Solomon Ndegwa Kamau v Lawrence Hindu & Witeithie Gwaka Investment Ltd [2021] KEELC 3064 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC APPEAL NO. 38 OF 2019

SOLOMON NDEGWA KAMAU..............................................APPELLANT

AND

LAWRENCE  HINDU......................................................1ST RESPONDENT

WITEITHIE  GWAKA INVESTMENT LTD...............2ND RESPONDENT

(Appeal from the decision of the Senior Resident Magistrate, the Hon. G. Omodho  delivered  on the 17th day of April , 2019 in

the  Chief Magistrate’s  Court at Thika,  Civil Case  No. 890 of  2014 )

BETWEEN

SOLOMON NDEGWA KAMAU..................................................PLAINTIFF

VERSUS

LAWRENCE HINDU............................................................1ST DEFENDANT

WITEITHIE GWAKA INVESTMENT LTD.....................2ND DEFENDANT

JUDGMENT

The Appellant Solomon Ndegwa Kamau,  was the Plaintiff inThika CMCC No. 890 of 2014, while the Respondents were the Defendants in the said suit. Vide an Amended Plaint dated 18th February 2015, the Appellant(Plaintiff) had sought for the following orders against the Respondents (Defendants);

a) A Declaration that the Plaintiff is the bonafide and legal owner of Plot 176.

b)  That  an order of eviction, demolishing of  any structures or an order giving vacant possession to be rendered by the Defendants and to allow the Plaintiff peaceful occupation and possession thereof.

c)  A cancellation of the  1st Defendant  title to land  parcel  Juja/Kalimoni  block 10/176 and the same to be registered in the Plaintiff’s names.

d) Costs  and interests of the suit

e)  Any  other  relief  that this Honourable  Court may deem fit  and just.

In his statement of Claim, the Plaintiff(Appellant) averred  that he is a member  of the 2nd Defendant(2nd Respondent )  and harbors a Share Certificate  No. 4666, and also  records depicting  the same . That the Plaintiff ( Appellant) was the absolute owner  of Plot 176,  depicted by the  mentioned share certificate  which was issued by the 2nd Defendant( Respondent)  to prove ownership of land  on 27th March 1991. Further that the Plaintiff( Appellant)  had not sold  or disposed  off the said land  to anyone especially the 1st Defendant( 1st Respondent ), and that the  land is not co owned  with the 1st Defendant(1st Respondent).  That  the Defendant (Respondent)  had illegally, fraudulently  and unprocedurally  invaded onto the Plaintiff’s (Appellant’s) plot and started committing  acts of waste  and wanton damage by putting up  a permanent house.

The Plaintiff (Appellant) particularized  fraud on the part of the Defendants (Respondents)  as; encroaching  or invading  the Plaintiff’s (Appellant’s) plot without  consent, permission  or authority, building permanent  house thereon  without  the Plaintiff  authority  or permission; trespass  to private  property,  by the 2nd Defendant  illegally allocating  the suit plot to the 1st Defendant; the Defendants working in cahoots with each other to defraud the Plaintiff’s land, by the defendants working in cahoots to obtain registration  by false  pretenses and concealing material facts.

The suit was contested and the  1st Defendant ( 1st Respondent) filed a  statement of Defence dated  17th November 2014, and  denied all the allegations  made in the Plaint. He contended that the suit is misconceived, bad in law and  the Plaintiff has no genuine  claim against  him.

The 2nd Defendant (2nd Respondent) filed a Defence dated 20th November 2014, and denied all the allegations made in the Plaint. It averred that the purported share certificate had been tampered with making it void and further  no proof of ownership  of the suit property  had been demonstrated by the Plaintiff(Appellant).  Further, that there is no claim and cause of action against it and urged the Court to dismiss the suit.

The matter proceeded by way ofviva voce evidence, wherein the Plaintiff(Appellant) called one  witness and the Defendants ( Respondents) called two  witnesses.

PLAINTIFF’S (APPELLANT’S) CASE

PW1, Solomon Ndegwa Kamau  testified that he bought Plot no. 176 from Kimani Kangethe,  through Share Certificate  dated1991 for Kshs. 15,000/=. That the seller was shareholder at the 2nd Defendant. He produced the agreement and translations as Exhibit 1. That after he  did the transfer, he got share certificate  No. 4666  through the 2nd Defendant. He produced  the share certificate as  Exhibit 2.  That he had a chance to peruse the 2nd Defendant’s register and his name was there. He produced an extract of the register  as Exhibit 3. Further on the original register  which he bought from  Kimani Karuga,  whose name is  on page 9, his certificate  No. 325was transferred  to 4666 Plot No. 176.  That he paid all dues to the  2nd Defendant.  He produced the 1991Share Certificate as  Exhibit 4. He further testified that the 1st Defendant (1st Respondent)  developed his land,  but he got a Court order to stop it.  That he was shown a  certificate at purchase, but he did not have a copy as the 2nd Defendant (2nd Respondent) went with the share certificate.

That he learnt that the 1st Defendant (1st Respondent) was  constructing on the suit property and he visited  the 2nd Defendant (2nd Respondent)  to inform them that someone was developing his land.  That he had not paid for the processing of the title and that there was no stamp on his documents  and the 2nd Defendant did not show him  the plot but the seller took him to the plot.

He further testified that he bought the plot from  Kimani Karanja  and the 2nd Defendant was in charge of the transfer . That he did not have any ballot nor an abstract. It was his testimony that during the sale, he was not shown ownership documents. That he never signed the sale agreement in the Kikuyu version. That the seller died 6 months ago and the property was vacant.

That at the purchase,  Kimani Karanja  had a ballot and took him to the plot together with a surveyor . That he got documents from  the 2nd Defendant’s  and the Chairman signed the documents.

DEFENCE (RESPONDENTS) CASE

DW1, Lawrence Kamau Hindu  the 1st Defendant testified that he was  the registered owner of   Block 10/176,  having bought the same from  Evans Mwangi in 2003. He relied on  his Replying Affidavit  dated 25th November 2014, in its entirety  together with the list of documents. That  Evans Kanyoki  Mwangi had share certificate  No. 390 Plot 176  and on register   Johnson Kamunyu Muhari  transferred share certificate 394. That Certificate No.394  for Peter Wakoma  Macharia  was transferred to share certificate  1538  as Jelinda  Wanjiku  Kamange. Further that 1074, is a transfer from 394. Further that 1017 is Njoroge Gicharu. He denied forging documents with the 2nd Defendant. That before the purchase, the 2nd Defendant (2nd Respondent) confirmed that Evans Mwangi was the lawful owner  and it gave him a share certificate.  That he did not know why  the register did not have Evans Kanyoko  Mwangi .He further testified that  Mboha Advocate register did not have a cover, stamp  and no title. That he had been in occupation till 2003, when he got a Court Order.

On re-examination, he testified that the share certificate he got was No. 394 and it came from 390. That he paid all fees. That certificate No. 1017, showed all details and he bought the land for value.

DW2  Anthony Kigamba Hato, adopted his witness statement  dated 24th October 2018. He testified that they have 2 registers for each farm and that they have  5 farms  and hence 10 registers. That on Page 9 No. 253  Kimani Karanja, was a member  as per the  register . That Share Certificate No. 325 transferred to4666. That the owner of4666   was in the register book 2,which was in the office. That a copy has Solomom Ndegwa as 4666. That  Plot 176 belonged to the 1st Defendant who bought it from Evans  Kanyoko  and they issued No. 1017,as per Certificate,  but as per the register 1017  is Gichagu Njoroge. Further  that No. 394,should belong to Kanyoko,  but on the register, it is  Peter Macharia, and they are not the same people. That 1538 belongs to  Jephuriga  Waruge  Kamunge transferred to 1307. That as per the register, the 1st Defendant should own 1017, which is not in Court . That there can never be  2 share certificates.

He further testified that the share Certificate has a problem  as it is not signed by the Secretary, it is not Farm No. 1 and it is altered  with a  pen. Further, that there is no ballot accompanying it. That he had declined to register the Certificate thrice as the date on it is illegible. That share Certificate byKanyoko is genuine as it is signed. Further that  they received fees and processed the transfer.  That the share certificate is proof of membership, but does not give ownership of plot. That it should accompany a ballot  to entitle someone to property.  That the certificate should have two signatures.

After the viva voce evidence, the parties  filed their written submissions and on 17th April 2019, the trial Court entered Judgment in favour of the Defendants(Respondents) plus costs and stated as follows;

“I have carefully considered the evidence on record , parties  submissions and authorities. And I make a finding  that the Plaintiff has failed to demonstrate  that the documents he seeks  to rely on  for ownership of the suit property  are lacking in credibility  due to the alterations and  failure to be  signed by the authorized  signatories. Against the 1st Defendant  full documentations. I make a  finding that  the 1st defendant has shown  good title  for lack of proof of fraud  by the Plaintiff. In the circumstances I dismiss the Plaintiff’s suit with costs to the Defendants.

The Appellant was aggrieved by the above determination of the Court and Decree thereon and he has sought to challenge the said Judgment through the Memorandum of Appeal filed on 17th May 2019. The Appellant sought for orders that;

a) The Appeal  be allowed.

b)  The Judgment in favour of the Respondents be set aside.

c)  The order made by the learned Magistrate  in the subordinate Court  as to Interest and costs be set aside.

d) The Appellant be awarded  the costs of this Appeal  and in the subordinate Court.

The grounds upon which the Appellant sought for the Appeal to be allowed are;

1.   That the learned Magistrate  erred in Law  and in fact in finding  the Appellant’s  case unmeritious  and dismissing the same with costs

2.   The Learned Magistrate  erred in finding  that the Appellant  failed to demonstrate  that the documents  he sought to rely  on for ownership  of the suit property  were lacking in credibility  due to the alteration and failure  to be signed  by the authorized signatories.

3.   The Learned Magistrate  erred  in Law  and in fact in  finding  from the Respondents  when there was clear indication  that the Appellant  was a shareholder  of the 2nd  Respondent  and that the 2nd Respondent’s register  had been altered  from which the 2nd  Respondent did not  tender any explanation  before the Court.

4.   The Learned Magistrate erred in Law  an in fact in finding  in favour of the  1st  Respondent  whereas no explanation  was given by the Respondents  as to why the 1st (1st Respondent’s)  name  was missing from the register  as well as that  of Evans Mwangi  who sold suit property to  1st Defendant.

5.   That the Learned Magistrate erred  in law by failing  to have due regard  and take into account  the various issues raised in the pleadings , witness statements  and evidence produced by the  Appellant.

6.   The Learned Magistrate  erred in fact by failing to take into account  and to consider  the evidence adduced  on  behalf of the Appellants.

7.   The Learned Magistrate  failed to appreciate  the submissions  of the Learned Counsel  for the Appellant  by finding in favour  of the Respondents herein  and more so failing  to  uphold evidence  that the  Appellant had bought  an already existing  land that had been balloted , described , demarcated and known and not a share.

8.   The Leaned  Magistrate erred  in Law and in Fact  by finding  that the Plaintiff had failed  to prove his claim against  the 2nd Defendant  and proceeded to award  costs  to both the 1st and 2nd Defendants  rather than the 2nd Defendant only.

9.   The Learned Magistrate erred in Law and in fact  by finding in favour  of the Respondents  despite finding  that the Respondents were evasive  with the truth as to the history  of the land.

10. The Learned Magistrate  erred in Law and in fact  by finding in favor  of the Respondents whereas  there was no evidence  that the 1st Defendant  had bought  the suit property  from one Evans  Mwangi as well  as the purchase  by Evans Mwangi  from Gicharu Njoroge  who as per the evidence adduced  was still  holding share certificate 1017.

11. The  Learned Magistrate erred in Law  and in fact in finding against  the Appellant whereas  there was no evidence  that the purported share  certificate No. 1017  held by one Gicharu  Kimani as per the 2nd Respondents  register and that  this share certificate should  be owned by the 1st Defendant.

12. The Learned Magistrate  erred in Law and in fact in dismissing  the Appellants suit despite there being contradiction evidence  on record by DW2 on ownership  of the suit property and particulars  of the  share certificate  as appearing  on the 2nd  Respondent’s register.

13. That in all  the circumstances of the case , the   Learned Magistrate  failed to do justice  before her based  on the pleadings  and the findings  of the Learned Magistrate  are insupportable in law  or on the basis of the evidence adduced.

The  Appeal was canvassed  by way of written submissions and the Apellant through  the Law Firm of Kiarie Joshua  &  Company Advocates  filed his written submissions on 6th July  2020, and submitted that  from the evidence adduced, the trial Court  failed to Consider his evidence  and misapplied it against the law. It was submitted that the root of the 1st Respondent’s title was questionable, yet the Court ruled he was the bonafide owner. That the 1st Respondent could not  have  bought land from a non existent person. That the trial Court  placed the burden  on the Appellant  to prove  his documents were lacking in credibility . That the Appellant’s name as well  as the person he bought the property from were in the register.

It was further submitted that DW2 was in a position to confirm who owned the share certificate,  and who was the legal proprietor, yet he did not adduce any documents to confirm his allegations.

The 1st Respondent through the Law Firm of  Waithira Mwangi & Co Advocates  filed his written submissions   dated 4th June 2020, and submitted  the Appellant did not offer any credible evidence in the lower Court  to necessitate a finding  in his favour. He relied on the case of Gabriel S.Chepkwony …Vs…. Gidion  Nzioki  Mbili & Another (2018)eKLR.

That the Appellant’s evidence has negated averments . That the  documentary evidence  he tendered and relied  on offered little support to his claim  as the authenticity of the documents were doubted and the alleged source disowned them . The Court was urged to  dismiss the Appeal.

The 2nd Respondent  through the Law Firm of Mwihia & Mutai  Advocates, filed its written submissions  on 2nd September 2020, and submitted that  the Appellant has not taken a Decree,  hence the Appeal is fatally defective.  That the Appellant admitted  that he had no ballot  and no abstract was shown of loss.  That the sale agreement was not signed by the Appellant. That share certificate is mere proof of ownership and  a ballot paper  is the sole  genuine genesis  proof of ownership . The court was urged to dismiss the Appeal.

The Court has carefully read and considered the written submissions, the Memorandum of Appeal and the  relevant provisions of law and renders itself as follows;

The Court has also carefully considered the findings of the trial court, the rival written submissions by the Counsels and finds as follows;-

In making a determination of this Appeal, the Court recognizes that it neither saw nor heard the witnesses, and must therefore give allowance to that.

As this is a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78of theCivil Procedure Act. See the case of Selle ….Vs… Associated Motor Boat Co. [1968] EA 123where the Court held that;

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).

Further as the Court determines this Appeal, it takes into account that it will only interfere with the discretion of the trial Court where it is shown that the said discretion was exercised contrary to the law or that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. See the case of  Mbogo vs Shah (1968) EA at Page 93 where the Court held that:-

“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted on because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

In its submissions, the  2nd Respondent has submitted that the instant Appeal is fatally defective as the Appellant did not take out a Decree. It is not in doubt that the Appellant has attached a Decree to the Record of Appeal.  However, the Court finds that a Decree is just but a manifestation of the pronunciation of the Judgment. It is the Court’s further holding that cases that tend to lean against allowing dismissal were  decided before the enactment of Sections 1A and 1B of the Civil Procedure Act and Article 159 (2) (d) of the Constitution of Kenya, 2010, which enactments require Courts to administer justice “without undue regard to procedural technicalities,”.  See the case of Monicah Nyawira Wahome …Vs… Veronica Wambui [2016] eKLR where the Court held that;

Therefore, on the first issue of whether the application as presented without an extract order or decree is fatally defective, the case of Stephen Boro Gitiha Vs Family Finance Building Society & 3 Others Civil Appeal Nairobi 263/2009 is relevant. In that case, the Court held that:-

“The overriding objective overshadows all technicalities, precedents, rules and actions which are in conflict with and whatever is in conflicts with it must give way. A new dawn has broken forth and we are challenged to reshape the legal landscape to satisfy the needs of our time. The Court must warn the litigants and counsel that the Courts are now on the driving seat of justice and the Courts have a new call to use the overriding objective to remove all the cobwebs hitherto experimented in the civil process and to weed out as far as is practicable the scourge of the civil process starting with unacceptable levels of delay and cost in order to achieve resolution of disputes in a just, fair and expeditious manner. If the often talked of backlog of cases is littered with similar matters, the challenge to the Courts is to use the new broom”of overriding objective to bring cases to finality, by declining to hear unnecessary interlocutory application and instead to adjudicate on the principle issues in a full hearing if possible.

In this case, the plaintiff’s counsel did annex copy of the judgment which is sought to be reviewed. The extraction of a decree or order sought to be reviewed no doubt stems from the judgment and is a purely procedural omission which should not be used to impede access to justice. Furthermore, Section 99 of the Civil Procedure Act gives latitude to this Court to amend judgments, decree or orders. It statesClerical or arithmetical mistakes in judgments, decree or orders or errors rising therein from any accidental slip or omission, may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”

Therefore, failure to extract decree in this case is not fatal to an application for review. I am not persuaded by the cases cited by the Defendant, which cases were decided before the enactment of Sections 1A and 1B of the Civil Procedure Act and Article 159 (2) (d) of the Constitution of Kenya, 2010, which enactments require the Courts to administer justice “without undue regard to procedural technicalities,” and especially, where in the omission like the one in the instant case is not demonstrated to occasion any prejudice or injustice to the defendant,  and which prejudice cannot be adequately compensated by an award of costs.”

With the above mind, the Court finds that the Appeal before this Court is properly before it, and therefore will overlook the procedural technicalities.

The Court will then decide whether the Appeal is merited. The Appellant has laid various grounds of appeal amongst them faulting the trial Court  for failing to take into account various issues , failing to find that the Appellant was a shareholder  and making a finding that the Appellant has failed to prove his case.

In his statement of claim, the Appellant had laid claim to the suit property. It was his contention that he had bought the suit property from one  Kimani Kangethe, and they  entered into  a Sale Agreement. He contended that the 1st Respondent entered into the suit property without his permission and he was thus seeking for eviction of the 1st Respondent from the suit property.

On the other hand, the  1st Respondent  denied the claims that he was wrongfully on the suit property and testified that he bought the suit property  from Evans Kanyoki and thus he acquired a good title. His contention was further supported by the 2nd Respondent, who averred that according to their register, the 1st Respondent was the owner of the suit property.The 2nd Respondent through DW2 also testified and denied that all the documentations held by the Appellant emanated from it. It was therefore the Respondents’ contention that the documents held by the Appellant were a forgery.

The Court made its determination and held that the Appellant had failed to prove his case and  allowed the suit in favour of the 1st Respondent with costs.

The Appellant being aggrieved has appealed to this Court. The Court having carefully evaluated   the evidence  in the subordinate Court finds that  it is not in doubt that the 1st Respondent holds a title to the suit property. The Appellant called into question the  title held by the 1st Respondent and it then became imperative for the  1st Respondent to prove the root of his title. See the case of Munyu Maina…Vs.. Hiram Gathiha Maina [2013] eKLR, held as follows:

“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”

To be able therefore to determine whether this Appeal is merited, it is the Court’s considered view that it will evaluate who between the Appellant and the  1st Respondent had satisfactorily proved their root of title.

The  Appellant also was to prove the root of his title. The   trial Court in its Judgment held that the Appellant had failed to prove his case based on the fact that the documents he sought   torely on  for ownership of the suit property  are lacking in credibility  due to the alterations and  failure to be  signed by the authorized  signatories.  The Appellant herein has not  satisfied  the Court  why the documents that he produced in Court had either  not been signed or had alterations that could not be explained. The Court has gone through the Appellant’s documents produced in evidence and notes that   he had  produced a Share Certificate in his name.  However, he has failed to produce a share certificate in the name of the person  who sold the suit property to him. It is not in doubt that two persons cannot have the same number of  Share Certificate as the same are issued on different times and upon transfer,  a new share Certificate  is issued to the vendor, which the Appellant has failed to prove.

Further the  Court  also notes that   the said Share Certificate has  alterations that have not been countersigned and  the  same has not been properly executed.  Based on the documentations produced in evidence and the evidence from DW2,  that  there are no records from their offices that show that the  Appellant was  the owner of the suit property, the Court finds and holds that the Appellant did not  show the root of his title

The Appellant being the Plaintiff had the onus of proving his case on the required standard of balance of probability. The Plaintiff sought to rely on documents that had alterations  and not properly executed, without any justifiable  reason, and therefore, the appellant failed to prove his case on the required standard at the trial court.

The  1st Respondent testified that he bought the suit property from oneEvans  Kanyoki. It was the evidence of DW2 who represented the  2nd Respondent that  for one to be a shareholder, the person must have a share certificate and a ballot as a share  certificate is only indicative  of membership and not ownership of land. Further that the names of the shareholders are entered into the register. DW1, the  1st Respondent herein produced in evidence a share certificate that he had gotten from the saidEvans Kanyoki.He further produced a share Certificate in his name evidencing that  he  is the owner ofPlot 176,and further produced  receipts for payment. Further DW2  who was the Chairman of the  2nd Respondent Company which was the initial owner of the suit property also testified  that as per their records, the 1st Respondent was the owner of the  suit property and that his name is in the register. The Court is thus satisfied that the 1st Respondent was able to show how he acquired proprietorship of the suit property and therefore has shown the root of his title. As the 1st Respondent was able to show the root of his title, the Court is thus  satisfied that he holds a valid title and there is no basis upon which to impugn his title since it was procedurally acquired.

Having now carefully re-evaluatedand re-assessed the available evidence before the trial Court and the Memorandum of Appeal together with the written submissions, the Court finds that the trial Magistrate did not err and arrived at a proper determination.

The upshot of the foregoing is that the Appellant’s Appeal herein isnot  merited and consequently the said Appeal is dismissed with costs to the  Respondents  and the Judgment and Decree of the trial Court is hereby upheld.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 4TH DAY OF JUNE 2021.

L. GACHERU

JUDGE

4/6/2021

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgmenthas been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

No appearance for the Appellant

No appearance for the 1st Respondent

Mr. Mboha for the 2nd Respondent

L. GACHERU

JUDGE

4/6/2021