Nyaga v Baimunya & another [2023] KEELC 15832 (KLR)

Nyaga v Baimunya & another (Environment & Land Case 141 of 2015) [2023] KEELC 15832 (KLR) (2 March 2023) (Judgment)

Neutral citation: [2023] KEELC 15832 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 141 of 2015

FO Nyagaka, J

March 2, 2023

Between

Phelister Mum Nyaga

Plaintiff

and

Nyaga Muchai Baimunya

1st Defendant

Daniel Mwiti M’arimi

2nd Defendant

Judgment

Brief Background 1. The Plaintiff and the 1st Defendant are wife and husband respectively. The 2nd Defendant was a friend of the family, and used to be a tenant to the business premises known as Plot No. 49 situate within Lodwar Town, that were registered in the name of and owned by the 1st Defendant. He did so until sometime in or about 2012 when he and the 1st Defendant entered into a verbal agreement to sell the said premises, and he started paying him the purchase price in instalments. Further, by 12/05/2010 when the agreement was reduced into writing, when he bought the said premises from the 1st Defendant and the balance of Kshs. 800,000/= being paid on 13/05/2010 but the acknowledgement thereto would be made on 24/06/2014. From the time of agreeing to purchase the premises, he ceasing to pay rent and proceeding to operate from then as owner. It is not in dispute that after buying the premises, he developed them extensively.

2. Trouble started when both went to transfer the same from the 1st Defendant’s name to the 2nd Defendant’s. At this point the records officer in charge of the Lands records of Turkana County, in Lodwar, demanded that it be shown by the Plaintiff that the 1st Defendant’s wife or family had no objection to the transaction. It was then that the Plaintiff indicated that she did not agree to the sale and also her children did not. The transaction could not be completed. Later, she decided to sue both her husband and the 2nd Defendant for the reliefs sought in the Plaint.

The Claim 3. By a Plaint dated 03/11/2015, the Plaintiff who described herself as the 1st Defendant’s wife, brought this suit on the same date. She averred that she got married to the 1st Defendant in the year 1968 and bore five (5) children to him. She pleaded further that at the time of marriage both she and her husband owned no properties. Further, that by their joint efforts they acquired the suit land herein, known as Plot No. 49, within Lodwar Town of Turkana County. Then they constructed a rental and business premises thereon and between 1974 and 1995 they used to operate a shop in the premises. It was her claim that when their business went down, she went back to Meru, and that was in the year 1995.

4. The Plaintiff’s further claim was that in the year 2012, the 1st Defendant, without any consultation with her, sold the plot and premises to the 2nd Defendant. Her further claim that the sale was done without spousal consent. The transaction was to her and her children’s disadvantage. She then prayed for the cancellation of the agreement of sale between the defendants for want of spousal consent and the reverting of the property back to the 1st Defendant to hold it on his behalf and that of the Plaintiff and the children. Specifically, she prayed for (a) an order of cancellation of the sale agreement for Plot No. 49 Lodwar Township entered between the 1st and 2nd Defendants for being null and void as the Plaintiff’s consent was never obtained, (b) costs of the suit and (c) any other relief that this Court may deem fit to grant.

5. Together with the Plaint, she filed her witness statement undated and copied of two documents, namely, the demand letter issued by her Advocate and the 1st Defendant’s response thereto through their then advocates. The Plaintiff would later adopt the witness statement as her evidence in-Chief at the hearing. Later, on 23/11/2015, the Plaintiff filed a further List of Witnesses, in which he included a written witness statement of one Patrick Kamburu Muchai.

The Defences and Subsequent Pleadings 6. The 2nd Defendant entered Appearance on 7/12/2015 and filed a Defence dated 26/01/2016 on 02/02/2016. In the Defence he admitted to the averment that the Plaintiff was the wife of the 1st Defendant but denied that the Plaintiff had five (5) issues with the 1st Defendant and called on the Plaintiff to prove strictly the averment. Further, he denied that the suit property was acquired by the joint efforts of the Plaintiff and 1st Defendant and that the property was matrimonial property. He denied further that the Plaintiff and 1st Defendant ever constructed rental and business premises on the property. He averred that he was a tenant of the 1st Defendant on the property for many years before the 1st Defendant sold it to him thereby becoming the landlord. He denied the allegation of the property being matrimonial property hence pleading further that the requirement of spousal consent was unnecessary in the sale transaction.

7. His further averment was that the sale price agreed upon was Kshs. 1,500,000/= of which full payment was made and utilized for the benefit of the Plaintiff and family. He then discounted the reliefs sought as non-obtainable, and the suit incompetent and bad in law hence fit for dismissal with costs.

8. The 2nd Defendant did not file a witness statement or List of Documents immediately. Instead he filed these on 24/07/2017. The statement was written and signed by him. The documents in the List were the copy of the agreement of sale and an Acknowledgement Receipt, the demand letter and reply to the Demand letter and a valuation report on the property. He claimed he was an innocent purchaser in the transaction. He too would adopt the witness statement as his evidence in-chief during the Defence hearing.

9. The 1st Defendant too entered Appearance and filed his defence dated 21/12/2015 on 06/01/2016. In the Defence he admitted that the Plaintiff was his wife as pleaded in the Plaint but averred that he was the sole proprietor of the suit property. In paragraph 4 of the Defence he pleaded that indeed he sold the property to the 2nd Defendant and applied the proceeds of the sale for the benefit of the family including the Plaintiff. He then averred at paragraph 5 that this was a family issue between he and the Plaintiff that could be resolved at family level, and craved leave of the Court to settle it out of Court.

10. Together with the Defence he filed a witness statement signed by him on 02/12/2015. He also filed a List of Documents bearing the same date to which was attached only one copy of a document which was the sale agreement dated 12/05/2012.

11. It would appear that nothing took place in the file until 15/12/2016 when a hearing date was fixed in the Registry for 19/04/2017. On 19/04/2017 there seems to be no record as to why the suit did not proceed to hearing but another hearing date was taken in the registry the same date for 25/07/2017.

12. The record bears further that on 24/07/2017, which was date before the hearing fixed earlier, frantic efforts were made by the 2nd Defendant herein to put his house in order hence there was a flurry of activities in relation to this suit. First, on the same date, learned counsel for the 2nd Defendant filed the witness statement and List of Documents. He must have served them on the same date because on 25/07/2017 when the matter came up for hearing, the Plaintiff’s counsel informed the Court that he had been served the day with the two sets of documents the day before. As a result, the suit was adjourned to 29/11/2017.

13. On 2/07/2017, the Plaintiff prayed for leave to Amend the Plaint to plead the new plot number which was now 51A instead of 49. The Court allowed that, directing that it be done strictly within 14 days. The Defendants too were to file their Amended Defences and Counterclaims if any within 14 days of service.

14. It would appear the Plaintiff complied with the order on 24/07/2019. Strangely, and in what appears to have been a calculated move between the Plaintiff and the 1st Defendant, the 1st Defendant also filed his Amended Defence the same date. This action becomes material at the time of hearing as will be revealed below. Be that as it may, in the Amended Defence the 1st Defendant now changed the entire defence by averring in the pleading that the property was jointly bought by him and the Plaintiff, that the property was sold by him to the 2nd Defendant without consulting the Plaintiff and the family, and lastly that since the family had resisted the sale between him and the 1st Defendant had aborted. He prayed that the suit be allowed as prayed.

15. Together with the 1st Defendant’s Amended Defence were two documents “Drawn and Filed by” the 1st Defendant. These were, namely, a Further Statement of Patrick Kamburu Muchai signed the same date of 24/07/2019 and a Further Statement of Phelister Mumu Nyaga which bore no date but was indeed signed by the Plaintiff yet drawn by the 1st Defendant.

16. Surprisingly, the print (the font size and type) of the two documents stated above was the same as that of the Amended Defence and also the Amended Plaint. Whether it was a coincidence or not, these similarities including the drawers of the documents point to a scheme by both the Plaintiff and Defendant. They are too close in proximity and similarity that they cannot be a mere coincidence. Nevertheless, this Court will proceed to determine the matter on merits.

17. The 2nd Defendant filed his Amended Defence and Counterclaim on 30/07/2019. In the Counterclaim he pleaded that upon taking possession of the suit premises after the sale, he undertook substantial renovations which took the sum of Kshs. 1,311, 484/=. He repeated that the suit premises do not constitute and have never been matrimonial property. He averred that the 1st Defendant and the Plaintiff colluded after receiving and utilizing the money from the purchase of the property for the benefit of the family, to bring the instant suit with a view to making the suit premises free to them and available for sale of the same to third parties at better and higher price. Lastly, that having paid the full purchase price and renovated the premises and increased its value and its character, the 2nd Defendant was now entitled to an order of specific performance from the 1st Defendant in terms of paragraph 13 of the Amended Defence and Counterclaim in default of which the Deputy Registrar of the Court does execute the necessary transfer instruments to have the property transferred unconditionally to the 2nd Defendant.

18. In the alternative he prayed for a refund of his money pegged on current value of the property as per the Valuation Report. He also prayed for costs of the Counterclaim and interest at 14% per annum.

19. The Plaintiff replied to the Amended Defence and Counterclaim. He did so on 15/08/2019.

The Evidence 20. When this suit came up for hearing, the Plaintiff who gave her age as 74 years testified as PW1. She stated that she knew both Defendants, with the 1st being her husband since 1968. She stated that she and her husband lived in Lodwar since 1974 and that she knew the 2nd Defendant when he went to her home in Meru to inquire about her husband’s presence. She did not specify the year. She informed him then that her husband was away and the 2nd Defendant informed her that the reason he sought him was that he had bought ‘msichana yangu’ (my girl). When she insisted to know the meaning of the coded language the 2nd Defendant said the ‘msichana’ in Lodwar. She testified further that she informed him that she had no daughter in Lodwar and that was when he said it was the plot in Lodwar.

21. She testified further that she, a tailor at the time, and her husband who was a tailor too used to own jointly a plot in Lodwar and they bought it in the 1970s. Her evidence was that they put money together to do so. By that time the husband was in company of or partnership of four people with whom he bought the plot jointly. After that it was split into four. Her further testimony was that she used to sell maize which they put together in the project and jointly bought the property.

22. She testified that the property had some buildings on it. These were a shop and lodgings. After some time, she became unwell and left Lodwar for Meru home. Then the 1st Defendant sold the property when she was at home. He did not inform them and she only got to know it when the 2nd Defendant visited her at home to look for the husband.

23. Her further testimony was that when the 1st Defendant sold the plot he did not give her a single coin. She adopted as evidence in-Chief the witness statement she wrote and filed on 3/11/2015. Then she stated that she wished to adopt the witness statement she wrote and filed on 24/07/2019. She produced as P. Exhibit 1(a) the demand letter she issued through her advocates on 14/08/2015 and the reply thereto by the 2nd Defendant’s counsel dated 24/08/2015 as P. Exhibit 1(b). She then asked for an order that the Court orders the 2nd Defendant to move out of the suit land since it was generating income for family upkeep.

24. On cross-examination she admitted again that she was the 1st Defendant’s wife. She narrated how, on the way to Court, she and the 1st Defendant travelled together from Meru in the same vehicle and slept together in the same hotel in Kitale and how they came to Court together. She stated that they had children born to them. She then testified that before the suit was filed, she, the 1st Defendant and the children sat together and agreed that the suit land be returned to the family.

25. She admitted that in 2012 her husband bought a matatu (public transport vehicle) and a Lorry. He ran the two businesses of vehicle transport up to 2013 for the family. She stated that she did not know where he got the money from. She stated that it was by the time the 2nd Defendant told her that he had bought the both the matatu and Lorry. She testified further that she asked the 2nd Defendant if he had bought the plot and he stated so. She, however, did not ask the husband whether he had sold the plot. Asked about what she would say about the 1st Defendant’s witness statement filed on 6/012016 where he said the money from the sale of the plot benefited the family, she denied it. She, however, stated that the children were in school in 2012 but it was she alone who supported their education through coffee farming.

26. She stated that she did not know whether the plots in Lodwar Township had title deeds. She had never visited to the County Government offices on Lodwar but she had ownership papers of the plot. She admitted that she did not know who specifically was allocated Plot No. 49 situate in Lodwar. She named the three partners who jointly with her husband bought as Muungano Partnership the land before it was subdivided. They were Kamburu Mutinda, Sebastiano Kaburu and Njogu Mutinda. She stated that they and her husband paid Kshs. 20,000/= but did not know how much the husband paid as his share.

27. PW1 did not know if the land was sold in 2012 and how much was paid for it. She did not know also if the 2nd Defendant had been given possession of the premises by the 1st Defendant and whether he had made improvements thereon but she knew he was in possession. She did not know whether he had spent about Kshs. 1. 3 million for renovations after paying Kshs. 1. 5 million for the purchase of the same.

28. She denied conspiracy by the family to take back the plot. She denied not contributing to the acquisition of the property. She admitted the plot was bought by her husband. Further, she admitted that the 2nd Defendant used to be a tenant of the 1st Defendant before he bought the property from him. She did not know when the plot was acquired by her husband but she remembered that by then she had children. She denied being a housewife.

29. In re-examination, she stated that her husband paid a sum of Kshs. 20,0000/= for the purchase of the plot. Each partner contributed Kshs. 20,000/=. She still insisted she did not know wherefrom her husband got the money he used to buy the matatu and lorry. She did not know if it was from the proceeds of the sale of the plot. She insisted that when at home the 1st Defendant did not send money for the upkeep. She then stated that if money had to be refunded to the 2nd Defendant it could only be discussed later. She insisted she was not consulted and or involved in the sale of the Plot to the 2nd Defendant.

30. PW2, a brother to the 1st Defendant and brother-in-law to the Plaintiff testified that both the Plaintiff and the 1st Defendant moved to Lodwar in 1969. He testified he knew they bought a plot but did not know how they got to buy it. He stated that he moved to Lodwar in 1991. That was when he got involved in the transactions on the plot. Initially it used to be Plot No. 51 but it was split into four(4) and the Plaintiff and Defendant were given Plot 49 therefrom.

31. PW2 testified further, that when the Plaintiff and 1st Defendant went home in Meru in 1995, they left him as the caretaker. He testified further that he used to collect money from the 2nd Defendant as the tenant and send it to them at home. That was vide a lease agreement dated 19/10/2010. He used to send the money to either the Plaintiff or the 1st Defendant. He ceased to be caretaker in 2012 when the 1st and 2nd Defendants entered into a sale agreement over the property.

32. In cross-examination, he repeated that he did not know how the plot was acquired by the parties. She stated that the Plaintiff had called him to testify. He denied there being a conspiracy to deny the 2nd Defendant property he had bought. That marked the close of the Plaintiff’s case.

33. When the matter proceeded to the Defence hearing the 1st Defendant who testified as DW1 began by acknowledging that he had filed a Memorandum of Appearance and 1st Defendant’s Defence on 06/01/2016 and that he wrote a witness statement which was filed on that date. But when it got to the 1st Defendant’s Amended Defence filed on 24/07/2019 he stated on oath that he was not served with the Amended Plaint, and he did not sign the Amended Defence. He disowned it and stated that he wished to be served so that he could see the Amended Plaint and Reply thereto. Thus, the Court struck out the document from the record. It directed that the witness be stood down so that the record be regularized. Further, the Court directed that the party be served with the Amended Plaint so that he responds to it.

34. It was done on 10/03/2021. On the said date the 1st Defendant filed two pleadings, namely, the 1st Defendant’s Defence to the Amended Plaint, and the 1st Defendant’s Defence to the 2nd Defendant’s Amended Defence and Counterclaim. What makes this Court to still hold that the Plaintiff and 1st Defendant were working in collusion or concert toward making the Plaintiff’s case to succeed was that in the Defence to the Amended Plaint, the 1st Defendant which he filed on 08/02/2022, he did nothing else than only change the date of the pleading and added the 2nd Defendant’s counsel’s Address of Service.

35. To my mind, it means that when the pleading filed on 24/078/2019 though struck out ultimately, it was drawn with the clear knowledge and consent of the 1st Defendant, even when the Amended Plaint had not been served, and the 1st Defendant was in agreement with the drawer that the contents therein were the averments to be put forth in his Defence, at all material times, and therefore the claims of 28/02/2022 by the 1st Defendant were a design to buy time and get a chance to file an Amended Defence to the 2nd Defendant’s Defence and Counterclaim. Nevertheless, that is water under the bridge since the Court directed that the steps be taken.

36. In the Amended Defence to the 2nd Defendant’s Defence and Counterclaim the 1st Defendant pleaded that it was true the Plaintiff was his wife but that the sale of the plot took place without her consent. He averred that the property was acquired with the joint efforts of the Plaintiff. He admitted that the 2nd Defendant used to be his tenant until he bought the plot from him. Further, he claimed that he had come to know that the spousal consent was a legal requirement in land transactions.

37. The 1st Defendant then pleaded since he had faced stiff resistance from his family over the sale, and since the 2nd Defendant had been utilizing the property the purchase price be converted into monthly rent and if there was any balance it be refunded to the 2nd Defendant. His further averment was that the Plaintiff used to benefit more from the rent than the proceeds of the vehicle he purchased since it had mechanical problems and was not of any benefit to the family. He then denied the expense that had been alleged to have been incurred by the 2nd Defendant on renovations of the premises and put the said Defendant to strict proof thereof. He denied the pleading that the suit land was not matrimonial property. He denied the allegation of collusion between the Plaintiff and himself with the intent of taking away the property of the 2nd Defendant. He pleaded that specific performance was not available in the circumstances and prayed for the dismissal the Counterclaim. Notably, the 2nd Defendant did not file any witness statement or documents with these pleadings.

38. After the pleadings closed, for the reason that the 1st Defendant’s pleadings introduced totally new character of the defences, it was in the interest of justice that the Plaintiff’s case be reopened and she adduces further evidence on the issues raised and she be cross-examined by the parties on the new issues pleaded. PW1 was recalled on 14/06/2022 for cross-examination on her evidence by the parties. Upon cross-examination by the 1st Defendant, she testified that the 1st Defendant sold the plot without informing her and the children about it. Further, she stated that she contributed to the purchase of the plot.

39. Upon further cross-examination by the 2nd Defendant PW1 testified that the plot was sold when children were in school and that some of the money was used to pay for their school fees. She admitted that when the Plot was sold she and the 1st Defendant were in good terms. She again changed her mind that the fees was not paid from the proceeds of the sale of the plot. She also denied that the 2nd Defendant bought a lorry and matatu. She even changed her evidence which she had given earlier that she and the 1st Defendant travelled together from Meru. She said they differed some time back after he sold the plot in question. At this point the Court noted that the witness was plainly lying on oath since she had testified that they came together to Court and even slept in the same hotel.

40. When she was pressed further on cross-examination, that the plot was bought in 1986 and by then it had some buildings on it. She admitted that this was contrary to her earlier evidence that she and the Plaintiff had acquired the plot when it was bare and they were the ones who built on it. She then stated if the 1st Defendant had pleaded that she did not contribute to the acquisition of the property it was a lie. She again changed her earlier testimony to say she was the one who contributed Kshs. 20,000/=. Again, she changed her mind to say the Kshs. 20,000/= was her joint contribution with the husband, of which it was part of the Kshs. 80,000/= which was the total cost of the Plot the partners met. She then again testified that he was not a partner but her husband was. She stated that she did not know when the partnership was dissolved.

41. Regarding the building on the plot, she stated that it was done during her time of the partnership and it was they who built it. She changed the evidence again to say it was the four partners who built it but not she and her husband. She still denied ever seeing her husband owning a lorry or matatu. She changed her earlier testimony that the family held a meeting and decided that the plot be returned to it. She repeated that she only knew of the sale when the 2nd Defendant came home to inquire about her husband.

42. On re-examination, she reiterated that she was not informed that the plot was being sold. She said the husband acquired the plot when they were already married. She denied seeing the husband with a matatu and neither did he own a lorry. She denied a conspiracy to defraud the 2nd Defendant. She repeated that it was her who contributed Kshs. 20,000/= for the purchase of the plot. With that the Plaintiff’s case was closed.

43. The 1st Defendant testified the same date as DW1. This time he stated that he hailed from Chogoria in Meru County. He stated that in 2015 he wrote a witness statement on 21/12/2015 and filed it with a Defence. He adopted it as his evidence in-Chief. He stated that he and the Plaintiff were partners in Lodwar where they used to reside. He stated how he used to do tailoring and the Plaintiff used to help him in the finishing the clothing and she would also buy maize and sell, and that that was how they raised the Kshs. 20,000/= sum to buy the Plot in issue. He stated that they jointly paid the Kshs. 20,000/= which was part of the Kshs. 80,000/= for which the entire Plot was sold to the partnership.

44. When they dissolved the partnership, he became the sole owner of the plot. He testified further that after this the Plaintiff became unwell and went home in Meru he remained in Lodwar to work. Overwhelmed with work, he decided to rent out the house to Mr. Mwiti (the 2nd Defendant). It was then they became friends and would take beer together regularly. At one time the 2nd Defendant asked if he could sell the house to him and he agreed to the proposal.

45. The 2nd Defendant proposed that the Kshs. 23,000/= he used to pay as rent be converted to instalments. In total he paid him a total of Kshs. 1. 5 Million in 3 years. Upon completion of the purchase price they went to Lodwar town County Council to effect the transfer of the Plot to the 2nd Defendant. The Council asked him to avail his wife and children but he insisted he had authority to sell the house and transfer it. But the official at the Council refused to act as instructed and insisted that the 1st Defendant avails his wife and children. It was at that point that the wife and children got to know that he had sold the house. They objected to the sale.

46. On cross-examination by the 1st Defendant’s learned counsel, she testified that the plot in issue was plot No. 49 but the Council had changed the number to No. 51A which the agreement referred to. He agreed with Mr. Mwiti that they entered into agreement over the plot. The 2nd Defendant paid Kshs. 1. 5 million in instalments. He stated further that the money used to buy the Plot was jointly contributed, but his wife did not know he was selling it. He did not notify the children either and they did not sign any consent. He admitted that after he sold the house he never gave his wife money anymore. He wanted to transfer the plot to Mwiti but the Council refused without his wife/children being there.

47. He agreed that Mr. Mwiti was his friend who used to be his tenant, paying Kshs. 23,000/= monthly rent. Whenever he paid it, the 1st Defendant used to send it to his wife after she became ill and went home. He stated he used all the Kshs. 1. 5 million for his own use. He stated further that before he met Mwiti he used to own four (4) lorries but at the time of testifying he had only one, and it was in Lodwar under the care of Mr. Mwiti, the 2nd Defendant. His evidence was that the reason for it being under the 2nd Defendant’s name was that when the 1st Defendant bought the Lorry he was defeated in paying for it instalments to National Industrial Credit (N.I.C). He requested the 2nd Defendant to assist him to pay the instalments and after that they became partners in the lorry business. They wrote an agreement and 2nd Defendant had not paid him, and the County Government still owed them Kshs. 6 million they were demanding for its use. He stated that he was rich.

48. At this point and on that evidence, this Court noted in comparison with his written statement which he adopted that he was lying. In the statement he stated that he had financial constraints. Then again, the witness changed his testimony that he sold the plot because he had financial constraints.

49. On cross-examination, he stated that he had only one wife, the Plaintiff. His evidence was that from the time they started the dispute herein his wife stayed on her own and he was on his own. He said they differed after she sued him. Asked if he heard her testify the first time he said he did. However, he denied hearing her testify that the slept in the same hotel and had travelled in same vehicle that day all the way from Meru.

50. He stated that their partnership had 4 members who bought the Plot in Lodwar in 1972. He said the partnership ended in 1985.

51. He testified that the 2nd Defendant was his friend and even up to the time of testimony they were business partners. He stated that they wrote the agreement of the sale of the plot while in Chuka, Meru on 12/5/2012. He acknowledged the agreement then marked as D2MFI-1 as the one. He testified that the 2nd Defendant paid the purchase price in instalments, with the first one being Kshs. 700,000/= on the date of the agreement and the balance of Kshs. 800,000/= on 24/6/2014. He signed an acknowledgement for it. The acknowledgement was then marked as D2MFI-2. But he denied using the money to buy a matatu or lorry. Asked when it did not differ with is statement of 21/12/2015, he agreed. Asked further whether he did not lie this time around when stating that they bought the property jointly, he testified that he wrote in the statement that he bought the property solely in his name. The witness statement was given to him to read again and he confirmed it as much. He then changed his testimony to say that the witness statement he wrote was untrue. He emphasized that it was at the time of testifying orally that he was saying the truth. He went on to say that he did not use the money from the sale of the plot to buy the lorry. At that point, he was referred to paragraph 7 of his Defence to the 2nd Defendant’s Defence and Counterclaim filed in court on 10/3/2022 where he pleaded that he bought a lorry from the proceeds of the sale which the Plaintiff used to benefit less than she did from the rent of the Plot. His answer was that the statement in the paragraph is untrue. He admitted having written the Statement of Defence referred to.

52. He stated that he was a Christian, a believer in the Bible and the he knew the Holy Book forbade lies. He was shown his own Defence and he denied the contents thereof. He admitted that he wrote the Defence to the 2nd Defendant’s Amended Defence and Counterclaim. When he was asked to compare it with paragraph 5 of the statement he wrote on 21/12/2022, he admitted that in the statement he wrote that his wife benefited from the lorries and matatu he bought from the sale of the Plot. He also admitted that in the statement he wrote that he bought the parcel of land on his own and not jointly with his wife.

53. Asked further about paragraph 7 of his Defence to the 2nd Defendant’s Amended Defence and Counterclaim, he stated he bought the lorry from the sale of the plot but it broke down. He admitted that the paragraph differed from his witness statement. He admitted that after selling the plot to the 2nd Defendant he went to transfer the plot to him. He stated further that as at the time of the testimony, it was about 10 years since he sold the plot to the Plaintiff.

54. About the proposal in the Defence that the money paid to him be converted to rent he admitted that he and the 2nd Defendant has agreed that he buys the plot. He stated that the problem came up when he (the 1st Defendant) was sued.

55. Pressed further in cross-examination, he stated that at paragraph of the Defence 2 he stated that he had sold the land without the Plaintiff’s consent. He admitted that earlier he wrote a Statement of the Defence filed on 6/01/2016 that his family benefited and also at paragraph 4 that the family benefited after he invested the money from the sale of the Plot. He also admitted that he benefited from the sale of the plot. He said that he benefited from the money as a person. Again, he did not dispute that at paragraph 3 of the Defence he admitted that the Plaintiff was his wife but he was the sole registered proprietor of the suit property but that it was not so. He admitted to pleading that the dispute was a family issue which could be resolved out of court, but he had never called the 2nd Defendant to discuss it out of court. He admitted that the initial Defence and the one to the Amended Plaint were different. The plaintiff is still collecting rent to date.

56. Asked about the valuation report dated 7/4/2016 done by the 2nd Defendant and marked as D2MFI-3, he admitted to hearing about it. His evidence was that ff the family agreed that he signs for and transfers the Plot I would do so. He stated he heard that the 2nd Defendant prayed for the court to order a transfer of the property.

57. Asked further, he admitted that in his papers (statement and Defence) he wrote that the family sat and agreed the property be returned. He stated that he did not agree to that at the moment. Moreover, he stated that he did not want any of Mr. Mwiti’s money to get lost, but they had not deposited it in court or in any account and he did not have it in court. The reason he said that was the situation was that they had used it.

58. On his part, the 2nd Defendant testified as DW1. He stated that he was a business person in Lodwar. His evidence was that he had been in Lodwar for 23 years and he got to know Nyaga Muchai Buimunya, the 1st Defendant. His testimony was that at first, he was the 1st Defendant’s tenant in his house on Plot No. 51A. That was from 2010 to 2012. He then adopted his witness statement he wrote and signed, and filed on 24/7/2017.

59. He continued that they entered into agreement to buy the 1st Defendant’s house and that was when the 1st Defendant called and told him that he wished to sell his house. He agreed to buy it. At that time, he resided in Lodwar. Later, the 1st Defendant told him to travel to Meru to meet and write the agreement. He did so and they met. Upon discussing the same they agreed that they write it before a lawyer and the 1st Defendant was one who took him to an advocate called Mr. Mugo based in Chuka. They ultimately signed the agreement which he produced as 2nd D. Exhibit 1 for a sum of Kshs. 1. 5 Million. It was dated 12/5/2012. He paid a deposit of Kshs.700,000/=, leaving a balance of Kshs.800,000/=. He paid it later, on 24/6/2014, in the presence of Mr. Mugo Advocate who wrote an acknowledgement. He produced the acknowledgement the 2nd D. Exhibit 2.

60. After he bought the house he conducted renovations which cost approximately Kshs. 1. 4 Million. By them he raised the roof by adding a course of bricks/stones, added the roof timber and put iron sheets which were new. He also removed the floor and put a new one and repaired the sewage and fixed new internal toilets.

61. Later, he valued the property through Axis Design and Construction Solutions Ltd who indicated the value of the renovations to be Kshs.1,311,484/=. He marked for identification the valuation report as 2nd DMFI-3. He admitted to receiving a demand letter dated 24/8/2015. He responded to it through P. Exhibit 1(b).

62. He described the relationship between him and the 1st Defendant as cordial and that they did business together to that day. By the time he was the 1st Defendant’s tenant he was paying Kshs.12,000/= per month. He stated that the 1st Defendant informed him that the rent was not enough to sustain his family and he wished to invest. He paid him the 1st instalment of Kshs.700,000/= which he used to buy a matatu and the 2nd one he invested in a FRI Isuzu lorry, whose registration No. KBW 087W. His testimony was that by the time they entered into the agreement the 1st Defendant never owned a lorry.

63. He admitted to going to the 1st Defendant’s home and meeting his wife (the Plaintiff). He met her first and after the introduction he stated he was buying the Plot in Lodwar. She did not object to it. He stated further that she only stated that he and one Eliud Karani whom he was with and who would later become a witness to the agreement wait for the husband. But since he was in a hurry, they left. The Plaintiff did not accompany the husband to the advocates office. He (2nd Defendant) stated then the wife was unwell. When they were doing the transaction the 2nd Defendant never told him the wife was a co-owner of the property. His further evidence was that even all the years he was a tenant the wife never appeared there or claimed to be co-owner.

64. He testified that he did not buy beer for Mr. Nyaga, the 1st Defendant and that he lied on that. Hi evidence was that during the trip to Meru he did not take or buy any beer for him and they did not take beer.

65. About the Plot money not benefitting the Plaintiff’s family, he testified that it not true. Further, he testified that he heard the Plaintiff testify in Court that she and the 1st Defendant came to Court together and in court they even spent the night together in the hotel. He also heard the Plaintiff testify that they discussed with the husband and children to tell me to return the plot. He then testified that that was a conspiracy hatched by the family so that they have the Plot back to the family.

66. His evidence was that he and the 1st Defendant went to the Lands office in Turkana County to transfer the Plot. The Plaintiff was not there to object to the transfer and she did not write any objection the County Government.

67. On cross-examination by learned counsel for the Plaintiff, he repeated that he used to be a tenant of the 1st Defendant before buying the Plot. That was vide a tenancy agreement entered into in Lodwar on 19/10/2010 by which he used to pay Kshs.13,000/= per month. His evidence was that the document did not include the Plaintiff’s name but was between the 1st Defendant and him. In the tenancy agreement the 1st Defendant was the owner of the house. It was him to carry out repairs. After he bought the house they entered into a sale agreement, produced as 2nd D. Exhibit 1 in which the Plaintiff was not a witness.

68. The 2nd Defendant testified further that he went with Eliud to the 1st Defendant’s where he met the wife and informed her that he bought the Plot in Lodwar. He informed her so because he went to look for the husband and she inquired whom he was and he told about the purchase of the plot in Lodwar. The husband had informed him that he had informed her about the sale. He said that even when they wrote the agreement they wanted the wife to be present but the 1st Defendant said she was sick. Had there been an objection to the sale by the Plaintiff she would have stated so. His evidence was that the Plaintiff sued to take away his property.

69. He stated that he heard the Plaintiff say in court that she had contributed to the purchase of the plot. Also, that the valuation report, he testified that it was to show he spent money to renovate the premises. He bought the items he used for the renovation but he did not have receipts in support of the exercise.

70. His further evidence in cross-examination was that the Plot did not have title thereto but had only an allotment letter issued from the County Council. He stated that he was not given the transfer of the Plot to me because at the land office they found that the 1st defendant’s son had put a complaint about the sale. He was informed that the complaint was that they were not involved in the transaction hence the officer directed them to go back to the one who had lodged a complaint to go and remove it. He stated that they were not told to go back and avail the wife.

71. Cross-examined by the 1st Defendant, the stated that it was true both of them went to Lodwar to transfer of the plot. He repeated that the officer at the lands office said that the 1st Defendant’s son had raised a complaint about the sale, on that same date they went. He testified that by that time the land rent owing to the County was Kshs. 27,000/= and he gave the cash to the son to go and pay for the rent.

72. His further testimony was that it was true that the Advocate who drew the agreement asked him, the 1st Defendant, where his wife was and he said she was sick and that was the reason he (the 2nd Defendant) did not follow afterward on her absence. He confirmed Mr. Karani was his witness and it was upon the 1st Defendant to get his own witness if he wished to have one to witness the agreement.

73. Asked further by the 1st Defendant how he and him went to transfer the Plot, he said the 1st Defendant went voluntarily and not under compulsion. He said he informed the wife that he was the one who had taken their “daughter in Lodwar”. Further that that was before they went (understood to mean came to Meru) to write an agreement. He said he informed the Plaintiff that time whom he was. He denied the insinuation and question by the 1st Defendant in cross-examination that he went home to plead with the wife to agree to sign the transfer of the Plot.

74. In re-examination he repeated that he did not go to the 1st Defendant’s home in the company of Eliud Karani to plead with the wife to transfer the Plot. He said the 1st Defendant had a problem about the vehicle he had. Further he stated that when he went again to the 1st Defendant’s home it was because of the business they had together. About why the wife did not witness the agreement, he stated that it was the obligation of the 1st Defendant to call her to sign it but his explanation was that she was unwell. He then stated that after the execution or signing of the agreement they both went to the chemist and bought medicine for her and she was fully aware of the transaction.

75. DW3, one Hebert Simiyu Mugando, a resident of Lodwar testified that he worked for Axis Design and Construction Solutions Ltd as a quantity surveyor. He stated that he trained in Kenya Polytechnic University College and held a Diploma in Building Engineering from there. His evidence was that he was a registered member of Architectural Association of Kenya, vide registration No. AAK 3874. He stated that he knew the 2nd Defendant and that in 2016 he instructed the company to value some buildings that had been renovated earlier. He visited the site and assessed the work done. The building had several rooms and the roof had been replaced, and toilets done, painting and the septic tank were also done. His task was to ascertain the cost of renovations done, which he did and produced the report dated 7/4/2014. He produced in evidence as 2nd D. Exhibit 3. He put the cost at Kshs.1,311,484/=.

76. On cross-examination by the Plaintiff’s learned counsel, he repeated that he qualified as a quantity surveyor from Kenya Polytechnic. He did not carry his licence to Court but he valued the property in 2016. He admitted that he did not attach his licence to the report and did not have the Kenya Gazette to show that he was a gazetted quantity surveyor. He did not also have an instruction note form the client to show what he was instructed to do but his work was only to value the amount that had been used. He stated that the client did not give him receipts but used only the current gazette rates of the time for the cost of material and that all that is explained in the report. He stated that he used a tape measure as a tool. He undertook to produce documents that he was a qualified quantity surveyor.

77. On cross-examination by the 1st Defendant, he stated that he did not know him but used to see him in Lodwar, some years back which he could not recall. Further, he valued the property in 2016 but the client did not tell him if the Plot had been transferred to him. But he told him the Plot was his. By the time he inspected the property, renovation had been done and he only valued what was already done, arriving at a cost of Kshs.1,311,484/=. He stated that he himself did not renovate the house but he valued the roof, ceiling, paint and the toilets.

78. At that the 2nd Defendant’s case was closed.

Submissions 79. The Plaintiff submitted on the chronology of the suit herein, starting with the point that the suit was commenced on 3/11/2015 but was amended on 24/07/2019. After that the 2nd Defendant filed an Amended Defence and Counterclaim. Also, that the 1st Defendant filed his Defence admitting that he sold the property without the consent of the wife and children and that the family had since objected. She then summed her evidence to the effect that she had called two witnesses for her case, being herself and another person. She summed how she and the 1st Defendant got married in 1968 and moved to Lodwar Town in 1974 and how herself and husband had in the company of three other people acquired the suit property which was part of a bigger land. It was a partnership of four people. The property had some buildings on it and it ran until sometime in 1995 when due to bad health the Plaintiff left for home in Meru and her husband, the 1st Defendant, had to take care of it.

80. Subsequently, he sold the property without involving her. She testified that she came to know it when the 2nd Defendant came to Meru looking for the 1st Defendant about the same. That was when he informed her that he had bought her Msichana at Lodwar. She stated that the 1st Defendant did not at all give her a single cent when he sold the plot. But she acknowledged that the Plot was sold at Kshs. 1,500,000/= and as per the agreement dated 12/05/2012, the balance of Kshs. 800,000/= was paid at a date she was not aware of. She also testified that she was not aware that the 1st Defendant had permitted the 2nd Defendant to occupy the premises.

81. The Plaintiff also summed up the evidence of PW2, one Patrick Kaburu Muchai, who was her brother in-law and brother to the 1st Defendant. Her summary of his evidence was that the 1st Defendant moved to Lodwar in 1969 but he could not tell how he and his wife purchased the suit land. But he was aware that the Plot used to be No. 49 but became No. 561A. When the brother and sister-in-law went home in Meru he used to collect the rent on their behalf and send to them.

82. The Plaintiff also summarized the evidence of DW1, the 1st Defendant. He also did the same for DW2, the 2nd Defendant, and DW3, Mr. Hebert Simiyu Mugando, the valuer. I need not repeat the summary here since I will analyze it during the determination of the matter below. Apart from the summary of the evidence, there was no comment at all or appraisal of any of the witnesses’ evidence at the summary stage.

83. At the analysis stage of the submissions on the evidence of the parties, the Plaintiff stated that indeed the Plaintiff confirmed that she and the Defendant were living together. Again, she stated that the evidence showed that the rent used to benefit the family and especially when in her sickness. There was no much analysis of the evidence apart from summarizing it again. Regarding the evidence of DW3, the Valuer, her submission was that since he did not attach any evidence to the report that he was a licensed surveyor, his report was of no value and should not be considered. She then urged the Court to declare the agreement null and void and cancel the same. The Plaintiff cited neither authority nor any provision of law in support of the submissions.

84. On his part, the 1st Defendant filed submissions on 09/12/2022. He made the submissions in the third person yet he was the one making them. From the face of it, it appears that someone must have done them for him. Be that as it may, this Court wishes to analyze the submissions. He too summarized the evidence of all the witnesses, including his, but starting with that of the Plaintiff. I need not repeat the summary here. But the structure of the submissions was exactly as that of the Plaintiff. This coincidence keeps replicating from the pleadings, evidence to the submissions. Be that as it may, the Court notes that the two are husband and wife and read from the same script. That is not the problem and the Court cannot form its opinion and determination of the suit on that but on the merits of the case.

85. In the analysis of the evidence tendered, the 1st Defendant, repeated that he and the Plaintiff had bought the suit land through their joint efforts and that although he sold the plot to the 2nd Defendant, it had gotten resistance hence the need to refund the money and return the property to him. He submitted that he was always willing to transfer the property to the 2nd Defendant save for the objections from the family. He repeated the reliefs sought and stated that Specific Performance should not apply because the 2nd Defendant had not obtained title to the Plot. He urged the Court to consider the payments made by the Plaintiff as rents paid by him over the years. He left the issue of costs of the suit to the Court to determine.

86. The 2nd Defendant submitted on the suit as hereunder. He first summarized the chronology of the suit from the filing time to the close of the evidence. Then he summed up the reliefs the parties sought. He stated that in the body of her pleadings the Plaintiff alleged that the subject matter of the suit is matrimonial/family property which was due to the fact that she married the 1st Defendant in 1968 and the suit property was acquired during the subsistence of her marriage to the 1st Defendant.

87. He then summarized the evidence of all the parties and their witnesses. I need not rehash the summary he gave since the detailed analysis of the evidence is at point of the determination of this judgment. He singled out what he termed as salient in the statement of defence of the 1st Defendant at paragraphs 3, 4 and 5. The features were that in the pleading, the 1st Defendant stated that he was the sole proprietor of the suit property; he sold the suit property to the 2nd Defendant and applied the proceeds of sale for the benefit of the family including the Plaintiff; and the whole matter was a family issue capable of an amicable out of court settlement if given time.

88. He also singled out the 1st Defendant’s witness statement dated 21/12/2015 which he adopted on 14/06/2022 as his evidence in-Chief where he stated as follows:-“That I bought the suit property (plot No, 49) within Lodwar Township and the said plot is registered in my name as we were not joint with my wife.That I don’t deny I was living in Lodwar with my wife but I bought the suit land solely and the same was registered in my name.I later sold the plot to the 2nd Defendant herein due to financial constraints.I informed her that I wanted to sell the suit property which she declined yet the 2nd Defendant had paid a requisite amount of money to me”.

89. He submitted that paragraphs 3, 4 and 5 of the Defence of the 1st Defendant dated 08/03/2022 filed on 10/03/2022 are at variance with his original witness statement and defence, yet he admitted to have filed them and also he adopted the written witness statement as his testimony.

90. He submitted on how he as the 2nd Defendant was permitted to Amend his Pleadings and he did, serving the Plaintiff and 1st Defendant as directed by the Court. In the Defence he introduced a Counterclaim. He then submitted that the Plaintiff failed to call a witness from the Municipal Council of Lodwar (as it then was) or the County Government or produce a copy of the Letter of Allotment in evidence of evidence of ownership. Further, he discounted the entire suit by stating that there was no citation of the law under which the suit was brought nor was any quoted in the final submissions.

91. His submissions were that the Matrimonial Property Act was enacted in 2013, assented to on 24/12/2013 and commenced on 16/01/2014, yet the agreement for sale of the suit property was made on 12/05/2012.

92. He submitted that when the Plaintiff testified that she also bought the property it was a contradiction because she also testified that the 1st Defendant and 3 other people purchased the property in partnership and the partnership property was shared out amongst the 4 partners. He submitted further that the witness contradicted herself when she testified that the property was developed yet in her written witness statement she alleged that she and her husband developed the plot.

93. His submission was that the Plaintiff readily confessed that she was the only wife to the 1st Defendant and that there was harmony in the family, with her living with the 1st Defendant as husband and wife at the time. He emphasized that she testified that she had travelled from Meru to Kitale in the same vehicle with the 1st Defendant, spent the night in the same room and walked to court together. Further that the Plaintiff admitted that before the commencement of this suit there was a joint family meeting, involving the children of the marriage, the Plaintiff and the 1st Defendant where it was agreed that the subject matter of this suit must be returned to the family.

94. He then submitted that by implication, the Plaintiff was all along aware of the sale and in their cordial relationship and that her consent to sell the property be implied by her conduct. To this he added that the 1st Defendant bought a lorry and matatu in 2013 (the year of the agreement) and was in business with the 2 motor vehicles. His view was that the Plaintiff feigned ignorance of the husband’s source of money for purchase of the lorry and matatu.

95. His submission was that the Plaintiff’s evidence that in her evidence she testified that she did not know what the 1st Defendant’s contribution was but the partners acquired the entire Lodwar Plot at Kshs. 20,000/= adding. She contradicted this later by saying that each partner paid Kshs. 20,000/= making a total of Kshs. 80,000/=.

96. He then repeated the witness’ testimony where she stated that:“It is true that some of the money from the sale was used to pay school fees for the children. When he sold the plot our relationship with him was okay.”

97. He repeated the note by the Court at page 24 of the typed proceedings that the Plaintiff once again contradicted her previous evidence on her travel and stay with her husband in Kitale, and that for that reason she told the court outright lies, which was a clear evidence of coaching and hoping to rubbish what she had told the court in her first court appearance.

98. On the evidence of PW2, Patrick Kaburu, a brother of the 1st Defendant, the 2nd Defendant submitted that his evidence was not useful since he did not know the history of acquisition of the subject matter of this suit. He also submitted that the 1st Defendant adopted his witness statement but proceeded to contradict the same in the course of cross-examination by counsel for the 1st Defendant. He did not deny receiving the full purchase price for the suit property from the 2nd Defendant, but he claimed that he and the Plaintiff contributed to the purchase of the suit property. He submitted that this oral testimony was denied by and in his own witness statement and defence on record.

99. The 2nd Defendant then summarized his evidence and how he purchased suit property and on the assurances of the 1st Defendant that he was the sole owner of the property. He further stated his evidence that on the date of signing the sale agreement the Plaintiff was unwell.

100. After that, the 2nd Defendant submitted on whether the dispute was within the purview of Section 6 of the Matrimonial Property Act, 2013. About this provision he submitted that it defines Matrimonial Property as the matrimonial home or homes. He then contrasted it with the Plaintiff’s evidence which was that she and the 1st Defendant had a matrimonial home in Meru whereas the subject matter of this suit was a commercial property previously leased out for rent to the 2nd Defendant before it was sold to him. He also cited the provision and Section 7 of the Act and its import on matrimonial property. He included Article 45(3) (4) of the Constitution which he submitted ultimately gave rise to enactment of the Matrimonial Property Act.

101. He gave six (6) issues for determination. These were: -i.Whether Plot No. 49 (formerly 51A) Lodwar Township is Matrimonial property.ii.Whether the Plaintiff contributed to the acquisition of the said plot 49 (formerly 51A) Lodwar Township.iii.Whether the 1st Defendant required consent of the Plaintiff to sell the said plot to the 2nd Defendant if consent was required.iv.Whether the suit property was sold with the consent of the Plaintiff either implied or express.v.Whether this Honourable Court has jurisdiction to order specific performance of the contract between the 1st and 2nd Defendant.vi.What is the order of this court with regard to the costs of this suit.

102. He then submitted how the evidence showed that the subject matter of the suit was acquired in 1974 by four gentlemen in a partnership which was known as Muungano Group. According to the Plaintiff the four partners paid a total of Kshs. 20,000/= for the partnership property. She told the court that she did not know how much her husband contributed out of the said sum of Kshs. 20,000/=. Further, the Plaintiff did not know when the partnership between her husband and the other 3 ended.

103. Again, he submitted that the plot in issue was a commercial property owned by a partnership, which was, according to the 1st Defendant, terminated in 1985. He then submitted that the Plaintiff did not call any evidence that she in any way contributed to the improvement of their portion of the property after it was shared out in 1985.

104. He then pointed out material contradictions between the evidence of the Plaintiff and the 1st Defendant, which he said demonstrated evidence of collusion in the prosecution of the suit and outright lies by both the Plaintiff and the 1st Defendant. He then submitted that this cast doubt on the credibility of both the Plaintiff and 1st Defendant. He submitted that the 2 had a common agenda of taking back the suit premises for themselves and their children. His view was that the Plaintiff and 1st defendant in their common mission that they simply wanted the purchase price they have received and utilized to be treated as rent from the 2nd defendant and the 2nd defendant to hand back the premises to them. His further submission was that the investment made using the proceeds of sale of the subject matter of this suit is still benefitting the plaintiff and the defendant. They submitted that the suit amounted to abuse of the due process of the court.

105. He pointed out that in the initial witness statement of the Plaintiff she did not mention any contributions towards the purchase of the partnership property and that she came up with a figure of Kshs. 20,000/= as total payment for the property by the partners. That this was contradicted by the 1st Defendant who informed the court that his contribution together with the Plaintiff was Kshs. 20,000/= and each of the partners also contributed a similar amount thus a total of Kshs. 80,000/=. He termed this evidence as a falsehood. He said, in his statement of defence and witness statement the 1st Defendant categorically denied his wife (the Plaintiff) having contributed any money towards acquisition of the partnership property, which was the truth and that the 1st Defendant only obtained a portion of the partnership property (plot 51A) now 49 in 1985.

106. He submitted that the Plaintiff did not give evidence of contribution to the purchase or even afterwards to show that she contributed to renovate or improve the property in any manner in order to bring herself within the requirements set out in the Matrimonial Property Act, 2013. His view was that the Plaintiff was obligated to include in her pleadings an averment to the effect that the 1st Defendant whose sole name appears in the land records of the County Government of Lodwar held the subject matter in trust for the Plaintiff owing to her alleged contribution, yet there was no such pleading or evidence adduced in support thereof. He then cited Sections 107 and 108 of the Evidence Act on the burden of proof lying on the person who alleges the existence of certain facts to prove such an incident of the burden respectively and that it had not been discharged.

107. To him, ToTTo him, the 1st Defendant did not require consent of the Plaintiff to sell the suit property to the 2nd Defendant. He submitted that even so, looking at the circumstances in totality it was clear that the property was sold with the knowledge and consent of the Plaintiff. That the Plaintiff admitted that in 2013, presumably after the sale of the Lodwar property the 1st Defendant bought a truck and a public service vehicle (matatu) for business of the family, which was content of the 1st Defendant’s pleadings and that some of the money was used to pay fees for the family’s school going children. His view was that after the clearing the proceeds of sale of Lodwar plot, the 1st Defendant as the head of the family called a family meeting attended by the Plaintiff and their children where it was resolved to cancel the sale of the subject matter of this suit. Again, the fact that the Plaintiff was never in Turkana County Land Offices to protest the sale of Plot No. 49 was telling, but nothing in evidence had been tendered by the Plaintiff or the 1st Defendant that officers of the Turkana County Government declined to register a change of ownership of Plot No. 49 when they were approached by the 1st Defendant. He then submitted that an inference be drawn from the conduct of the 1st Defendant that he was not willing to transfer the plot since he had already held a family meeting and resolved not to do so.

108. He submitted that the Plaintiff is a witness unworthy of any credit since she treated the court to lies while under oath. She committed the offence of perjury and the 1st defendant seemed clearly to support her in their quest to reclaim the suit premises and outrightly lied to the court. He summed that it was a clear conspiracy between the Plaintiff and her husband (1st defendant). He urged the Honourable Court, on the one hand, to find that the Plaintiff had not proved her case on a balance of probabilities and dismiss it with costs to be paid by her and the 1st defendant, jointly and severally. On the other, that Court does find merit in the Defendant’s counterclaim on specific performance and grant the same with costs to be paid by the plaintiff and the 1st defendant.

Issues, Analysis and Determination 109. I have carefully considered the pleadings, the evidence of the parties, the law and the submissions. I find a number of issues before me for determination. These are:a.Whether Plot No. 51A (formerly No. 49) Lodwar Township is Matrimonial Property.b.Whether the sale of Plot No. 51A Lodwar Township was subject to grant of spousal consent .c.Whether the Plaintiff and 1st Defendant misrepresented themselves to the 2nd Defendant hence estoppel should operate against them.d.Whether the doctrine of unjust enrichment should militate against the Plaintiff and 1st Defendant.e.Whether the Plaintiff and 1st Defendant are credible witnesses.f.Whether the agreement made on 12/05/2012 should be cancelled.g.Whether the 2nd Defendant is entitled to a relief of specific performance in respect of the agreement dated 12/05/2012. h.What reliefs to grant and who to bear costs.

110. I will analyze the issues sequentially as listed above. Thus, I begin with the first one.

a. Whether Plot No. 51A (formerly No. 49) Lodwar Township is Matrimonial Property 111. This Court starts by analyzing the above issue because if it turns out that the property was matrimonial in nature, then the question that would immediately spring up would be whether there was need for spousal consent thereto and followed then by whether the transaction was void in terms of the law. If the answer is to the negative, it would leave the Court with fewer issues to deal with.

112. Under Section 6(1) of the Matrimonial Property Act, Act No. 49 of 2013, matrimonial property is defined as“(a)the matrimonial home or homes;(b)household goods and effects in the matrimonial home or homes; or(c)any other immovable and movable property jointly owned and acquired during the subsistence of the marriage.”The said statute then defines a matrimonial home as"…any property that is owned or leased by one or both spouses and occupied or utilized by the spouses as their family home, and includes any other attached property.”

113. The law is clear on what assets constitute matrimonial property. From the above provisions, the assets must be only those which are the matrimonial home itself and the household goods or items therein or property that is acquired or owned jointly by the spouses during the subsistence of the marriage. As for the home, it is the premises that are either owned or leased by one or both spouses and are occupied or utilized by them as their home. It extends to property attached to these premises.

114. According to the evidence herein, it is not in dispute the plot No. 49 which is now 51A situate in Lodwar Town is within the Municipality. Previously it was owned in the name of the 1st Defendant as part of the larger property of a partnership that was known as Muungano Partnership. From the evidence of PW1, DW1 and DW2, the property was all along used for business and lodgings. At first, it was let out to other people and after some time the 2nd Defendant was the tenant therein, up to the time that he allegedly bought it and continued to use it for business, as a landlord. Thus, in regard to the qualification as a matrimonial home of the Plaintiff and 1st Defendant, it did not.

115. Regarding to the definition of it being general matrimonial property as would be defined under Section 6(1)(c) of the Act, the question is whether the property was jointly acquired by the Plaintiff and the 1st Defendant as their own while their marriage subsisted. It was the Plaintiff’s and the 1st Defendant’s evidence that they got married in the year 1968. While there was no evidence given to that effect, their testimony that they both lived in Lodwar in that capacity since 1974. PW1 in her evidence in chief stated that they moved to Lodwar in that year.

116. About the acquisition of the property, DW1, the 1st Defendant testified that their partnership of four (4) people acquired the same in 1972. He stated, “the partnership of the 4 of us bought the plot in Lodwar in 1972. The partnership ended in 1976. ” PW1 testified that they bought the property in 1974. This Court finds that the year in mentioned by PW1 was the year when she moved to join her husband in Lodwar. By then, the property was already bought by the partnership of four.

117. Further, PW1 did not provide any evidence of contribution she made towards the purchase of the plot. Her evidence was that she did not know how much she did give but that she used to sell maize and help the husband in the tailoring business and that that was the money used to purchase the property. From time to time she contradicted her evidence when she would testify that she paid Kshs. 20,000/= while again saying that it was her husband who paid the sum and at other times testifying that they jointly made the contribution. While, this contradiction is not the only one she made, this Court did not find her a credible witness on the fact of how the property was acquired or of her contribution, if any. It is not enough that marriage alone guarantees a spouse to joint ownership of property acquired by the other spouse.

118. Of pertinent weight to the fact of acquisition was the evidence of DW1 and his pleadings. This Court will quote some of the relevant parts of both the evidence and the pleadings herein. In the Defence dated 21/12/2015 which the 1st Defendant filed on 06/01/2015, he pleaded at paragraph 3 that he was “the sole proprietor of the suit property.” To buttress his claim, he wrote a witness statement which he dated the same day as the Defence and he filed it on 06/01/2015. He adopted the witness statement as his evidence in-chief when he testified on 14/06/2022 He stated in it as follows,“… I bought suit property (plot No. 49) within Lodwar Township and the said plot is registered in my name as we were not joint owners with my wife…. I don’t deny living in Lodwar with my wife but I bought the suit land solely and the same was registered in my name.”

119. In my view, this statement accords with the testimony of DW1 that the property was bought by him in absence of the wife and that was why it was registered in his name. From his oral testimony the property was actually acquired in 1972. By that time the wife had not moved to Lodwar. From her testimony she moved to Lodwar in 1974. By then the property had been acquired by the four (4) partners. That may explain why she fumbled about how much and who of the two contributed to the purchase of the same.

120. I find that the later claim and testimony of the 1st Defendant that he bought the property jointly with the wife out of the proceeds of the business not consistent with his testimony before he saw ‘light’ and decided to change it to suit what the wife stated in her claim and testimony. For that reason, I do not find that the property was jointly acquired and for that reason it is not matrimonial property.

b) Whether the sale of Plot No. 51A Lodwar Township was subject to grant of spousal consent 121. On the one hand, the Plaintiff claimed that the sale of plot No. 51A (formerly 49) situate in Lodwar Township was sold without her consent. Her contention was that as a spouse of the 1st Defendant she was not consulted to before the sale, in order to give consent thereto. As such, the transaction ought to be declared void and the transaction be cancelled. This claim was supported by the 1st Defendant in his oral testimony. He stated that he did not consult his wife, and was willing to transfer the property to the 2nd Defendant. However, since the wife and children had objected to the transaction, it should be cancelled and the money the 2nd Defendant paid him as the purchase price be converted to rent for the entire period the 2nd Defendant was in occupation without paying him anything. Further, the 2nd Defendant testified and even submitted that the balance of the sum paid to him, if found to be due to the 2nd Defendant after the deductions of the rent from him, it could be refunded, and the property remains in the name of the 2nd Defendant to hold it in trust for himself, the wife and children.

122. The 2nd Defendant on the other hand refuted the claim and rebutted the evidence in that respect. He stated that he was an innocent purchase who was not only of value but had expended a lot of money on the property to the tune of Kshs. 1, 311,484/= as evidenced by the testimony of DW3 and his report that he produced as the 2nd D. Exhibit 3. He stated that the property was not a subject of the requirement of spousal consent hence the agreement was valid. He denied the evidence of PW1 that she was not aware of the sale.

123. It is clear now that from my finding in the previous issue, particularly at paragraph 120, the property herein was not matrimonial property. That being the case it was not subject to the requirement and grant of spousal consent for the transaction to be valid. I reject the claim by both the Plaintiff and the 1st Defendant on that score.

124. Moreover, even if the property would have been matrimonial property as claimed by both the Plaintiff and the 1st Defendant, their claims and evidence could not find a backing in law in order to lead to this Court declaring the transaction void. I hold so because the law requiring that spousal consents be given in regard to dispositions in land is the Land Registration Act, Act No. 3 of 2012 (and by extension to charges, the Land Act, Act No. 6 of 2012 as amended in 2016). Section 28(a) thereof is the one that basically obligates parties to respect spousal consent requirement. The law came into force or commenced on 02/05/2012.

125. The evidence of the parties herein is simple: the 2nd Defendant was a tenant of the 1st Defendant until some time in 2012 when the 1st Defendant approached him to buy the suit land because he (landlord) was in financial difficulties. But the 1st Defendant on his part stated that it was the 2nd Defendant who approached him to sell to him the property. Be that as it may, the two agreed to the transaction, and the 2nd Defendant started paying him the purchase sum in instalments. According to DW1, the 2nd Defendant paid the purchase sum in three years.

126. Comparing the oral testimony of the 1st Defendant and the documentary evidence by PW1 and DW2, which were the copies of the agreement entered into by the two Defendants over the property, I am of the considered view that the agreement to sell the property must have been commenced sometime early in the year 2012. I hold so because the 1st Defendant himself stated in oral testimony that it took the 2nd Defendant three years to complete the instalments. DW1 produced the agreement of sale in question and the acknowledgment as 2nd D. Exhibit 1 and 2 respectively. 2nd D. Exhibit 1 and 2nd D. Exhibit 2 show that they were signed on 12/05/2012 and 24/06/2014. Thus, by working the period of three years backwards, the payment of the money in installments must have commenced about January or February of 2012. The paragraph reads as follows, “That the vendor acknowledges receipt of Kshs. 700,000/= (Seven Hundred Thousand Shillings Only) from the purchaser before signing of this agreement to mark the commencement of the same.” (Emphasis supplied by underline).

127. From the phrase quoted, it means that the vendor and purchaser entered into the sale transaction way before 12/05/2012 when they decided to reduce the agreement into writing as a mark of confirmation that the Kshs. 700,000/= had already been received. My finding on the period commencing earlier in 2012 than 12/05/2012 is supported clearly by the import of paragraph 2 of 2nd D. Exhibit 1. This view also finds ground on the testimony of DW1 both in examination in-chief and cross-examination where he stated that he was paid the money in instalments. Again, PW1 herself testified that when the 2nd Defendant visited her home in search of the husband, she wanted to know what he was up to and he told her that he had bought “’Msichana yangu’ (my girl) in Lodwar.” She insisted to know the meaning and was informed that it was the plot that had been sold. It is clear that if this was the date of the agreement of 12/05/2012, then the land had been sold way before and the parties were only formalizing the transaction on the material date.

128. The question that remains to be answered then is, since the agreement for sale was entered into much earlier, was it subject to the application of the law on spousal consent? In my view it was not. The transaction was entered into before the law on spousal consent came into existence. Therefore, the claims be both the Plaintiff and the 1st Defendant about lack of the requirement were not merited. In my view the two parties woke up to find something to hang onto to frustrate the contract but it is not to their advantage.

c. Whether the Plaintiff and 1st Defendant misrepresented themselves to the 2nd Defendant hence estoppel to operate against them 129. The Plaintiff claimed and testified that she was not aware of the transaction between the 1st Defendant and the 2nd Defendant about the sale of the suit land between themselves. The 1st Defendant also claimed as much, both in his Amended Defence and testimony. The 2nd Defendant denied the claim. Instead he stated that the two knew of the transaction well and they only colluded later as family to defeat the sale.

130. The Plaintiff testified that she got to know that the property had been sold when the 2nd Defendant visited her home inquiring of the whereabouts of the husband. Upon her asking him why he sought the spouse the 2nd Defendant informed her in coded language that he had bought her had bought ‘msichana yangu’ (my girl) in Lodwar. She wished to have a clarification which then was that he had bought the land. She neither protested nor asked the husband not to proceed with the transaction. She kept quiet, from then (12/05/2012) all the way up to sometime after June, 2014 when the registration is being made and refused that she comes up with the objection through her son and herself later. Had she objected to the transaction any time after she was informed that ‘msichana yangu’ in Lodwar was being sold, the 2nd Defendant could not have paid the further sum of Kshs. 800,000/= nor expended the sum of Kshs. 1,311,484/= on the renovations, which became costly on his part.

131. Again, if the husband had not informed the 2nd Defendant before the lawyer who drew the agreement that the Plaintiff was unwell and indeed caused him to buy medicine to take to her, after the agreement was reduced into writing, and further having kept quiet since then all the way to 24/06/2014 when he received the balance of Kshs. 800,000/= and even thereafter, the 2nd Defendant could have been put on notice that the transaction could not succeed. The 2nd Defendant could have not proceeded further and even expended his money on the project. For the above reasons I find that both the Plaintiff and the Defendant misrepresented themselves to the 2nd Defendant that they indeed the 1st Defendant was willing to sell to him the property. By the said representation the 2nd Defendant acted to his detriment believing that he was acquiring property in the plot being the suit land. He therefore changed his position, upon their promise. This amounted, first to misrepresentation on their part and also it translated to promissory estoppel.

132. The doctrine of promissory estoppel is now well settled. Its purpose is to stem out conduct that deliberately is given out to another and causes that other to act on it believing it to be true and thereby causes that other to suffer in one way or other. The party who gives the promise will be estopped from resciling to his former position. The 2nd Defendant is entitled to use the same as a shield in this case, as was stated in Argy Trading Development Co Ltd v Lapid Developments Ltd [1977] 3 All ER 799.

133. In the seminal case of Central London Property Trust Limited v High Trees House [1956] 1 ALLER 256, it was held:“a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made and which was in fact acted on”.

134. The learned authors of the Halsbury’s Laws of England 3rd Ed. Vol.15 at paragraph 344, state as follows:-“When a party has, by his words or conduct, made to the other a promise or assurance which was intended to affect the legal relations between them and to be acted on accordingly, then, once the other party has taken him at his word and acted on it, the other who gave the promise or assurance cannot afterward be allowed to revert to their previous legal relations as if no such promise or assurance has been made by him, but he must accept their legal relations subject to the qualification which he himself has so introduced.”

135. The Court of Appeal has quoted the above excerpt when it decided the Katiwa Nguli v Bamburi Cement Limited [2015] eKLR which was about a signed discharge voucher regarding the settlement of some debt. It is conduct such as that of both the Plaintiff and the Defendant that equity always steps in the clip its wings and nib it in the bud so that parties such as those before me do not benefit from their inequitable behavior. For these reasons I would find that the Plaintiff is estopped from claiming that the property is left to be in the hands of the 1st Defendant in his and their trust as family.

d. Whether the Plaintiff and 1st Defendant are credible witnesses 136. I would say a thousand things about the Plaintiff and her husband in regard to whether they were credible witness or persons whose testimony can be sufficiently relied on by the Court to make a finding in their favour. The two parties proved to be worthless witnesses in their claims. Their evidence was nothing but a nice conceived game of dice aimed at ensuring that the 2nd Defendant does not receive his justice in the whole transaction before me. First, PW1 stated that she was not in terms with the husband. But turned out that they were actually lovebirds in their twilight years who could and did things together out of the sight of the Court but pretended to be haters of each other when the situation called for truth. When the suit came up for hearing for the first time PW1 testified she and the 1st Defendant had traveled all the way from Meru to Kitale using the same matatu (public vehicle) and slept in the same hotel in the same room and came to Court together only for them to turn to question each other by way of pretentious cross-examination. When she was cross-examined on the subsequent day about the above she changed her testimony completely to say that she never stated the above, she and the 1st Defendant never ever slept together in the hotel, and that ever since she sued him they do not talk, and that even at home, although they live in the same house they do not talk at all. While the Court does not encourage break-up of homes and families, this conduct of the two parties sounds like a movie from Hollywood!

137. Further, PW1 gave extremely contradictory testimony on how she contributed to the acquisition of the property. As for DW1 he filed Statement of Defence that completely denied the claim of the Plaintiff as being a joint owner of the property right from the beginning and that he did not consult her about the sale. This was supported by the written evidence adopted on oath by the party, only for him to change the entire Defence to the opposite and purport to give evidence to that effect.

138. The credibility of a witnesses goes to the root of any issue in dispute. Absent of it the truth cannot be established and injustice triumphs. Without credible evidence justice bleeds and cries from outside of the window to enter. A false witness is a worthless witness. False witnesses and their evidence are not only abhorred in the legal field but even in the spiritual arena. For the legal arena, that is why Sections 154, 155, 157 and 163 of the Evidence Act were enacted. For the spiritual, Exodus 20: 19 commands that you shall not bear false witness against your neighbor, and Proverbs 19:9 says that “A false witness will not go unpunished, and he who pours out lies will perish.”

139. In my view the two parties were and shall remain to be totally untrustworthy as I have found. This Court does not wish that they perish as the Holy Book decrees: it is not too late to undo the lies. It calls on them to repent before they make any further steps in this matter.

e) Whether the Agreement made on 12/05/2012 should be cancelled 140. The Plaintiff prayed for the cancellation of the agreement on the sale of Plot No. 51A (currently plot 49) Lodwar Township entered between the 1st and 2nd Defendants since it was null and void. From the evidence herein and the analysis above, I find that the relief cannot be granted. If anything, I find that the agreement, which was dated 12/05/2012 was and is valid for all wants and purposes of the transaction.

f) Whether the 2nd Defendant is entitled to a relief of specific performance in respect of the agreement dated 12/05/2012 141. As summarized at paragraphs 17 of 18 of this judgement, the 2nd Defendant filed an Amended 2nd Defendant’s Statement of Defence and Counterclaim on 30/07/2019. In the Counterclaim he pleaded that he took possession of the suit premises and undertook substantial renovations to tune of Kshs. 1,311,484/=. He denied the contention that the suit premises were matrimonial property. Instead he accused the 1st Defendant and the Plaintiff of collusion after receiving and utilizing the money from the purchase of the property for the benefit of the family, He averred that having paid the full purchase price and renovated the premises and increased its value and its character he was entitled to an order of specific performance from the 1st Defendant in default of which the Deputy Registrar of the Court does execute the necessary transfer instruments to have the property transferred unconditionally to the 2nd Defendant. In the alternative he prayed for a refund of his money pegged on current market value of the property as per the Valuation Report, costs of the Counterclaim and interest at 14% per annum.

142. This Court will not repeat the details of the evidence in support of the Counterclaim. Much has been given on it above. Suffice it to say that DW2 testified that after completing the payment of the purchase price of Kshs. 1,500,000/= as evidenced by the 2nd D. Exhibit 1 and 2, he embarked on renovating the premises to the tune of the sum of Kshs. 1,311,484/= as per the evidence of DW3 and the documentary evidence marked as 2nd D. Exhibit 3. First of all, I have carefully analyzed D. Exhibit 3. I am convinced that there are no exaggerations in it and that I am satisfied that expenditure indicated therein as Kshs. 1,311,484/= was the amount of money spent in the renovations of the premises. I also find that the evidence of DW3 was clear, unshaken in cross-examination and supported by the documentary evidence in form of 2nd D. Exhibit 3.

143. The Plaintiff asked this Court to cancel the agreement and therefore the acknowledgment marked as D. Exhibit 1 and 2 respectively and find them null and void. I have rendered myself on that issue above. The 1st Defendant denied the Counterclaim and asked this Court to find that he did not consult the Plaintiff and indeed the family over the sale in this question. It is not gainsaid that the family were aware of the sale and actually benefitted from the proceeds thereof, and while things were comfortable for them as they enjoyed the benefits of the sale, they never complained about it. The 1st Defendant asked the Court to convert the sums paid to him, which were fully acknowledged receipt of to rent. He also asked that the property remains in his name for the family, although he stated that he was willing to transfer it save that the family objected. I have made my findings on those issues, and stated further that the doctrine of promissory estoppel which may also be beefed up with the equitable doctrine of unjust enrichment work against the claims of both the Plaintiff and the 1st Defendant.

144. From the above analysis, I find that the 2nd Defendant has proved on a preponderance of evidence that he is entitled to the reliefs sought in the Counterclaim and I award the same, with costs.

g) What reliefs to grant and who to bear costs 145. I have found that the Plaintiff’s Claim fails. I have also found that the Defence by the 1st Defendant is unmeritorious in all its nature and form. I have also found that the 2nd Defendant’s defence is meritorious and that his Counterclaim succeeds. While the 2nd Defendant’s Counterclaim was framed as a counterclaim I note that it was against the 1st Defendant who was said to be the registered owner of the suit land. Thus, in terms of Order 1 Rule 24 of the Civil Procedure Rules, it should have been framed as a of Claim against co-defendant. But even without framing the defence as such, it is clear from the pleadings that the 2nd Defendant was sufficiently aware of the claim made against him by the 2nd Defendant. That is why on 10/03/2022 he filed “The 1st Defendant’s Defence to the 2nd Defendant’s Amended Defence and Counterclaim” in which he sufficiently traversed the averments in the Counterclaim. Furthermore, on 14/06/2022 he gave evidence on the same. Thus, by virtue of Article 159(2)(d) of the Constitution of Kenya and Section 3A of the Civil Procedure Act, I exercise my discretion to excuse the anomaly in the drafting of the pleading and deem the Counterclaim as a claim against a co-defendant as it was meant to be. In the end therefore, I dismiss the Plaintiff’s claim with costs to the 2nd Defendant and enter Judgment in his favour as per the Counterclaim against the 1st Defendant on the following terms:a.An order of specific performance to the effect that the 1st Defendant do and is hereby ordered to sign all documents for the, and, transfer Plot No. 51A (previously plot 49) Lodwar Township to the 2nd Defendant, Gidiel Mwiti M’Arimi, within 30 days of this judgment in default of which the Deputy Registrar of this Court does execute the necessary transfer instruments in favour of the 2nd Defendant.b.Costs of the Counterclaim.c.Interest on costs at court rates from the date they are assessed till payment in full.

146. Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED AT KITALE VIA ELECTRONIC MAIL THIS 2ND DAY OF MARCH, 2023HON DR IUR FRED NYAGAKAJUDGE, ELC KITALE