MONICA NJOKI NDEGWA v MARY NJERI KAGUONGO & 2 OTHERS [2007] KEHC 2344 (KLR)

REPUBLIC OF KENYA

HIGH COURT AT NYERI

Civil Case 114 of 1991

MONICA NJOKI NDEGWA………………........….….……………………….PLAINTIFF

Versus

MARY NJERI KAGUONGO…………..……..................…………….1ST DEFENDANT

PETER KARANI KAGUONGO……………......................……………2ND DEFENDANT

BEN MARU MWENJE………………………….......…..………………3RD DEFENDANT

RULING

The background of this case has had its own twists and turns since it was filed.  When the case was first filed in this court it was referred to the Tribunal whose award was made judgment of this court by an order of 23rd July 1992.  The parties by consent set aside that judgment and consented to this matter being heard and determined by the court.  Again by consent on 23rd October 1996, the matter was referred to the Land Dispute Tribunal Kirinyaga District.  Thereafter the court record does not show what became of that Tribunal hearing until the 2nd Defendant made the application presently before court, which is by way of Chamber Summons dated 4th June 2001.  The Applicant by that application seeks that the court would enter judgment in this case in terms of the Tribunal award. The Applicant also seeks that the Plaintiff/Respondent be ordered to transfer half share of the suit property which is MWERUA/KANYOKORA/117 to the Applicant on his own behalf and on behalf of his two brothers who form the family of the 1st Defendant who is now deceased.  The Applicant also sought that the Plaintiff would be ordered to sign all the requisite documents for the transfer of the half share of the said property.  The application is supported by the 2nd Defendant’s affidavit.  He stated in that affidavit that after the matter was transferred to Kirinyaga District Land District Tribunal the Tribunal delivered its judgment on the 7th November 1997.  That the essence of that judgment was that the suit property be shared between the Plaintiff and the 1st Defendant in equal shares.  The Tribunal also ordered that the 1st Defendant would hold the said land on condition that the same would not be sold without the consent of the family.  Annexed to that affidavit is the death certificate of the 1st Defendant which shows that she died on 2nd April 1998.  The Applicant did not annex to the application the judgment of the Tribunal.

The application was opposed by the Plaintiff who swore an affidavit in opposition.  The Plaintiff in opposition stated that the Tribunal ought to have filed their judgment in this court within 30 days of referral.  As stated before, this matter was referred to Kirinyaga District Land District Tribunal by consent of the parties which consent was made an order of the court.  I have noted that consent and I cannot find a condition therein that the judgment of the Tribunal was to be filed within 30 days of referral.  Indeed what I find is that there was a letter written by the Deputy Registrar of this court to that Tribunal referring this dispute to them and in that referral letter the Deputy Registrar on his own motion indicated that the judgment of the Tribunal was to be filed within 30 days.  It does, however, seem that the judgment of that Tribunal has never been read by this court.  That as it may be, again, looking at the consent there was no requirement for the judgment to be read.

The Plaintiff in opposing the present application stated that the Land Dispute Tribunal Act requires that every award be filed in court.  That is correct but from the reading of Section 7 of the Act that requirement is restricted to the Magistrate’s Court.  In further opposition the Plaintiff stated that one of the panelists died before the judgment of the Tribunal was written.  In support of that the Plaintiff annexed a death certificate but it is important to note that the death certificate referred to Isaiah Karani Kahiti whereas the panelist in the judgment is shown as Karani Kahiti.  It is not clear whether those names refer to one and the same person.  The Plaintiff in her replying affidavit did annex the judgment of the Tribunal which the Applicant had failed to annex.  After that judgment was read by the Tribunal the Plaintiff intimated that she was dissatisfied with the same and that she intended to file an appeal at the Provincial Appeals Committee.  On the 1st Defendant passing away the Plaintiff withdrew that appeal.  The Plaintiff in her replying affidavit stated that subsequent to the reading of that judgment by the Tribunal she sub-divided the suit land and sold some portion of it for which she has already carried out transfer.  It ought to be noted that apart from bare statement to that fact there is no evidence of sale or sub-division of the suit property.  The Plaintiff curiously claimed in her replying affidavit that the Applicant is not a party to this suit and that therefore the application is misconceived.  I am not sure what the Plaintiff meant by this ground of opposition because it is clear that from inception it was her who sued all the defendants who include the Applicant as the 2nd Defendant.  The Plaintiff by annexing the judgment of the Tribunal in a way cures the Applicant’s application.  The Plaintiff in annexing that judgment, she does not deny that it was not the judgment of the Tribunal to which she consented that this matter be referred to.  I find that in the interest of justice that judgment ought to be made the judgment of this court and I do not find an impediment to the fact that the 1st Defendant has since passed away.  What is pertinent to note is that the 1st Defendant passed away after the Tribunal delivered its judgment.  To give effect to the judgment would be in compliance with the consent of the parties herein which was made an order of the court dated 23rd October 1996.

Accordingly the ruling of this court is that the judgment of the Land Dispute Tribunal at Baricho Tribunal Case No. 23 of 1997 annexed to the Plaintiff’s Replying affidavit sworn on 15th October 2001 and filed in this court on 29th October 2001 be and is hereby made the judgment of this court.  Further the Plaintiff is hereby ordered to sign all documents to put into effect the transfer in accordance to that judgment.  The 2nd Defendant is awarded the costs of the Chamber Summons dated 4th June 2001.  Orders accordingly.

Dated and delivered at Nyeri this 6th day of July 2007.

MARY KASANGO

JUDGE