead of  dealing with the technicality of what he termed as an error in the plaint  where the Appellant  has  stated that his land  parcel is  956 but gone ahead to seek orders in respect  of  plot  number  959.

27) The counsel relied on the case of Zacharia Okoth  Obado  V Edward   Oyuga &  3 others [2014]eKLR. It was also the counsel’s submissions should have awarded damages based on the first report that the Appellant produced.

28) On the other hand, the Respondent’s counsel was of the view that the learned Senior Resident Magistrate’s judgement is well reasoned and based on evidence on record.

29) Whereas I agree  that Article 159(2) (d) of the Constitution  behooves  courts to administer  justice  without undue  technicalities, it was incumbent   upon the Appellant to reconcile  the apparent  contradiction in paragraph 3 of his plaint which  shows the plot  as  956 and  the other paragraphs which  talk of  parcel number  959.  Parties are bound by their pleadings.  If the averment in paragraph 3 of the Plaint was an error as claimed by the Appellant’s counsel, then the Appellant ought to have taken the earliest opportunity to clear the air on the same.  In my view the learned Senior Resident Magistrate cannot be faulted for declining to make a finding on the issue of parcel number 959.

30) The Appellant was also under an obligation to inform the trial court that he was relying on first report (Dex no. 4) which gave the value of damaged property at Kshs.  237,534/ and not the second report that indicated that the value of the damaged trees was Kshs.  437,409/50. The Appellant ought  not to have produced the two contradictory  reports and expect  the court   to decide  on which one to rely on.

31) The upshot of the foregoing is that the learned Senior Resident Magistrate cannot be said to have erred in law and in fact in arriving at the decision that he made on the 23rd March, 2011.  In the circumstances, I hold that the appeal herein lacks merit and I proceed to dismiss it with costs to the Respondent.

Signed, Dated and Delivered at Makueni this 6th Day of September, 2019.

Mbogo C.G

Judge

In the Presence of;

Mr. Nyabuto  holding  brief  for Mr. Ombuga  for the  Respondent

No appearance  for the Appellant

Ms  C. Nzioka  Court Assistant

Mbogo C.G, Judge

6/9/2019