SAMWEL NDIBA & ANOTHER V JOHN GACHOKA KIHARA & 2 OTHERS [2012] KEHC 4497 (KLR)

1. Civil Appeal

2. Subject of Subordinate Court Case

BURIAL DISPUTE

2. 1           Deceased filed land suit in the year 1979.

2. 2           Husband died in 1954, leaving her a young

widow with two daughters.

2. 3           Father in law died in 1957.

had 3 wives.

2. 4           Father in law left instructions that land be

subdivided amongst the houses:-

House No. 1           –              16 acres

House No. 2           -              15. 75 acres

House No. 3           -              14 acres

2. 5           Deceased came from House No. 2 as a

daughter in law.

2. 6           She had a further 6 children out of

wedlock.

2. 7           As she was a widow the fear that she might sell

land registered in name of Peter Kihara Gathoga

(the 1st born son in the 1st house.)

2. 8           Peter Kihara Gathoga sub-divides the land on

19th January 1979 being Githunguri/Githoga/13

consisting of 12. 16 hectares.

2. 9           Deceased filed suit High Court of Kenya case

No. 3859/79.

2. 10         Trial commenced before Shield J

19th May 1993

20th May 1993

26th May 1993

i)             Hon. Judge’s contract not renewed.

ii)            A total of 4 witnesses heard.

2. 11         Trial commences before Kubo J

12th November 2008

5th May 2009

i)             A total of 2 witnesses heard

and defence closed.

Hon. Judge’s contract not renewed.

2. 12         Hon. Chief Justice (Gicheru CJ) nominates

Nambuye J to write judgment.

2. 13         Judgment delivered on 24th September 2010.

2. 14         During trial original (HCC 3859/79) defendant

passes away.

2. 15         Respondent original defendant HCC 3859/79

changed advocates.

2. 16         5th November 2010, O.P. Ngoge not on record

request for stay of execution

2. 17         Exparte orders granted

Mwera J.

2. 18         12th November 2010 advocate for original

defendant in HCC 3859/79 annouces that O.P. Ngoge

will take over proceedings.

2. 19         Hon. Judge orders all parties to appear for mention on

19th November 2010 to map the way forward.

Status quo to hold. “Although Mr Ngoge got some

orders on 5th November 2010 he is yet to properly

come on record.”

2. 20         19th November 2010 duty judge Dulu J mention

before Mwera J 3rd December 2010.

2. 21         3rd December 2010, Dulu J orders hearing date in

registry.

Note: no interim orders 19th November 2010 to

14th February 2011.

2. 22         14th February 2011 duty Judge Mwera J orders

application served.

2. 23         18th February 2011 duty judge Mwera J interparte

applcation adjourned to 1st March 2011.

2. 24         1st March 2011 duty Judge Mwera J – O.P. Ngoge

does not wish Hon. Judge to handle matter.

2. 25         Hon. Judge – obliges and declines to handle

file.

2. 26         No further action taken on file after 26th May 2011.

Muchelule J gives orders two applications be

heard together.

(14th April 2011 and 4th July 2011)

2. 27         Judgment of Nambuye J dated 24th September 2010.

That deceased (then the widow from 1954) be given

land parcel Githunguri/Githiga/1121 consisting of

10. 7 acres.

2. 28         Execution of orders by deputy registrar and

deceased. On 21st December 2010 land transferred to

deceased.

2. 29         Deceased original plaintiff passes away.

Radio announcements made 16th August 2011 for

service on 19th August 2011.

Subject of appeal case HCA 430/11

2. 30         Original plaintiff 1 & 2 Samwel Ndiba alias Senior

Samwel Ndiba alias Junior file suit in the law

courts, Githunguri PMCC 70/11

2. 31         Hon. Magistrate grants ex-parte orders

(19th August 2011) to restrain burial of deceased

original plaintiff in HCC 3859/79

2. 32         Interparte hearing on 25th August 2011

2. 33         Original plaintiff 1&2 appellant change advocates from

G K Gatere & Co Advocates to Kingara & Co Advocates

2. 34         Hon. Magistrate held application for injunction

Having no merits be dismissed. Burial to proceed.

2. 35         7 days stay of execution granted.

2. 36         2 Original plaintiffs/appellants file appeal CA 430/11

3. Appeal filed on 6th September 2011

3. 1           File before Duty judge Mwera J

3. 2           Certificate of urgency application 6th September 2011

granted for stay of execution restraining respondent

from burying widow on suit land.

3. 3           Application for stay of execution 6th September 2012

confirmed by court (Angawa J) pending hearing of

appeal.

3. 4           Further order, appeal be heard before Nambuye J.

3. 5           Nambuye J elevated to court of appeal bench.

3. 6           Parties return to Civil Appeal, Civil Division

on 6th March 2012.

3. 7           Hearing of appeals and direction – 21st March 2011.

4. Appeal hearing

i)Submissions by appellant original plaintiff

4. 1           Appeal against ruling of Hon. Magistrate dismissing

application for injunction restraining respondent

from burying deceased widow.

4. 2           Respondent not at liberty to bury deceased.

4. 3           Once judgment HCC 3859/99 delivered

24th September 2010 application made for stay of

execution and granted by Mwera J on 5th October 2010

that read:

i)             Matter certified urgent

ii)            Allowed O.P. Ngoge to come on record

iii)           Order No. 2 (stay)

4. 4           Stay of execution till determination of appeal.

4. 5           Submissions by respondent that orders had lapsed

after 5th October 2010 not true.

4. 6           Hon. Trial Magistrate on 2nd September 2011 made

findings order had lapsed.

4. 7           By dismissing application, Hon. Magistrate has gone

against Mwera J’s orders.

4. 8           Prayed for appeal to be allowed.

ii)    Submissions by Respondent

4. 9           Appeal would not be rendered nugatory if burial

takes place.

4. 10         Advocate went to court and obtained exparte orders.

4. 11         Orders lapsed.

4. 12         Hon. Magistrate gave reasoned judgment

4. 13         Deceased widow had been a squatter on her own

land for 31 years before her demise.

5. Held:

5. 1           The Hon. Trial Magistrate was correct in its

findings.

5. 2           The Hon. Deputy Registrar Ougo as she then

was, was correct in signing forms in execution

of court judgment of 24th September 2010.

5. 3           There was no orders of court at time transfer

to land was made.

5. 4           Appeal dismissed. Orders of Hon. Magistrate

upheld.

5. 5           Deceased be buried.

13. Case law:

14. Advocates   :

i)S. Kingara instructed by S. Kingara & Co Advocates for the

Appellants/original plaintiffs

ii)M.K. Chebii instructed by M/s M.K. Chebii & Co Advocates for the

Respondent/original defendants

SAMWEL NDIBA alias SENIOR ……..…….......……………..... 1ST APPELLANT

SAMWEL NDIBA alias JUNIOR ……………………………… 2ND APPELLANT

VERSUS

JOHN GACHOKA KIHARA…………………..…………....… 1ST RESPONDENT

JOSEPHAT GATHOGA KIRAHA ………………………….. 2ND RESPONDENT

DAVID MBURU KIHARA …………………………………… 3RD RESPONDENT

(Being an appeal from the Ruling of the Hon. Mr B M Nzakyo – Resident Magistrate – Githunguri dated the 2nd September 2011 in Githunguri PMCC 70 of 2011)

J U D G M E N T

I.INTRODUCTION

1. Esther Wangari Kihara, now deceased was widowed at a young age in 1954. Her husband left her with two daughters. One is now married whilst the other is single. Her father in law passed away in 1957. He himself had three wives and had divided his land between the three houses:-

House No. 1 …      16 acres

House No. 2…      15. 75 acres

House No. 3…      14 acres

2. It is alleged that her father in law gave instructions that the land for House No. 1 and House No. 2 be registered in the name of one Peter Kihara Gathonga (the 1st born son in the 1st house.) The reasons being that the widow might sell the land.

3. On 19th January 1979 Peter Kihara Gathonga sub divided the land of the House No. 1 and 2 totalling to 32. 75 acres or 12. 16 ha into parcel of

5 acres and one 10 acres to the original title then known as Githunguri/Githiga/13.

4. The late Esther Wangari Kihara filed suit at Nairobi being HCC 3859/79. Her trial commenced before Shields J on

19th May 1993

20th May 1993

26th May 1993

5. Upon hearing 4 witnesses the Hon. Judge’s contract not being renewed was not able to proceed with the matter.

6. Whereas between 1993 and 2008 the matter was adjourned by several judges of which part of the problem being that the deceased original defendant passed away, it was not until the year 2008 that the matter came before Kubo J. He proceeded with the trial on

12th November 2008, 5th May 2009 and heard two more witnesses. The defence was closed and the only thing pending was the judgment to be delivered. The Hon. Judge’s contract was not renewed.

7. The Hon. the Chief Justice (Gicheru CJ) nominated Nambuye J (as she then was) to write the judgment.

8. The judgment was delivered on the 24th September 2010.

9. The defendants in HCCC 3859/79 changed advocates.

10. The original advocate who was on record was G Kamonde. Another advocate O.P. Ngoge appeared before Mwera J and obtained orders of stay of execution exparte. O.P. Ngoge was not yet on record. The

Hon. Judge not aware of this directed that the matter be mentioned on 12th November 2010.

11. On 12th November 2010 G Kamonde announceded to the Hon. Judge that O.P. Ngoge would be taking over the proceedings.

12. The Hon. Judge orders that all the parties appear before him as duty judge for mention on 19th November 2010 “to map the way forward. Status quo to hold.” The Judge commented in writing.

“Status quo to hold although Mr Ngoge got some orders on 5th November 2010, he is yet to properly come on record.”

13. On 19th November 2010, Mwera J was not available. The duty Judge Dulu J mentioned the matter and ordered that parties appear before Mwera J on 3rd December 2010. On the 3rd December 2010 the file went before Dulu J as duty judge who gave further orders that parties to take dates in the registry. There were no interim orders granted by Dulu J.

14. On 14th February 2011, the file came before Mwera J seeking orders on an application by O.P. Ngoge. It is unclear which application this was. The advocate was ordered to serve the application and come for hearing on 18th February 2011.

15. The Hon. Judge ordered on 18th February 2011 that there be an interparte application and adjourned the matter to 1st March 2011.

16. On 1st March 2011 O.P. Ngoge announced to the duty judge, Mwera J that he does not wish the Hon. Judge to handle the matter. The

Hon. Judge obliged and declined to handle the file.

17. No interim orders had been issued since 19th November 2010 to 1st March 2011.

18. Whereas on 26th May 2011 Muchelule J made orders that two applications dated 14th April 2011 and 4th July 2011 be heard together, no further action had been taken on the file since 26th May 2011.

19. The judgment in HCCC file 3859/79 of Nambuye J dated the

24th September 2010, ordered that Esther Wangari Kihara (now deceased) (but then a widow since 1954) be given land parcel Githunguri/Gathiga/1121 consisting of 10. 7 acres. She was entitled to 15. 75 acres but 5 acres had been given to a person from the same house (who is now the administrator of her estate.)

20. Upon the execution of the orders of the judgement, the Hon. Deputy Registrar together with the deceased widow transferred the suit land into the deceased name on the 21st December 2010.

21. Unfortunately, the deceased original plaintiff in HCCC 3859/79 land case, passed away. The two appellants from the original defendant’s house in case HCC 3859/79 being Samwel Ndiba alias Senior and Samwel Ndiba alias Junior upon learning of the demise of the late Esther Wangari Kihara on the “Inooro” radio announcement on

16th August 2011 filed suit in the Githunguri courts. Both were represented by M/s G K Gatere & Co Advocates.

22. By an application dated 18th August 2011, the Hon. Trial magistrate in PMCC 70/2011 at Githunguri courts granted exparte orders restraining three respondents

i)John Gachoka Kihara

ii) Josephat Gathoga Kihara

iii)David Mburu Kihara

from burying the deceased widow original plaintiff in HCC 3859/79.

23. An interparte date was given for 25th August 2011. The original plaintiff 1 & 2 and appellant herein, namely Samwel Ndiba alias Senior, Samwel Ndiba alias Junior changed advocates. They engaged the services of M/s Kingara & Co Advocates.

24. On the 2nd September 2011, the Hon. Magistrate, upon hearing the arguments on this matter by both sides dismissed the application for injunction as having no merits. He nonetheless granted 7 days, stay of execution. The advocate was able to file appeal on 6th September 2011 and applied before the duty judge – Mwera J for stay of execution restraining the burial of the widow on the suit land.

25. This was granted for 21 days. The file was placed before me for hearing interparte. On the 29th July 2011, Hon. Mwera J clarified his orders of stay of execution. That it was not given until the hearing of the appeal but until the hearing of the application dated 4th October 2010.

26. Upon hearing the parties, this court confirmed the orders of Mwera J. That there be a stay of execution until the finalization of the present appeal. That the appeal be heard by Nambuye J who was aware of the matter, through her earlier judgment.

27. Unfortunately, the Hon. Judge was not available to hear the appeal as she was elevated to the Court of Appeal. The file came back to this court on 6th March 2012.

28. The appeal was ‘fast tracked’ due to the urgency that the deceased widow has been lying in the mortuary for up to six months.

29. The appeal including the directions was heard on 21st March 2011.

IISUBMISSIONS

i)    By the Appellant’s/Original Plaintiff 1 & 2

30. The appeal before the court is against the Hon. Magistrate dismissing the application for injunction that would have restrained the 3 respondents from burying the deceased widow.

31. Once the judgment in HCC 8589/79 was delivered on

24th September 2010, an application had been made for stay of execution and granted by Mwera J on 5th October 2010 that read:

“i)Matter certified as urgent

ii) Allowed O.P. Ngoge to come on record

iii)Order No. 2 (stay)”

32. The stay of execution was till the determination of the appeal. whereas the respondent had stated the orders of stay had lapsed after 5th October 2010, this fact was incorrect.

33. the Hon. Trial Magistrate also made finding on 2nd September 2011 that the orders of stay had indeed lapsed.

34. By dismissing the application of 18th August 2011, the Hon. Trial Magistrate had gone against orders made by Mwera J, the duty judge.

35. In this appeal, the appellant prayed that it be allowed. The orders of the Hon. Magistrate be set aside and substituted with orders that an injunction restraining the respondent do issue.

ii          By The Respondent/Original Defendant

36. It was the respondent’s submissions that the appeal would not be rendered nugatory if the burial would take place.

37. The advocate for the appellant’s had gone to court and obtained exparte orders. The Hon. Magistrate on hearing both parties gave a reasoned judgment/ruling.

38. This matter should come to rest. The deceased widow had been a squatter on her own land for 31 years before her demise.

39. The respondents prayed the appeal be dismissed.

40. Whereas this appeal is related extensively with HCC 3859/79, now finalized, I have avoided to go into the merits and demerits of that land matter on grounds that it is a subject yet to be heard in the Court of Appeal. the successful party in that case was awarded land parcel

LR Githunguri/Gthiga/112 comprising of 10. 7 acres.

41. The issue that arises in this appeal is that of “stay of execution” of the judgment of the court in HCC 3859/79.

42. It was the appellants’ argument that in HCC 3859/79, being dissatisfied with the orders of Hon. Nambuye J, they wished to file appeal and stay of execution of transferring the suit land into the deceased widow/original plaintiff’s name.

43. They obtained these orders on the 5th October 2010. That whilst the orders were persisting, the deceased in collusion with the deputy registrar transferred the land to the deceased’s name when she was alive. This was in disobedience of Mwera J’s orders. It was further alleged that the Hon. Magistrate disallowed orders of injunction which indirectly amounted to the disobedience and or orders issued contrary to the High Court through Mwera J.

44. I had outlined each step taken in both files being HCC 3859/79 and PMCC 70/2011 together with this appeal CA 430/2011.

45. When O.P. Ngoge appeared before Mwera J, he had not officially come on record. He obtained exparte orders. It is therefore not correct that the orders of Mwera j included the words, “allowed O.P. Ngoge to come on record.” If this was the situation, then Mwera J would not have on 12th November 2010 stated that on 5th October 2010 that

“Although O.P. Ngoge (not on record) got some orders on 5th November 2010, he is yet to properly come on record.”

46. The Hon. Judge was concerned that orders were issued without the advocate properly being on record.

47. As of 19th November 2010 when this file was before duty judge,

Dulu J, no extension of interim orders were made. No orders of status quo was recorded on the file. It therefore meant that both Dulu J and Mwera J never issued any further orders as far as “stay of execution” was requested.

48. It is with this understanding that this court can reliably state that her honour Ougo, deputy registrar (as she then was) acted within her powers and as ordered by the court in its judgment of HCC 3859/79 and transferred the property together with the deceased to her name. There were no orders of the court that would have been contravened.

49. The issue in this appeal was the title was fraudulently transferred to the deceased, when she was alive fraudulently. That she was aware of the intended appeal.

50. After perusing all the three files (HCC 3859/79, CMCC 70/11 & CA 430/11), there was no order of stay of execution in force. The order that had been obtained was so done by an advocate not on record.

Even if per chance he had been on record as of 19th November 2010, the orders had never been extended by this court. I would then dismiss this line of argument.

51. Should the orders of injunction be reinstated to stop the burial of the deceased?

52. It had been commented by Nambuye J that the deceased had been a squatter from 1979 on her own land when the original defendant

(HCC 3859/79) had subdivided the land on 19th January 1979, depriving her of 15. 75 acres that was rightfully hers.

53. Here is a young woman widowed in 1954. She is deprived her land on grounds that she is still young and might sell it. She becomes old and the said land is subdivided depriving her of the access to land. She dies and for six months or more, her body lies in the mortuary on grounds that she is not permitted to be buried on the land pending an intended appeal to the Court of Appeal.

54. The right to own property, the right to be buried on land that she has lived all her life, is an inherent right. This is more so further, when she holds title deed for land that she is said she is not to be buried on.

55. I find that the Hon. Trial Magistrate in a very well reasoned ruling came to the correct conclusion. That there would be no injunction issued against the respondents. The deceased being holder of the title, the law provides that no injunction can issue against the one who holds title to land. The respondents herein, I believe, were sued as the funeral committee.

56. I hereby dismiss this appeal. The orders of the Hon. Magistrate dismissing the application of 18th August 2011 are upheld.

57. The respondents be at liberty to bury the deceased. The officer commanding the police station Githunguri and OCPD are to provide security and to ensure peace is maintained.

58. This appeal having been dismissed there would be costs to the respondents in this appeal. There will be costs to the respondents, original defendants in the magistrate’s court case.

DATED THIS 28TH DAY OF MARCH 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

iii)S. Kingara instructed by S. Kingara & Co Advocates for the Appellants/

original plaintiffs

iv)M.K. Chebii instructed by M/s M.K. Chebii & Co Advocates for the  Respondent/original defendants