Stephen Njau Njoroge, Richard Gichini Njoroge, James Njoroge Njau, Jane Nyambura Njau, Grace Wambui Ragacha, Muchene Njoroge, Cecilia Nduruka Njau & Fred Njuku Njau v Lillian Wairimu Ngatho & Elizabeth Murungari Njoroge [2021] KEELC 1770 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO.  274 OF 2017

(FORMERLY NAIROBI ELC CASE NO.722 OF 2014 (O.S)

AS CONSOLIDATED WITH HCCC NO. 972 OF 2006(O.S)

(FORMERLY  ELC HCCC NO. 317 OF 2006(O.S)

IN THE MATTER OF KIAMBAA/WAGUTHU/385

STEPHEN  NJAU NJOROGE......................................1ST PLAINTIFF

RICHARD   GICHINI NJOROGE..............................2ND PLAINTIFF

JAMES NJOROGE  NJAU...........................................3RD PLAINTIFF

JANE NYAMBURA  NJAU..........................................4TH PLAINTIFF

GRACE WAMBUI  RAGACHA..................................5TH PLAINTIFF

MUCHENE NJOROGE...............................................6TH PLAINTIFF

CECILIA NDURUKA NJAU......................................7TH PLAINTIFF

FRED NJUKU NJAU...................................................8TH PLAINTIFF

VERSUS

LILLIAN WAIRIMU NGATHO..............................1ST DEFENDANT

ELIZABETH MURUNGARI NJOROGE..............2ND DEFENDANT

JUDGEMENT

The instant  suit is a consolidation of two suits ELC CASE NO.  274 OF 2017(FORMERLY  ELC CASE NO.722 OF 2014 (O.S),filed by the  Plaintiffs against the Defendants  andHCCC NO. 972 OF 2006(O.S), FORMERLY  ELC HCCC NO. 317  OF 2006(O.S)filed by the Defendants against the  3rd and 7th Plaintiffs.

On 16th December 2020, the Court dismissed ELC CASE NO.  274 OF 2017(FORMERLY ELC CASE NO.722 OF 2014 (O.S) thePlaintiffs suit  for non-attendance  with costs to the Defendants and proceeded with the Defendant’s  Counter Claim. This Court will therefore deal with the said Counter Claim.

By an Originating Summons dated 13th September 2006,the Defendants  herein who were the Plaintiffs in  Civil Suit No. 972 of 2006sought for determination of the following matters;

1. That parcel  L.R No.  Kiambaa/ Waguthu/385, is the registered  land of Wanjiku  Njau ( Deceased)  who until  her demise on  9th April 1998, was in possession  of the said parcel of land  and the Plaintiffs  being the appointed  legal administrators  under the grant of letters  of Administration  intestate dated  2nd November  2000,have  the exclusive rights  to administer  the suit premises herein in accordance  with the succession  law. Further,  that the Defendants have no right  legal or otherwise  to occupy , interfere  or in any  manner whatsoever  prevent the  Plaintiffs  from  entering  into the said suit premises herein  in dispute  and administering  as such  as is lawfully  and or legally required under  the Succession Act.

2. That if  this Court  should issue permanent  restraining orders  against the  Defendants their  agents  and or  servants from  interfering , constructing  and or cultivating  within parcel no. Kiambaa/ Waguthu/385, the suit premises herein and further  should the Court  order  that the Plaintiffs be allowed  to peacefully administer  the suit premises herein and further  should the Court order  that the Plaintiffs  be allowed to peacefully  administer the suit premises as per  the grant of letters  of Administration issued to them  by the High Court  of Kenya in Nairobi Succession  Cause No.  2616 of 1999.

3. That the Defendants by an order of Court be made  to account  and pay  to the estate of the Wanjiku  Njau the profits    they have continued  to illegally  retain to date  from 9th  April 1998  estimated  at kshs.20,000/= per day  for 9 years  ( Kshs.180,000/=)  when wanjiku  Njau  the registered owner of the suit  premises died.

4. That the costs of this Application  be provided for

In her Supporting Affidavit Elizabeth  Murungari  Njoroge,  averred that they are the duly  appointed Administrators  of the estate of  Wanjiku Njau,  who died domiciled in Kenya  on  9th April 1998, who was the registered owner of the suit property. That  the suit property is unoccupied and  the parties  herein were parties  in HCC No. 2616 of 1999, consolidated with HCCC No. 1074 of 1998, which was determined in their favour on 2nd November 2000, wherein they were  appointed the Legal Administrators.

That   it is impossible for them to administer the Deceased property in particular the suit property,  since the Defendants  herein who occupy the large  parcel for land surrounding  the  suit property have threatened  to resort to violence if they  attempt to administer the said Estate. That  the pendency of  HCC No. 2616  of 1999,  and the ensuing Appeal  to the Court of Appeal,  had prevented  them from taking any remedial proceedings,  but as there is no existing suit  between the parties, they seek  the  Courts order  for permanent Injunction . Further, that the Defendants have been unlawfully  making  use of the suit property  by leasing it out  and illegally retaining the profits  realized and therefore  preventing the administrators of the Deceased estate from administering it.

The Originating Summons was   opposed and  Cecilia Nduruka Njau, who was the 1st Defendant  swore a Replying Affidavit  on 16th October 2006, and averred that   the   Originating Summons and the suit are bad in law as the same  offend the provisions  of Order  VII of the Civil Procedure Rules, which  provisions are   mandatory . That the issue  of rights over the suit property  cannot be determined  summarily as  proposed by the Applicants, as the Defendants  amongst other   claim right  over the suit property  by way of Prescription  and have moved the Court by way of Originating Summons. That there is no proof before this Court  of what irreparable  injuries that  the Applicants  stand to suffer  if the orders are not granted.

Further, that the Defendants having been on the suit property for over the prescription period, they stand to suffer more on a balance of convenience, if the injunctive orders are confirmed. Further that the Plaintiffs rights over the suit property are secondary, to any of the Defendants and cannot supersede the Defendants rights over the same property. That they have peacefully cultivated the land  for over a period of 12 years,  and the Plaintiffs cannot  put truth to the allegations of violence over them, as they own the land. That  the Plaintiffs have been  guilty of  great  delays, which delays have not been properly  explained  and cannot  be granted.

The said Cecilia Nduruka Njau filed a further Replying Affidavit, sworn on  28th September 2007,  and averred that the Plaintiffs moved  this court only after  the Defendants amongst  other persons sued the Plaintiffs. That they amongst other family members have been in actual and effective occupation of the suit property, and their use of the suit property have never been unlawful.

Elizabeth  Murungari Njoroge, swore a Supplementary Affidavit  on 3rd November 2008,  and averred that the   Defendants have not had  exclusive and or uninterrupted occupation,  as they only invaded the  suit property upon the demise of the   Deceased. That they had attempted to misrepresent themselves as the beneficiaries, only for the Court to dismiss their Grant of Probate.  That the Defendants illegally disinherited the estate  of    Wanjiku  Njau and they should be  compelled to  compensate the said Estate,  and their suit should be struck out.

The suit proceeded by way of viva voce evidence wherein the  Defendants  called twowitnesses  and closed their case. Despite being aware of the  Hearing of this matter, the Plaintiffs failed to attend Court and the hearing  of the matter proceeded in their absence.

DEFENDANT’S COUNTER CLAIM

DW1 Peter Wakahura  Kanyungo  testified  that he prepared  an assessment report  which he prepared in January 2007,  in relation to  Kiambaa/ Waguthu/385,  and the instructions  were to inspect  the property and  advice the profit  to be acquired for the  preceding 9 years.That he prepared a report and found that  the land is 2. 3 acres and an acre of land would  secure Kshs. 25,000/=, and for the 2 acres it was  Kshs. 57,500/=gross revenue and for the 9 years, the total was  Kshs.517, 500/=. He produced the Valuation Report   as Exhibit 1.

DW2 Elizabeth Murungari Njoroge  testified that she is the administrator  of Estate of Wanjiku Njau,  who was the owner of the suit property, She adopted her witness statement   dated 13th September 2006,  and further adopted her Affidavit  filed on  26th March  2008,  as her evidence in Court.  She further adopted all her affidavits and produced her list of documents as Exhibit  No. 2 and urged the Court to allow her claim.

After close of viva voce evidence, the  Defendants filed written submissions which the Court has carefully read and considered and finds that the issue for determination is whether the Defendants are entitled to the orders sought in their  Counter Claim.

The Defendants have sought for the determination of various   questions amongst them whether Wanjiku  Njau (Deceased)   is the registered owner of the suit land and them being the administrators ofher Estate,  whether they have exclusive rights  to administer the said estate and whether  the   3rd and 7th Plaintiffs have  legal rights to occupy and interfere with the suit property. They also sought for the accrued profits that the 3rd and 7th Plaintiffs have continue to illegally detain for 9 years.

It is not in doubt that the  Defendants Counter Claim was  contested by the said Plaintiffs herein. However, despite filing  Affidavits in opposition  to the said  Originating Summons, the said Plaintiffs did not adduce any evidence in support of their claim and therefore  the evidence by the Defendants is unchallenged.  The Claims made by  the Plaintiffs are unsubstantiated and therefore  the claims made by the Plaintiffs remain mere allegations. See the case of North End Trading Company Limited (Carrying on the Business under the registered name of Kenya Refuse Handlers Limited ….Vs… City Council of Nairobi [2019] eKLR where the Court held that ;

21. It is my view, that a party to a case having filed his pleadings should call evidence where the matter is considered to proceed by way of evidence.  It is trite law that where a party fails to call evidence in support of its case, the party’s pleading are not to be taken as evidence, but the same remain mere statements of fact which are of no probative value since the same remain unsubstantiated pleading which have not been subjected to the required test of cross-examination.  A defence in which no evidence is adduced to support it cannot be used to challenge the plaintiff’s case.  The failure to call evidence means that the evidence adduced by the plaintiff remain uncontroverted and therefore unchallenged.

However, uncontroverted evidence is not automatic evidence as the  Defendants still have an obligation to prove their case.

The Defendants sought for a determination of the prayers that  the suit property is the  registered land of Wanjiku Njauand that they  have exclusive rights to administer it. The Defendants produced in evidence  Letters of  Administration dated 2nd November 2000,which indicated that the Defendants are the Administrators of the Estate of Wanjiku Njau. Further, the Defendants did produce in evidence various  Certificates of official search, one being  a  search dated 11th March 2002,and another one was  dated 18th April 2006, and a final one is dated 23rd January 2007, which confirmed that the Deceased is the registered owner of the suit  property.

In the absence of any evidence to rebut the said  evidence adduced, the Court has no  option but to finds that the Defendants have proved that the said  suit  property belong toWanjiku Njau,and  the Defendant have exclusive rights to administer it.  Therefore, the  Court  finds and holds that the Defendants are entitled to the said  orders and the Court would not  hesitate to grant the said orders as they are merited.

The Defendants have also sought for the profits that  the Plaintiffs continued to illegally detain for the period that they have been in occupation. The 3rd & 7th Plaintiffs did acknowledge that they were in possession of the suit property, and this is further buttressed  by the fact that they sought to be registered  as owners by way of Adverse Possession. It is thus clear that the   Defendants were  prevented from realizing the profits and the use of the suit property. Though the Defendants pleaded for a profit of Kshs.20,000/= per day,  DW1 who prepared the report did testify that  the suit property would have realized an income of Kshs. 57,500/=  per year and that thegross revenue for the 9 years  total was  Kshs.517, 500/=.

Parties are bound by their pleadings, and the Defendants did plead for the profits for the years, that the Plaintiffs had occupied the Land.  Evidence has been adduced that  the property would have fetched Kshs. 517, 500/= for the said 9 years and given  that no evidence has been brought forth to challenge nor rebut the said evidence, the Court finds and holds that the said prayer is  merited.

The  Defendants had also sought for Permanent Injunction against the  3rd &  7th  Plaintiffs. It is not in doubt that the Defendants are the Administrators of the estate of the registered owner and thus they have an obligation to protect the rights and interest of the said Estate. The deceased Wanjiku Njau, being the registered owner, then her estate  has the  absolute and indefeasible rights as provided for by  the provisions of Section 26 of the Land Registration Act. Being the absolute and indefeasible owners, the said Estate should be  allowed to enjoy all the rights and privileges that appertains to  the said property.  In order for such enjoyment to happen, it would only be fair that a permanent injunction  granted against the Plaintiffs.

This Court finds and holds that the Defendants have proved their case on the required standard of balance of probabilities  and are consequently  entitled to the orders sought.

Having carefully read and considered the pleadings by the parties, the Originating Summons, the available Affidavits, the evidence adduced, the  written submissions by the Defendants and the relevant  provisions of law, the Court finds and holds that the Originating Summons dated 13th September  2006,is merited and the  prayers sought in the said Originating Summons are allowed with costs to the Defendants.

Further, the Court finds that the amount to be paid by the 3rd and 7th Plaintiffs to the estate ofWanjiku Njau (Deceased) for profits that they have continued to illegally retain is Kshs. 517,500/=for the9 years as sought by the Defendants.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 30TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Kuiyaki