Jonathan Muthiani,Pauline M. Vaita,Paul O. Bunyasi,Silvester Musera Osodo,Francis Maina,Rachel Njeri Ngigi,Irene Ngina Muinde,William O. Odhiambo,Robert K. Mutai,Rabecca Opondo,Solomon O. Odep,Benjamin Koyier,Andrew K. Psiwa,Samuel Njiru,Felix Ndambuki Kimeu,Benjamin O. Buyu,Charity Njeri Irungu,Juliana Mwose,Rosemary Kimuyu, Eric M. Nyamu,Lucy Gakii Kimathi,Moses M. Motokaa,Lucia W. Wamutitu,Pamela Nyaboke Marendi,William Monyancha Getuno,Nathan Kitio Psiwa,Jane T. Morintat,Susan Wanjiru & Sammy G. Muchiri v Legal Representative of the Estate of Juliana Wavinya (Deceased),David N. Nzimo (Sued As Beneficiary to the Estate of Juliana Wavinya – (Deceased),Henry Mutiso,Ndambuki Mwangangi Ivili (Legal Representative of the Estate of Mwangangi Ivili,Syomiti Mwangangi,Scolastica Mutete Kilonzo,Times View Properties Limited & Syokimau Farm Limited [2018] KEELC 4442 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 176 OF 2014

JONATHAN MUTHIANI......................................1ST PLAINTIFF

PAULINE M. VAITA..............................................2ND PLAINTIFF

PAUL O. BUNYASI................................................3RD PLAINTIFF

SILVESTER MUSERA OSODO.......................... 4TH PLAINTIFF

FRANCIS MAINA..................................................5TH PLAINTIFF

RACHEL NJERI NGIGI.......................................6TH PLAINTIFF

IRENE NGINA MUINDE......................................7TH PLAINTIFF

WILLIAM O. ODHIAMBO...................................8TH PLAINTIFF

ROBERT K.  MUTAI..............................................9TH PLAINTIFF

RABECCA OPONDO...........................................10TH PLAINTIFF

SOLOMON O. ODEP...........................................11TH PLAINTIFF

BENJAMIN KOYIER...........................................12TH PLAINTIFF

ANDREW K. PSIWA ...........................................13TH PLAINTIFF

SAMUEL NJIRU...................................................14TH PLAINTIFF

FELIX NDAMBUKI KIMEU..............................15TH PLAINTIFF

BENJAMIN O. BUYU..........................................16TH PLAINTIFF

CHARITY NJERI IRUNGU................................17TH PLAINTIFF

JULIANA MWOSE..............................................18TH PLAINTIFF

ROSEMARY KIMUYU........................................19TH PLAINTIFF

ERIC M. NYAMU.................................................20TH PLAINTIFF

LUCY GAKII KIMATHI.....................................21ST PLAINTIFF

MOSES M. MOTOKAA......................................22ND PLAINTIFF

LUCIA W. WAMUTITU......................................23RD PLAINTIFF

PAMELA NYABOKE MARENDI......................24TH PLAINTIFF

WILLIAM MONYANCHA GETUNO...............25TH PLAINTIFF

NATHAN KITIO PSIWA....................................26TH PLAINTIFF

JANE T. MORINTAT..........................................27TH PLAINTIFF

SUSAN WANJIRU...............................................28TH PLAINTIFF

SAMMY G. MUCHIRI.......................................29TH PLAINTIFF

VERSUS

THE LEGAL REPRESENTATIVE OF THE ESTATE OF

JULIANA WAVINYA (Deceased).......................1ST DEFENDANT

PROF. DAVID N. NZIMO (Sued as beneficiary to the Estate of

JULIANA WAVINYA – (Deceased)...................2ND DEFENDANT

HENRY MUTISO...............................................3RD DEFENDANT

NDAMBUKI MWANGANGI IVILI (legal representative of the

Estate ofMWANGANGI IVILI........................4TH DEFENDANT

SYOMITI MWANGANGI.................................5TH DEFENDANT

SCOLASTICA MUTETE KILONZO.............6TH DEFENDANT

TIMES VIEW PROPERTIES LIMITED........7TH DEFENDANT

SYOKIMAU FARM LIMITED........................8TH DEFENDANT

JUDGMENT

1. In the Plaint dated 18th November, 2014, the Plaintiffs averred that the 8th Defendant was the registered proprietor of L.R. No. 12715/158; that by virtue of shareholding in the 8th Defendant’s company, Mwangangi Ivili (deceased)was allocated the suit land but passed on before the transfer could be effected in his favour and that on 2nd May, 2008, the 3rd to 6th Defendants transferred their beneficial interests in the suit land to the 7th Defendant.

2. According to the Plaintiffs, the 7th Defendant sub-divided the suit land and sold different portions thereof to the Plaintiffs; that the Defendants have refused to transfer the said portions to them and that they are genuine and bona fide purchasers of different portions of the suit land.

3. Although all the Defendants were served with Summons to Enter Appearance by way of advertisement in the Standard newspaper of 27th March, 2015, they neither entered appearance nor filed a Defence.

4. The 1st Plaintiff, PW1, informed the court when the 3rd, 4th, 5th and 6th Defendants sold their beneficial interests in the suit land to the 7th Defendant, the 7th Defendant sub-divided the land and sold the sub-divisions to the Plaintiffs.

5. It was the evidence of PW1 that they paid the agreed purchase price but the Defendants have declined to Transfer the suit land to them.

6. According to PW1, Juliana Wavinya (deceased) illegally alienated the suit land which had been allocated to Mwangangi Ivili (deceased); that the 7th Defendant having been paid a substantial amount of the purchase price has been evasive in following up with the transfer of the suit property and the Plaintiffs are genuine and bona fide purchasers of different portions.

7. The Plaintiffs’ advocate filed submissions which I have considered.

8. The evidence produced by the Plaintiffs shows that L.R. No. 12715/158 measuring approximately 5 acres was registered in favour of Syokimau Farm Limited, who, according to the grant, transferred the land to Juliana Wavinya on 30th June, 1992.

9. According to the Plaintiffs, the suit property should have been transferred to Mwangangi Wavinya and not Juliana Wavinya as indicated in the grant.

10. Indeed, the Plaintiffs produced the letter dated 25th November, 2004 by Syokimau Farm Limited in which the said company stated that the land should have been registered in the name of Mwangangi Ivili who was their member number 328.  The legal representatives of the late Juliana Wavinya have not denied that the said land was either fraudulently or by mistake registered in favour of Juliana Wavinya.

11. PW1 informed the court that the legal representatives and the beneficiaries of the late Mwangangi Ivili transferred their interests in the suit land to the 7th Defendant, who sub-divided the land into several portions. PW1 produced in evidence the sub-division plan showing the sub-divisions that were sold to the Plaintiffs by the 7th Defendant.

12. PW1 also produced in evidence the Sale Agreements that the Plaintiffs entered into with the 7th Defendant in respect of the said sub-divisions, which, it would appear, have not been surveyed.

13. The Defendants have not controverted the above averments by the Plaintiffs. Indeed, the 7th Defendant has not denied that after purchasing the suit land, it sub-divided it into several portions and sold the said portions to the Plaintiffs.

14. As was held by the Court of Appeal in the case ofChase International Investment Corporation and Another vs. Laxman Keshra & others (1978) KLR 143, if the circumstances are such as to raise equity in favour of the Plaintiffs and the extent of the equity is known, and in what way it should be satisfied, the Plaintiffs are entitled to succeed.

15. The Plaintiffs have shown by way of evidence that they purchased the portions of land in dispute and have even taken possession of the same.  They are therefore entitled to be registered as the proprietors of the land.

16. For those reasons, I allow the Plaint dated 18th November, 2014 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF MARCH, 2018.

O.A. ANGOTE

JUDGE