Martha Macharia & Mumbi Macharia v Kamau Macharia [2020] KEELC 3375 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC APPEAL NO. 20 OF 2018

(FORMELY CIVIL APPEAL NO 12 OF 2004)

MARTHA MACHARIA.......................................................................1ST APPELLANT

MUMBI MACHARIA.........................................................................2ND APPELLANT

VERSUS

KAMAU MACHARIA.............................................................................RESPONDENT

(An appeal from the judgment of the Senior Principal Magistrate’s Court at Nakuru,

Nicholas O. Ateya Esq., dated the 1st December 2003 in CMCC No.1195 of 2001)

J U D G M E N T

1. This is an appeal against the judgment of Nicholas O Ateya Esq Senior Principal Magistrate delivered on 1st December, 2003 in Nakuru CMCC No.1195 of 2001. In the suit before the subordinate Court the respondent claimed ownership of land parcel Nakuru Municipality Block 2/752 (the suit property) and sought the eviction of the appellants therefrom and an order for payment of mesne profits. The appellants denied they were in unlawful  occupation of any house on the suit property owned by the plaintiff  the Respondents in this appeal and asserted that the land belonged to their late father and that they were in occupation as beneficiaries of their late father’s estate in equal right as the  plaintiff.

2. After the learned trial magistrate heard the case he entered judgment in favour of the respondent holding that the suit property belonged to the respondent and that the appellants had no right to it. The trial magistrate ordered the appellants to be evicted from the suit property and directed that the appellants pay mense profit of Kshs5,000/= per month from  date of filing  the suit until the date of their  eviction.

3. The appellants being dissatisfied and aggrieved by the judgment appealed to this Court and vide a Memorandum of Appeal dated 12th November 2004 set forth the following grounds of appeal:

1. The learned Magistrate erred in fact and in law by holding that the Appellants could not be beneficiaries  of the  pieces of land in dispute  and the rental houses.

2.  The learned trial Magistrate erred in law and fact by failing to appreciate evidence of the appellants.

3.  The learned trial magistrate erred in law and fact by accepting all the prayers in the judgment claimed by the Respondent.

4.  The learned trial magistrate erred in fact and in law by failing to deliver a reasonable judgment based on evidence adduced before him.

5. The learned trial Magistrate erred in Law by deliberating a matter which even the evidence produced during the hearing showed clearly that the appellants were genuine.

6.  The learned trial Magistrate erred in law and infact by arriving at concession that the Respondent had proved his case on a balance of probability

4. As is the norm  this being  a first  appeal this Court is obligated to reevaluate  the evidence presented before the  lower  Court to determine whether the lower Court’s determination/decision  was justified having regard to the evidence. In its evaluation of the evidence this Court is entitled to come to its own conclusion but the Court has to bear in mind  that  it had  no opportunity  to see the witnesses when they testified to assess their demeanor. This Principle was well enunciated in the case of  Selle & Another –vs-  Associated  Motor Boat co. Ltd & Others (1968) EA 123 where  the Court of Appeal stated  thus:-

“… this Court  is not  bound necessarily to accept the findings of fact by the Court below. An appeal to this Court---is by way of retrial and the Principles upon which this Court  acts in such  an appeal  are well  settled. Briefly  put they’re 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 this respect …”

5. The seven grounds of appeal set out in the appellant’s memorandum of appeal basically challenge the trial Magistrate’s evaluation and findings of fact on the basis of the evidence presented before him. The grounds of appeal therefore can be conveniently considered together. Before making an assessment whether or not the trial magistrate’s decision was justified and/or well founded. It is necessary to review and consider the evidence that was before him.

The Evidence

6. The Respondent who was the plaintiff before the lower Court testified that he was the registered owner  of the suit property .It was  his evidence that he was given the property by his father  in 1992. He was registered as owner on 15th December 1992 and was issued with a title deed. His father died in 1998. The Respondent stated that he had developed rental houses on the suit property. He stated his father had allowed one Wanjugu  Wa Ndegwa  mother of the appellants to  occupy  one of the houses  on  his ( Respondent’s) plot. He stated the Appellants mother was not married to his father. He said her husband known as Mbuthia was residing in Nyeri. He stated the Appellants were not residing in his plot with their mother but moved into the plot in 2001 after their mother died. The respondent stated the appellants refused to vacate from the plot after the funeral of their mother. He stated he would have been renting the house they were occupying then at Kshs.6,000/= per  month .

7. In cross examination the Respondent maintained he never knew the relationship between his father and the Appellants mother. He denied the appellants were his sisters. He stated the Appellants mother was not paying rent and he did not know why his father never asked her to pay rent .The Respondent stated that his father gave him plot No.752 as a gift and that he never paid any money for it. He further stated that the original plot was plot No.310 before it was subdivided to create plot Nos 751 and 752. He stated that plot No.751 belonged to his brother, Peter.

8. PW2 Daniel Wandiba was the respondent’s father’s brother and he testified that his brother, Macharia  Ikua had informed  him he was to subdivide his  plot No.310 into two portions for his sons, Kamau and Peter but stated he did not  know  when the subdivision was done.  He stated the Respondent’s father only had two wives .Nyambura and Wanjiru. He denied any knowledge of the appellants.

9. PW3 Jane Wanjiru in her evidence stated she had been a tenant in the suit property from 1966. She stated the property belonged to the Respondent’s father one Machari and that in1990 he subdivided the same between his sons Peter  Macharia and Kamau Macharia (respondent). She stated Wanjungu (appellants mother) was not a wife of the Respondent’s father.

10. The Appellants case before the lower Court was that they were daughters of Macharia Ikua and that  Wanjugu their mother was Macharia  Ikua’s (respondent’s father) third wife. Their evidence was that their mother had been residing on the suit land property as the wife of Macharia Ikua. The appellants stated they were occupying the houses on the property as of right as beneficiaries of their late father’s estate. They denied they were mere tenants in the suit property.

11. The 1st appellant Martha Macharia  in her evidence  affirmed  that Macharia  Ikua died in 1998 and that Kamau Macharia  was registered and issued title for plot No.752 on 15th December 1992. She also affirmed that plot No.752 was not included as one of the assets left by Macharia Ikua (deceased) in High Court Succ. Cause  No.146 of 2002. She further indicated their names were not listed amongst the beneficiaries  of the deceased estate.

12. The learned  trial  magistrate  upon evaluation of the evidence tendered before him came to the conclusion  that the Respondent was legally registered as the owner of land parcel Nakuru Municipality  Block 2/752and  found the Respondent’s claims against  the appellants established. The learned trial magistrate summed up his findings thus : -

“From the evidence  and the documents produced by both the plaintiff and the defendants, I am satisfied that Plot No.Nakuru Municipality Block 2/752 was duly registered in the name of the Plaintiff on 15th December 1992 and the plaintiff obtained the title deed he produced herein as ( Exhibit No.10. This is further confirmed by the certificate of search produced by the plaintiff herein as (Exhibit No.2). So when the Plaintiff’s  father died in 1998  this plot had already  changed hands and was the property of the plaintiff. Therefore the same plot could not now form part of the estate of the deceased to be included in the succession cause in respect of the properties which were in the names of the father of the plaintiff at the time of death of the plaintiff’s father. There is no claim that the plaintiff obtained the Title Deed fraudulently and there is no Counterclaim from the defendants for the cancellation of this Title for any other valid  reason. I am therefore satisfied that Plot Number Nakuru Municipality Block2/752 lawfully is the property of the plaintiff  Kamau Macharia whether  the defendants are his half-sisters or  strangers is immaterial and does not affect the plaintiff’s title to this plot. I therefore find that the plaintiff has proved his claims against the defendants as required by the law.”

13. Upon evaluation of the evidence presented  before the learned trial magistrate  there is clear evidence  that before her death, the mother  of the appellant was residing  in one of the rental units within plot  No.752 and had so resided over a considerable length  of time. She was residing on the property without paying any rent courtesy of the Respondent’s deceased father who was the owner of the original plot No.310 before it was subdivided to create plot Nos.751and 752. However the relationship between the Respondent’s father and the Appellants mother was unclear. The appellants position was that their mother was a wife of Macharia Ikua father of the respondent. The respondent was emphatic that she was not a wife of his father. There was no proof that the appellants mother was indeed a wife of Macharia Ikua. No evidence was led to prove a customary Kikuyu marriage before the learned trial magistrate and the magistrate never made any finding on the issue.

14. The evidence led before the learned trial magistrate further showed that the Respondent was registered   as owner of land parcel Nakuru Municipality Block 2/752 on 15th December 1992 and held title to the land as illustrated by the copy of title, search and abstract of title (green card) produced in evidence. The respondent explained that he was given the plot by his father after he subdivided the original plot No.310 into two portions. The other portion 751 was given to his brother Peter. The appellants contention that the transfer and registration of plot No.752 in the name of the respondent was fraudulent was not borne out by any evidence. The abstract of title (green cards) for land parcels 751 and 752 tendered in evidence show that the plots were created out of the subdivision of plot No.310 and that Macharia Ikua (deceased) was registered  as  the owner  of plot No.751 on 15th December 1992 while Kamau Macharia (respondent) was registered  as the owner of plot No. 752. The deceased Macharia Ikua had every right to subdivide his plot No 310 and to give to his son a portion of the same if he wished. The evidence of the transactions  as  per  the abstract  of title are consistent with the Respondent’s evidence that when his father subdivided his plot  he gave to him one portion being plot No.752.

15. There is no evidence of any fraudulent dealing by the respondent to be registered as owner of the suit property. The appellants appeared to place premium on the fact that consideration of Kshs.70. 000/= was indicated on the abstract of title in alleging fraud. The Respondent explained that he was gifted the property by his father and that he never paid for it. It is unfortunate that the instruments of transfer that was used to process the transfer in favour  of the  Respondent from his father was not availed  in evidence. It is noteworth, however, that such documents are lodged with the Land Registrar and remain  in his custody. The Land Registrar was not called as a witness to produce any documents in his custody. The Court  however  takes  judicial  notice that transfer by way of “gift” would not be tax exempt and that the transfer is liable  to be assessed stamp duty on  the market  value  of the property and therefore  it is possible the consideration of Kshs70,000/= was the value  assessed by the collector of Stamp duties  on the instrument of transfer .

16. Be it, as it may be, the appellants had not pleaded fraud in their defence and no particulars of fraud were pleaded as the law requires and no fraud was proved at all on the part of the respondent .

17. The learned trial magistrate in my view property found and held that the respondent was lawfully registered as the owner of land parcel Nakuru Municipality Block 2/752 and that as such  registered owner he had absolute and indefeasible rights of  ownership. His title could only be challenged if it was proved that he had obtained  the title fraudulently and it was shown that he was  party to such fraud.

18. In the Court below the appellants contended they were entitled to the suit land as beneficiaries of their late father’s  estate. The uncontroverted evidence was that  Macharia Ikua who the appellants alleged was their father, a  fact however  disputed  by the respondent, died in 1998 while the respondent was registered as owner  of the suit land in 1992. The evidence adduced showed that Macharia  Ikua transferred the property  to his son in 1992. The transfer was effected during the lifetime of Macharia Ikua and consequently the property could not form, part of his estate when he died in 1998 and in my view was rightly omitted as one of his assets liable for distributions to the beneficiaries of his estate in the succession case. Thus even if it was to found Macharia Ikua (deceased) was the Appellants father, land parcel Nakuru Municipality/Block 2/752 would not constitute part of his estate in intestacy the same having been devolved during the deceased lifetime.

19. The Respondent as the registered owner of the suit property was properly entitled to request the appellants to vacate from the suit property following the demise of their mother who had been allowed onto the property by the Respondent’s late father. The licence enjoyed by the appellants mother to occupy the plot ceased with her death and in my view could not be automatically transferred to the appellants. The respondent was entitled to assert his rights over his property which as observed did not constitute part of his late father’s estate through whom the appellants were staking claim. The Appellants had no valid claim over the property and therefore had no lawful reason to continue in occupation of the Respondent’s property.

20. I am therefore upon evaluation of the evidence and the record satisfied that the learned trial magistrate arrived at the correct  findings  on the facts and the law and there would be no basis  to fault his decision. The appeal is without any merit and the same is dismissed with costs to the respondent.

Judgment dated signed and delivered at Nakuru this 27th day of February 2020.

J M MUTUNGI

JUDGE