Wekesa Kinisu & Richard Kinusu Totolala v Fred Sinja [2014] KEHC 4954 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL CASE  NO.108 OF 2012

WEKESA KINISU .…..........................................................1ST PLAINTIFF

RICHARD KINUSU TOTOLALA ….................................... 2ND PLAINTIFF

V E R S U S

FRED SINJA.................................................................................DEFENDANT

JUDGMENT

1.  The two Plaintiffs are the sons of Kinisu Totolela – deceased. They have filed this suit as administrators of the estate of their father  for   their benefit and the benefit of their brothers.  Their   claim ascontained in the plaint are prayers for an order of permanent injunction restraining the Defendant, his agents and  anybody claiming  under his command   from developing the suit plot  until  determination of this suit and eviction order against the same be issued by this court. They prayed also  for costs of the suit and any other relief the court deems just and    fit to grant.

2.    The suit is defended and the Defendant filed his statement of defence on 7th May 2012 through his previous counsels M. Kiveu & Co. Advocates.  In the seven paragraph statement of defence, he denied the Plaintiffs claim.  At paragraph 7, he pleaded that he  would raise a preliminary  objection to have this suit dismissed   for being incompetent and an abuse of the court process.  The  matter proceeded to full hearing. The Plaintiffs called four  witnesses to support their case. The  Defendant also called 3       witnesses to fortify his case. The summary of the Plaintiffs case is    as given hereunder.  The 1st Plaintiff Wekesa Kinisu testified      as PW1.  It is his evidence that his father died in 1999 leaving  behind 18 daughters and 10 sons. Two of the sons have died while the daughters are all married.

3.    The deceased Totolela Kinisu owned a plot no. 16 located at Lukusi market jointly  with Abraham  Kanyanya-deceased.  The   plot  was partly  developed.  Each of   the sons of Totolela has  settled in various areas and only their mother Rusalia remained to take care of the home. PW1 continued that he heard on 19th January 2009  that the Defendant was building on this plot yet he was neither their brother nor son to Abraham – deceased.

4.     They took the complaint to the District Officer to stop him from  building. His further evidence is that the Defendant had begun    constructing a toilet. He produced the letter from the District  Officer as pex. 1.  The Defendant stopped temporarily but continued again on 21. 4.2010.  They  complained a second time upon which the District Officer summoned them and asked that   they sit at home and agree. He produced the District Officer’s  second letter as Pex. 2.  He asked the court to stop him from building on the land.

5.    On cross examination, he said this is a commercial plot which attracts rates from the county council. He was unaware of  demand  notices for rates from Bungoma municipal council (when shown  MFI.D1 – 3).   He continued that Edward Kinisu  was appointed by the family to take care of this plot but instead sold part of it. He    concluded that Edward needed to have involved all the family members in the sale.  He admitted the Defendant has developed on the suit plot a 6 roomed building which is occupied.

6.     The 2nd Plaintiff testified as PW2.  He lives in Naitiri and is a farmer.  He also heard someone was building on their plot. He   accompanied the  1st plaintiff to the District Officer's office.  He corroborated PW1's evidence and asked this court to issue an order of permanent injunction against the Defendant. In cross      examination he said he saw the Defendant building on the  suit plot. That Edward should    have involved all of them before selling the plot.  Before today (20. 3.2013) he had not obtained   injunctive orders to stop the Defendant from building. He confirmed the Defendant has now developed the land.

7.       PW3 Richard Sifuma Kanyanya lives in Lukusi location.  He is a  cousin to the Plaintiffs. He is the son of Abraham Kanyanya- deceased who jointly owned this plot with the Plaintiffs’ father.  In 2009, he found someone digging a pit latrine on this plot.   He  teamed up with the Plaintiffs in presenting a complaint to the    District Officer.  In spite of receipt of the District Officer's letter, the Defendant      did not stop hence they filed this suit.

8.     When cross-examined by Mrs  Onyando, he said they went to the District Officer on 19. 1.09 who issued a letter.  He admitted the letter was not a court order.  He denied giving the Defendantpermission to utilize the plot no. 16. In the letter, he said if Kinisu's children have sold a portion of the plot then the   remaining portion is his.  He was unaware of the demand  notices for rates shown to him.

9.       PW4 is the mother to the Plaintiff.  She told court that someone  has built on her plot 16 at Lukusi market.  She did not know   who sold the plot to the Defendant and concluded by saying she wants the plot back so she can share it with her children. In   cross-examination, she claims the plot by virtue that it  belonged to her late husband.The plot was partly developed. She stated that her husband left the management of the plot to Edward Kinisu.She also did not  know thecounty council wanted to   repossess the plot.  This marked the close of the Plaintiffs case.

10.    The Defendant's case proceeded on 6th November 2013.  The Defendant testified as the first witness. He told court that he is a farmer and businessman.  He comes from Lukusi location.   He bought half of the plot on 17th June 2008 for a consideration of  Kshs. Seventy thousand (Kshs. 70,000/=) only from Edward Wekesa Kinisu.  The agreement was witnessed by the area Chief  amongst others.  He produced the agreement as Dex. 4.

11.   He bought the plot because Edward approached him that their plot  would be sold for non- payment of municipal rates. He  produced       demand note for Kshs. 8,000/= dated 5th March 2004   as Dex. 1 and demand note for Kshs. 18,135/= dated 26th  November 2007 as Dex. 2. He also produce final reminder       notice dated 31st May 2008 demanding Kshs. 22,714/= as Dex. 3. He said he bought the plot in good faith.

12.      He began developing the plot in 2009 and no one stopped him  until    when he was roofing and produced the District   Officer'sletter as Dex. 5.   Before the District Officer they presented their    case upon which the District Officer advised them to go home and agree.  The District Officer asked him to stop building  which he did.   No agreement was reached at home as proposed  by the D.O.  Later before the chief, he said PW3 gave him the green light to continue building and therefore he completed the house.  He urged the

court to dismiss this suit as if the plaintiffs’ prayers are granted, he will be denied his rights.

13.      He was cross examined by the 1st Plaintiff. He said he had known Edward Kinisu for a long time.  He knew that Kinisu-deceased  and Abraham-deceased in whose names the demand notices issued were both deceased.  He also knows the widow (PW4) but  did not  inform her of the sale. He said he was never invited to the  Plaintiff's family meeting after they left the D.O’s office.  He paid    Edward Kshs. 70,000/= and from this Edward was to pay the council Kshs. 22,000/=.

14.      On cross examination by the 2nd Plaintiff, he denied being served  with any letter by the widow (PW4). He said he lived on the suit plot as tenant for 3 months before Edward approached him to buy     part of it.  In re-examination, he    said he bought the plot to save it   from being auctioned.

15.      EDWARD WEKESA KINISU testified as DW2. He is a retired  teacher and eldest son of Kinisu-deceased. The Defendant was hisneighbour and  tenant on suit plot no. 16 from 1972 –2008.   That their deceased fathers were not paying rates which  therefore accumulated.  As a result of this accumulation, the  Bungoma Municipal Council issued the first notice dated 31. 5.08 to repossess the plot. On receipt of the notice he called his brothers but only the 2nd Plaintiff came.  They agreed with the 2nd Plaintiff to each search for a buyer and therefore he  came across     the Defendant who was willing to buy the plot.

16.      The Defendant paid him before the Chief, Lukusi location.  He thereafter paid    the debt owed to the council.  He said he notified  PW4 each  time the demand notice came. That had he not sold part of the plot, the whole  plot would have been auctioned.  When they sat down as a family after the District Officer's letter,  no one opposed the Defendant using the land.  He personally has no objection to         the Defendant using the land.

17.      Under cross-examination by the 1st Plaintiff he said their father  had 4 wives of whom 2 are alive.  He stood firm that during the  family no  one opposed Defendant’s use of the plot.  The half he sold comprised  half share of both Kinisu-deceased and   Kanyanya-deceased.  He collected initial rent from the premises  but later it was their  mother who received rents.

18.      The Defendant's last witness Samuel Nayombe Chenonoi is the Chief of Lukusi location.  He witnessed the agreement betweenthe Defendant and Edward (Dex. 4).  He was also shown the demand  notices from the county council.  He was told by Edward    that he was selling part of the plot to secure the developed part from being auctioned. Later Edward and his brothers went to his office.  PW3 was complaining he had not got a share from the sold portion. He advised them to go and reconcile at home.

19.      In cross examination, he admitted the sons of Kinisu –deceased were not witnesses in the agreement. He also did not see any  letter where the family agreed on mode of sharing.  He did not know how many wives Richard had.  He denied stealing the   land.   In re-examination he said when the land was sold, succession cause had not been filed. The Defendant closed his   case.

20.      Both parties then filed their written submissions.  The Defendant  summarized the evidence and cited case law of Stanley Kirui vs. Westlands Pride Ltd [2013] eKLRto fortify his submissions. I have read the submission as filed and need not reproduce them in  this judgment.

21.   Having considered the evidence adduced, the pleadings and thesubmissions tendered, the issues I find to be arising for  determination are;

(a).      Was the sale contract entered between Edward Wekesa Kinisu and Fred Sinja (Defendant) valid?

(b).      If answer (a) is yes, are the Plaintiffs entitled to orders they  are  seeking as per their plaint?

(c).      If the answer to (a) is negative what remedy would lie in  favour of both the Plaintiffs and the Defendant?

(d).      Who should bear the costs of this suit?

22.      The Defendant's case is that he bought half of the suit plot from  Edward Kinisu and paid the whole sum of Kshs. Seventy  thousandonly (Kshs. 70,000/=) that was agreed.  He produced a  sale agreement  as Dex. 4. The agreement is dated 17th June 2008 selling undeveloped part of plot 16 in Lukusi market and  measuring 25ft by 100ft.  A deposit of Kenya shillings sixteen  thousand (16000/) only was paid on execution. The remaining   balance was paid by installments. On the face of Dex. 4, when the deposit was made, the people present were the parties to the  agreement (Edward and Fred) and  Titus Mwinani as secretary.

23.      When 2nd installment of Kenya shillings Twenty five thousand (25000/) only was made, the witness was Wanyonyi T.   Sekapchanga. On 4th and last installment, there were three  witnesses i.e. Wanyonyi T.  Sekapchanga, Rose Siundu and     Stephen  Sinja.  Below the names of the witnesses,  the Chief  (DW3) wrote on 28. 8.2008 the following words, “The plot sold to offload rent accumulation.  Company to   transfer to     buyer.”

24.      The agreement as drawn on the face of it meets the requirements of section 3 (3) of the Law of Contract  Act cap 23 of the Laws of  Kenya which provides that a sale of land agreement must be in   writing, signed by both parties and the parties signatures witnessed.  The only limitation that faces this agreement is whether Edward had capacity to   sell the land. It is not in dispute that suit plot no. 16 was jointly owned by Kinisu Totolela – deceased and Abraham Kanyanya – deceased.  When the agreement  was drawn, both owners were dead.

25.      From the evidence adduced, Edward was given authority to    manage the property by virtue of being the eldest son in the Kinisu household.  It did not come out that that authority  extended to the share held by Abraham's household.  Edward  (DW2) told court that the half share he sold included Abraham's  share in the plot.  He did not disclose who gave him authority  to sell Abraham’s share. Secondly, he   had not taken letters of administration of his father's estate nor that of the estate of Abraham.  He did not  therefore have  capacity to transact any  business on the property of the deceased to purport to pass title  to a third party.  For this reason, I find the agreement void for  lack of capacity of the seller to pass title to the Defendant. The reason given for selling the plot cannot validate what is void ab  initio.

26.      This brings me to the second question whether the Plaintiffs are entitled to the orders sought.  DW2 said he sold the half of the   plot that was undeveloped to secure the developed part.  He also relied on the demand notices issued by Bungoma municipalcouncil (as it was then).  The 1st demand note was issued on5th March 2004 and produced as Dex. 1 while Dex. 2 was issued on 26th November 2007  some three years later.  The final reminder,  Dex. 3 issued on 31st May 2008 demanded Kshs. 14,214/= and  auctioneer’s charges of Kshs. 8500/=.

27.      The notice said the property would be sold if this amount (Kshs 22714/-) was not paid within 7  days. The evidence show DW2 got the Defendant to purchase the plot two weeks later (17. 6.2008). It becomes difficult to believe the seller that the sale was urgent that he could not involve his brothers as the variation  of the dates on notices does not reflect any visible threat. Further,  DW2 did not produce a receipt to show that he actually paid rates    due within that month or anytime to corroborate the averment   that the sale was  to save the plot from being auctioned.  Instead   what is shown that the sale was to secure the plot is DW3’scomment on the agreement (Dex.4)“The plot sold to offload rent accumulation?  Company to transfer to buyer”madeon 28th August 2008.  This comment was added two months after  the agreement was entered into and purchase price paid in full. In my view, the comment was an afterthought and not the initial intention of the seller (DW2). The comment by itself cannot be  taken as evidence of payment of rates if any to the municipality.

28.      DW2's further evidence is that he paid Kshs. 22,000/= as rates plus charges of auctioneer of Kshs. 8000/= (which then gives a  total of Kshs 30000/).  However Dex. 3 shows the rates outstanding was Kshs. 14,214/= plus charges of 8,500/= (giving total demanded as Kshs.  22,714/=). The witnessseems to be dishonest even when his own document shows    otherwise.  He also did not say what he did with the balance  of approximately Kshs. 47,000/=.  He did not give his siblings   or  the widow yet he was  entrusted to manage the property on  behalf of the family.  He abused  that trust. He also did not say  what happened to the rent monies he collected during the time he  was receiving the rents. With this non accountable behavior, he should be personally liable to refund all monies he received from the defendant.

29.    The Plaintiffs did not know about the sale until the Defendant  began construction of a pit latrine on the suit portion. Other than DW2   saying he informed the plaintiffs about the pending auction  but they did not come.  He did not tell the court if he consulted   them after sorting out the  “emergency”.  The Defendant did not  also endevour to process the title documents into his name before commencing development on the plot.  Although DW1 said he had only been a tenant for three (3) months beforebuying the plot, DW2 said he was a neighbour and tenant from 1972 – 2008. Whichever is the truth, the defendant had knowledge that the owners of  the plot were dead. He therefore ought to have acted    with diligence and involved  more than  one family member before paying themoney. He failed to do so, especially when he was       paying the subsequent installments.

30. On the question of what remedy if any is available to the Defendant, I find none.  It is not denied the Defendant has put up   a 5 door/roomed building on this plot.  The Defendant filed a  defence to the plaintiffs claim but did not file a counter-claim to present any of his claims for the court’s consideration. In the defence, he asked the court to dismiss the Plaintiffs suit.  The  Defendant was  represented by an advocate from the beginning of this suit.  It beats logic how he could then fail to make a counter-claim to plead either for specific performance or refund.  In the absence of the counter claim, this court has limited choice on any remedy to offer to the Defendant. The law as it is provides  that parties are bound by their pleadings.

31.      To aggravate the Defendant's misfortune, the Plaintiffs led  evidence that immediately the Defendant began constructing a pit latrine, they took their complaint/dispute before the District  Officer.  The District Officer summoned both parties and he asked the Defendant to stop. The Defendant admitted he stopped  briefly but continued in 2010. The Defendant alleged he was stopped when he was  about to put roof to the building.  Hisargument from his evidence is that he was never served with a  court order that could have stopped him from building. The   Defendant did not have any document to put his hand on to  secure his right on the land other than the agreement.  He  became aware of the family feud over   his user of the  suit land. Even the District Officer advised him to stop building until they had agreed.  No such agreement was  reached yet he still felt confident in putting more of his money on  a venture which in my view was very risky. It is like he was taking himself   from the   frying pan into the fire. It does not matter at what stage his building had reached but as a reasonable man with or without an injunction, he should have slowed down development until the dispute was resolved. It becomes difficult given the circumstances  to penalize the Plaintiff for the defendant’s self -inflicted wounds.

32.      The Plaintiffs have taken out limited grant of letters of  administration  in respect of the estate of Kinisu Totolela –deceased.  The grant gives them authority to administer their father’s property.  I therefore find they are entitled to the orders sought to the extent of the share held by their father in the suit  plot no. 16. Consequently I find the Defendant's only remedy is to  demand a refund of his money from Edward Wekesa Kinisu (DW2) and not the Plaintiffs. Given that I find the Plaintiffs havesucceeded in the case and will have their land. I order that each  party to bear its own costs of the suit.  It is so ordered.

DATED, SIGNED and DELIVERED this 22nd day of May,  2014

A. OMOLLO

JUDGE.