Mubea v Waudo & 2 others [2023] KEELC 22238 (KLR)

Mubea v Waudo & 2 others (Environment & Land Case 2012 of 1999) [2023] KEELC 22238 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22238 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 2012 of 1999

LN Mbugua, J

December 4, 2023

Between

Simon Kimondo Mubea

Plaintiff

and

Rita S Waudo

1st Defendant

Nairobi City County

2nd Defendant

National Land Commission

3rd Defendant

Judgment

1. “Whatever can go wrong will go wrong”, so goes the Murphy’s law. And in this case, things did go awfully wrong. It all started with allocation of the Nairobi City County owned houses in Woodley estate to individuals sometime in the year 1992. The plaintiff was a beneficiary of the said allocation vide a letter of allotment dated 24. 8.1992, specifically for the house identified as House No. 93 [58/3]. The plaintiff was subsequently registered as the proprietor of the suit house vide a lease dated 16. 4.1999 and was issued with title registered as LR No. 209/13539/20. That registration has since been cancelled.

2. On the other hand, the 1st defendant was a tenant of the 2nd defendant from 1970s todate, and she has apparently been in occupation of the suit house all the time.

3. The plaintiff filed this suit as against the 1st defendant vide a plaint dated 18. 10. 1999 seeking orders to have the 1st defendant evicted as well as an order for payment of monthly mesne profits. The 1st defendant opposed the suit through her statement of defence dated 15. 11. 1999. The plaintiff was to file an application seeking to strike out the said defence, and in a ruling by the Deputy Registrar dated 29. 2.2000, the application was allowed. An appeal to the High Court against the said ruling was not successful.

4. subsequently, the matter remained in the litigation arena as an undefended claim until year 2021 or thereabout in which period, the plaintiff took to the stand severally but for one reason or another, the matter was not concluded. Notably, litigation was pegged on a plethora of applications by the two parties. Further, there were proceedings which sprung up here there relating to the validity/invalidity of plaintiff’s title which impacted on the prosecution of this matter. To this end, it is pertinent to highlight some of these hurdles which choked the file for two decades like a Gordian knot.

5. As earlier stated herein, the defence of the 1st defendant was struck out way back on 29. 2.2000. On 24. 10. 2005, plaintiff gave his testimony for the first time. But the same was not finalized due to an objection on production of documents hence the hearing was deferred. Thereafter, the 1st defendant was to file an application dated 3. 2.2006 seeking orders to have the 2nd defendant joined in these proceedings. In a ruling delivered in year 2008, the application for joinder was dismissed, paving way for the plaintiff to give his testimony all over again, and he did so on 21. 6.2010, when the matter was put off for the plaintiff to call his second witness.

6. It emerged thereafter that the title of the plaintiff was cancelled by the Registrar of Titles on 26. 11. 2010 vide a gazette notice No. 15580/10/26/11/10. This prompted the 1st defendant to make an application for the striking out of the suit. The plaintiff in turn filed a Judicial Review case No. 30 of 2011 to quash that decision of the Registrar of titles, of which stay orders were issued on 23. 11. 2011. This turn of events led Mwera J (now retired) to comment on 14. 3.2011 when the matter was scheduled for hearing that, “ It looks like this matter is dogged with this and that”. In his ruling delivered on 7. 7,2011 relating to the application to strike out the suit, Judge Mwera urged the parties to be patient and await the out come of the Judicial Review matter, of which a decision in favour of the plaintiff was given on 6. 3.2013.

7. Another notable event is that when the plaintiff was being cross examined on 21. 6.2010, he admitted to the existence of a case No. HCCC 38/2006 where he had been sued by the 2nd defendant over the validity of his title. On 15. 12. 2020, the court noted that the aforementioned suit was stayed way back on 29. 5.2007 awaiting the finalization of this case.

8. The plaintiff’s case was to proceed all over again on 5. 12. 2014 before Nyamwea J (now Court of Appeal Judge) and the matter was even given a judgment date, but the Judge was transferred thereafter.

9. On 30. 11. 2017, the court gave directions for the case to start afresh. By then, counsel for the 1st defendant had intimated that there were new developments.

10. ELC JR NO. 41 of 2017; This suit is the one which changed the litigation landscape in this matter eventually leading to not only joinder of the 2nd and 3rd defendants, but the 1st defendant was also able to defend the suit. Apparently, the title of the plaintiff was again the subject of review proceedings by the National Land Commission culminating in the decision in a Gazette Notice No. 6862 of 2017 where the title of the plaintiff was adjudged as illegal. The plaintiff was back in court through the above mentioned Judicial Review matter.

11. The 1st defendant was to file an application dated 30. 4.2019 seeking orders for joinder of the 2nd and 3rd defendants as parties in these proceedings. On 3. 2.2021, the court was informed that the plaintiff was no longer opposing that application for joinder, hence the same was allowed, where the new parties were defined as interested parties, but they later converted to defendants.

12. On 20. 5.2021, plaintiff’s counsel indicated their intention to amend their pleadings so as to make a claim against the new parties.

13. The foregoing analysis is what led to the filing of an amended plaint dated 21. 10. 2021, and subsequently thereafter, all the other parties including the 1st defendant were able to file their respective pleadings/defences.

14. During the ensuing pretrial process, the parties filed their respective witnesses statements and documentary evidence, of which, the plaintiff indicated that the Judicial Review suit No. 41 of 2017 was dismissed on 26. 11. 2020. To this end, the plaintiff had abandoned his claim of ownership to the suit property.

15. Thus by the time the plaintiff took to the stand for the final time, on 18. 1.2023, his claim was more or less confined to the prayers for damages.

Case for the Plaintiff 16. Vide the amended plaint dated 21. 10. 2021, the plaintiff seeks the following orders;a.A declaration that the Plaintiff acquired the suit property known as LR No.209/13539/20 from the 2nd Defendant for valuable consideration without any notice of irregularity or want of authority of the 2nd Defendant.b.An order do issue directing the 3rd Defendant to unconditionally recall and/or revoke Gazette Notice No. 6863 of 17. 7.2017 vide which it revoked the Plaintiff’s title to the suit property so as to restore the Plaintiff’s title in respect thereto.c.An order of ejectment of the 1st Defendant from the suit premises known as LR No. 208/13539/20 and vacant possession thereof to be delivered to the Plaintiff.d.An order for payment of monthly mesne profits, the quantum thereof to be determined by this Honourable Court, from the month of June, 1999 until vacant possession of the suit premises is delivered to the Plaintiff;e.In the alternative to order (b) (c) and (d) above;i.An order for a refund of the said sum of ksh.1,110,000/= with interest at 14% p.a from 24. 8.1997 when the same was paid until payment in full.;ii.General damages and compensatory damages for loss of bargain, the quantum thereof to be determined by this Honourable Court;iii.Special damages of Ksh.88, 755/= with interest at the rate of 14% p.a from 25. 6.1998 until payment in full.f.Costs of this suit.g.Interest on (d), (e), (ii) and (f) at court rates.h.Such other and/or further relief as this Honourable Court may deem fit and just to grant in the circumstances of this matter.

17. During the trial the plaintiff who testified as PW1 formally abandoned prayers b, c, d and g in the amended plaint.

18. The plaintiff adopted his witness statement dated 22. 3.2022 as his evidence and he produced the 22 items in his bundle of documents dated 22. 3.2022 as his Exhibits.

19. His case is that vide a letter of allotment dated 24. 8.1992, the Nairobi City Commission allotted to him House No. 93 [58/3] of which he accepted the offer vide a letter dated 2. 9.1992. He subsequently paid to the City Council ksh.1, 110,000/= as stand premium following which they executed a lease agreement dated 10. 3.1998 in respect of the suit premises and he was thereafter issued with the lease of the suit premises dated 16. 4.1999. Thereafter, his registration as owner of the property was effected at the Land Titles Registry at Nairobi as IR No. 80461/1.

20. To this end, he incurred a total sum of sh. 98 905 for the processing of the title including legal fees and stamp duty.

21. That thereafter, the plaintiff through his advocates informed the 1st defendant of the change of ownership with a request that she henceforth pays a monthly rent of ksh.35, 000/= to him or in the alternative she vacates the house. She never complied, prompting him to file this suit.

22. PW1 further contends that the Commissioner of lands and the Registrar of titles purported to revoke his title amongst others in Woodley estate vide Kenya Gazette Notice No. 15580, prompting him to file the suit JR ELC Misc. No. 30 of 2011 where he succeeded vide the courts decision of 6. 3.2013, and his title was reinstated, only for the 3rd Defendant to quash the title again vide the Kenya Gazette Notice No. 6863 dated 17. 7.2017. That he also challenged the said revocation vide the suit JR ELC No. 41 of 2017 but the same was dismissed on 26. 11. 2020 and he did not appeal.

23. He states that the contention by the 1st Defendant that the 2nd Defendant had no authority to allocate houses in Woodley Estate is not true in that, the allocation was pursuant to a resolution by the city council made on 4. 8.1992. That pursuant to the said resolution, the Secretary/Town Clerk sought and obtained approval from the then Minister for Local Government.

24. That by the time the approval of 4. 8.1992 was nullified by a subsequent resolution of the council dated 22. 10. 1999, he had already obtained a title to the suit premises and hence the said withdrawal of approval was of no legal effect as far as his title to the suit premises was concerned.

25. He states that he paid City Council ksh.1, 110,000/= for the suit house, but the prices have skyrocketed and as per valuation report, the current market value of the said house is Ksh.75 million which sum he should be awarded as damages by way of loss of bargain.

26. PW1 also told the court that the Town Clerk was directed to refund money to those who had paid for houses in Woodley Estate, but no refund has ever been made to him.

27. He contends that he was not part of the resolution by council to sell houses at Woodley Estate.

28. In cross-examination, PW1 stated that the title to the suit parcel was revoked, he has accepted the court’s decision thereof and moved on, thus he no longer has any interest in the suit property and he is not claiming it from the 1st Defendant. He however denied being involved in any irregularities in the allocation of the suit house.

29. He stated that he did not apply for a refund because his stand was that the revocation of the title was unprocedural, but he has since changed his mind.

30. When re-examined, PW1 reiterated that he acquired the suit property as an innocent purchaser for value, and that he paid consideration of ksh.1 110,000/= and that the 2nd Defendant has been holding his money to date.

31. He reiterated that he abandoned all prayers in the plaint save (a) and alternative prayers including damages for loss of bargain.

32. The Plaintiff’s 2nd witness, PW2 was a valuer known as Hubert Mwangi Kamau who valued the suit premises at ksh.75 million. He produced the report to that effect as P. Exhibit 23. Case of the 1st Defendant

33. The 1st Defendant opposed the suit vide her statement of defence dated 23. 11. 2021. She denies allegations contained in the plaint but admits that she was a month to month tenant and still is a tenant of the 2nd Defendant to whom she continues to pay her monthly rent. She also argues that the Plaintiff’s claim is for frustration of a contract alleged to have been entered into in 1997, thus the cause of action is time barred under the Limitation of Actions Act.

34. During the trial 1st Defendant testified as DW1 and she adopted her witness statement dated 4. 4.2022 as her evidence. She produced the 18 items contained in her bundle of documents as D. Exhibit 1-18.

35. In a nutshell, she states that she has resided in the suit house No. House No. 93 (58/3) since 1970 when the same was rented out to her husband by the 2nd Defendant. That to date, she is the one who pays rent to the 2nd defendant.

36. She contends that Plaintiff’s withdrawal of the suit against her is not justified as he never gave her any written notice of such withdrawal of the claim.

37. DW1 went on to give a chronology of the various litigation platforms relating to the suit property, of which that evidence has already been captured by this court in the introductory part.

38. Upon cross-examination, DW1 reiterated that she has been a tenant in the suit house from the year 1970 and during that period, the houses in Woodley Estate were sold illegally. But the 2nd Defendant still recognizes her as their tenant to date and has never terminated her tenancy.

Case for the 2nd Defendant 39. The 2nd Defendant opposes the suit vide its statement of defence dated 14. 6.2022, where it denies allegations leveled against it by the Plaintiff. It contends that it owns the suit property for purposes of renting out. That when it learnt that houses at Woodley Estate including the suit house had been allocated unprocedurally, it passed a resolution on 14. 9.199 revoking the disposal of all the houses at the said estate, and that the illegal sale became a subject of criminal investigations and was cited in the Ndung’u report as property illegally surrendered to private individuals.

40. The case of the 2nd defendant was advanced by DW2, one Michael Kinoti, an assistant chief Housing Officer of the 2nd Defendant. He adopted his witness statement dated 14. 6.2022 as his evidence. He produced 3 documents in their bundle dated 14. 6.2022 as their Exhibits 1-3.

41. DW2 stated that the suit property was purportedly allocated to private individuals without a resolution to do so and without ministerial approval. He points out that the letter requesting for ministerial approval is dated 3. 9.1992 while the Plaintiff’s allotment letter is dated 24. 8.1992 and that there was no consideration. That the City Council passed a resolution on 14. 9.1999 revoking disposal of all the houses in Woodley Estate after the sale and transfer was found to be irregular. The allottees who were innocent purchasers were required to get a refund of any money paid to the 2nd Defendant.

42. Upon cross examination, DW2 stated that he is not opposing the refund of ksh.1, 110 000/=, he has nothing to say on the claim for special damages of Ksh.88755 to the Plaintiff, but he is not understanding the claim for general damages.

43. When re-examined, DW2 stated that the illegality in the sale of Woodley Estate houses was based on the fact that there was no ministerial approval to sell, thus the council nullified all transactions and made a resolution that purchasers should be refunded their monies, adding that the Plaintiff should have followed up on his refund.

Case for the 3rd Defendant 44. The 3rd Defendant filed a statement of defence dated 30. 11. 2021 denying the Plaintiff’s claim. It contends that the recommendation for revocation of the Plaintiff’s title in Gazette Notice No. 6863 of 17. 7.2017 was lawful and procedural and was upheld in ELC JR No. 41 of 2017, hence the issue of validity of the said title is res-judicata. The 3rd defendant did not adduce any evidence during the trial.

Submissions 45. The Plaintiff’s submissions are dated 14. 8.2023. He contends that he is an innocent purchaser without any notice of irregularity, and that he acted in good faith towards acquisition of the title to the suit property. To this end, the case of Dina Management Limited v County Government of Mombasa and 5 others [2022] eKLR was proffered.

46. He argues that his title which was issued under the Registration of Titles Act, Cap 281 (now repealed) could only be revoked as provided under the provisions of Section 60 thereof and not unilaterally as claimed by the 2nd Defendant. On this point, reference was made to the case of Republic v Registrar of Titles & 2 others Ex-Parte Redcliffe Holdings Limited [2016] eKLR.

47. On damages, reference was made to the cases of Millicent Perpetua Atieno Wandiga & another v John Chege [2013] eKLR, the Case of Board of Trustees National Social Security Fund v Judy Wambui Muigai [2017] eKLR as well as the case of Gami Properties Limited v National Social Security Fund Board of Trustees & Chief Land Registrar [2021] eKLR to buttress the position that damages for loss of bargain are recoverable in the event of breach of contract by a seller. Adding that the assessment is based on the difference in value of property from the date of breach and the date the purchase price is refunded.

48. The plaintiff also cites the case of Peter Umbuku Muyaka v Henry Sitati Mmbasu [2018] eKLR as well as the case of James Gichuhi Mutero & another v Lolldiga County Homes & Resort Limited & another [2019] eKLR to submit that it is entitled to general damages for breach of contract to the tune of Ksh. 75 million.

49. The 1st Defendant’s submissions are dated 23. 8.2023 where she avers that the suit against her is live despite the Plaintiff’s averment in his witness statement that he withdrew the same against her. She contends that the Plaintiff never had a valid legal title capable of being protected under Article 40 of the Constitution, thus the suit against her should be dismissed with costs.

50. In support of her case 1st Defendant relies on the cases of Beinjing Industrial Designing & Researching Institute v Lagoon Development Limited [2015] eKLR, Mpaka Road Development Co. Ltd v Abdul Gafur Kana t/a Anil Kapuri pan Coffee House [2001] EA 161, Mercy Nduta Mwangi t/a Mwangi Keng’ara & Co. Advocates v Invesco Assurance Co. LTD [2019] eKLR, Priscilla Nyambura Njue v Geovhem Middle East Ltd; Kenya Bureau of Standards (Interested Party) [2021] eKLR as well as the case of Musankishay Kalala Paulin v Director Criminal Investigations & 4 others [2022] eKLR.

51. The 2nd Defendant’s submissions are dated 5. 9.2023 and address the issues as to whether the Plaintiff is an innocent purchaser for value without notice of any irregularity. It was argued that it was incumbent upon the plaintiff to establish that he conducted due diligence before purportedly buying the suit property.

52. That the suit property was subject to the provisions of the Government Lands Act and that Local Government Act, but there was no compliance with the aforementioned statutes. In support of its case, the 2nd Defendant relied on the following cases; Katende v Haridar & Company Ltd [2008] 2 E.A, Francis Musyoki Kilonzo & another v Vincent Mutua Mutiso [2013] eKLR, Anne Mumbi Hinga v Gaitho Oil Limited [2019] eKLR as well as Republic v National Land Commission & another Ex parte Simon Kimondo Mubea;Nairobi City County (Interested Party) [2020] eKLR.

53. The 3rd Defendant filed submissions dated 5. 9.2023 arguing that no claim has been made against it, hence the suit against it should be dismissed with costs.

Determination 54. During the trial, the plaintiff abandoned his claim of ownership to the suit property including his entire case against the 1st Defendant. This came about after revocation of Plaintiff’s title by the 3rd Defendant vide Gazette Notice No. 6863 of 17. 7.2017, where the Plaintiff’s attempt to quash that decision vide Judicial Review Application ELC No. JR 41 of 2017 was unsuccessful.

55. The only pending issue for determination is whether the plaintiff has made a case to be declared an innocent purchaser, whether he is entitled to a refund of the purchase price, special damages as well as general damages for loss of bargain.

56. In the case of Munyu Maina v Hiram Gathiha Maina [2013] eKLR, the court of Appeal held that a proprietor of title has to demonstrate its root. While in Fanikiwa Limited v Sirikwa Squatters Group & 17 others Civil Appeal 45 & 44 of 2017 (Consolidated) [2022] KECA 1286 (KLR) (18 November 2022) (Judgment), the court held that;“We think the case for protection of the bona fide purchaser for value without notice is as valid as ever. That protection, however, does not extend to a purchaser who has failed to conduct due diligence or has been complicit in the misrepresentation, mistake, fraud or illegality that is said to vitiate the title”

57. From the word go, there were telltale signs that all was not well. By Plaintiff’s own evidence, the ministerial consent purportedly granted to the council to dispose off the suit property had not yet been granted by the time the plaintiff was allocated the suit property on 24. 8.1992. To this end, it is noted that the letter by the town clerk advising the minister of the resolution to dispose off the suit property is dated 3. 9.1992.

58. Vide a resolution by the 2nd defendant dated 14. 9.1999, the said entity nullified the sale of Woodley houses. And on 30. 9.1999, the minister for local Government affirmed this position. Less than a month later on 19. 10. 1999, this suit was filed. The purported nullification emanated from the 2nd defendant. Thus the logical sequence of events would have been the move by plaintiff to bring on board the offending entity (read 2nd defendant) at that early stage of the suit.

59. However, the conduct of the plaintiff in warding off any move to have the suit defended over the years appears to have been the Achilles heel in matters “good faith”. The plaintiff did not make any move to bring on board the 2nd defendant. Instead, he swiftly and successfully moved to have the defence of the 1st defendant struck out at the infancy stage of the suit.

60. Years later on 27. 2.2006 when the 1st defendant made an attempt to bring on board the 2nd defendant, the plaintiff resisted this move with his advocate addressing the court as follows; “If the City Council is allowed to come, What is it coming to tell the court since there is no defence, the defendant wants the City Council to come so as to assist the defendant……it is too late to bring this application”.

61. Another pointer that there was complicity and lack of due diligence on the part of the plaintiff is that the suit house was not free for the plaintiff to take up possession. The same was occupied by the 1st defendant and there is no evidence to indicate that the plaintiff took steps to ascertain that the tenancy between the plaintiff and the defendant had been terminated as at the point of acquisition.

62. In the case of Amos Kibata Githeko v Loise Gachiku Kinuthia [2021] eKLR, I rejected the claim of “an innocent purchaser” in the following words;“The other point for consideration is that the physical land itself was not free for plaintiff to take possession during the sale or even after the acquisition of the title.”

63. The none disclosure by the plaintiff that he was sued by the 2nd defendant in the case HCCC 38/2006 over the same suit property is still another pointer of lack of good faith. The plaintiff only mentioned this case when he was cross examined on 21. 6.2010. He informed the court that he had filed a defence, but the same has not been availed herein. Whereas parties are captains of their ship (their case), the court remains the master of the sea, hence issues affecting the smooth sailing of vessels ought to be brought to the attention of the court.

64. In the case of In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR, Gikonyo J had this to say on matters of good faith;“Needless to state that, in any judicial proceeding, parties must make full disclosures to the court of all material facts to the case …………………. This general rule of law emphasizes utmost good faith (uberimae fidei) from parties who take out or are subject of the court proceedings. The said responsibility is part of justice itself. Accordingly, non-disclosure of material facts undermines justice and introduces festering waters into the pure steams of justice; such must, immediately be subjected to serious reverse osmosis to purify the streams of justice, if society is to be accordingly regulated by law”.

65. The overall conduct of the plaintiff does not depict him as a bonafide purchaser, or a party who was acting in good faith. In such circumstances, I decline to award any general damages for loss of bargain.

66. However, I have no reason to doubt that the plaintiff paid the sum of Ksh. 1,110,000 to the 2nd defendant as stand premium. Indeed the 2nd defendant through DW2 indicated that they were not opposing the refund of this amount. The plaintiff desires that the said sum be awarded with interest of 14% from 24. 8.1997. However the same reasons as to why general damages have not been awarded herein would apply on issue of interests.

67. I must however add that in his own words, pw1 stated that “I did not apply for a refund because my stand was that the revocation was unprocedural but I have since changed my mind”. This implies that the plaintiff had all along resisted the refund, he didn’t claim the same when he filed the suit in year 1999. The claim was only brought forth during the 2021 amendments after the plaintiff abandoned his claim of ownership of the suit property.

68. The claim for special damages of sh. 88 755 is found to be merited as there are documents in support of the same.

69. On costs, I have taken into account that despite the two parties fighting gallantly for the last 24 years, the said litigation history must have taken a toll on their general well being. I also find that the status of the validity of plaintiff’s title only came to a conclusion on 26. 11. 2020 when the decision in ELC JR. No. 41 of 2017 was delivered, noting that earlier on, the plaintiff had successfully managed to have the cancellation of his title quashed in the case JR No. 30 of 2011.

70. I have also taken into account that the seedy deals of irregular allocation were birthed by officers of the 2nd defendant, but the said entity made deliberate steps to nullify that process at an early stage in year 1999. In that regard, I give orders that each party is to bear their own costs.

71. Final orders1. All the claims of the plaintiff are hereby dismissed save the refund of Ksh.1 110 000 and Ksh 88 755 special damages, to be paid by the 2nd defendant to the plaintiff. The said amount is to be remitted to the plaintiff within a period of 45 days failure to which interests shall start accruing on the said amount at courts rates.2. Each party is to bear their own costs of this suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4THDAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-J.P. Machira for PlaintiffS.M. Mwenesi for 1st DefendantKemunto holding brief for Michika for 2nd DefendantNandi Mohamed for 3rd DefendantCOURT ASSISTANT: BRIAN