Land - action for a permanent injunction to restrain the defendant from trespassing or otherwise interfering with the plaintiff's use of his land

Gilbert Seii v Fredrick K Cheserek & another

High Court, at Eldoret May 23, 2003

Nambuye J

Civil Suit No 264 of 1997

Land law - allotment – allotment of land by the Agriculture Development Corporation – where there is double allotment–– both allottees have not obtained title – whether the title reverts back to the Agriculture Corporation.

Evidence - witness - witness testimony – failure of witness to give testimony – where plaintiff relies on facts determinable by such testimony – whether the court can make a conclusive ruling.

The plaintiff was allocated 15 acres of land by the 2nd defendant, the Agricultutal Development Corporation, through its managing director.

The letter of allotment did not indicate the plot numbers but these were allegedly inserted subsequently by an employee of the 2nd defendant. The employee did not testify in court. The plaintiff made part payment but did not settle on the plots.

The 1st defendant was allocated 30 acres by the 2nd defendant at a later date and made part payment for the same. The plot numbers were the same as the plaintiff’s. Since neither party had title to the land, they referred the dispute to the 2nd defendant who confirmed that two of the three plots were to be allocated to the 1st defendant. The third plot was alleged to have been given to squatters but the 2nd defendant maintained that he had retained all 30 acres.

The 2nd defendant had not withdrawn the letter of allotment issued to the plaintiff nor had they refunded his money. The 2nd defendant was served but did not defend the suit. The plaintiff and the 1st defendant each wanted the suit plots to be awarded to them respectively.

Held:

1. Since neither party title to the land the reversionary title was still with the second defendant when the dispute erupted.

2. As the employee who had allegedly inserted the plot numbers did not testify for the plaintiff, the court could not conclusively rule that the plots had been properly allocated to the plaintiff.

3. The plaintiff assumed that each plot measured 5 acres making a total of 15 acres. The actual acreage was 30 acres and if awarded to the plaintiff, they would be in excess of his entitlement.

4. The balance tilted in favour of the 1st defendant as the person who should retain the 3 plots, but the plaintiff was still owed 15 acres by the 2nd defendant.

Cases

Cane Land Ltd v The Commissioner of Lands & 3 others Nairobi Civil

Appeal No 311 of 1998

Statutes

No statutes referred.

Arthur Matere Otieno v Dorina Matsanza

High Court, at Eldoret May 23, 2003

Nambuye J

Civil Case No 49 of 1994

Land law - allocation of land - allocation of land by the Settlement Fund Trustees - remedy available to the Fund in default of repayment – whether the Fund can repossess land which they have assisted to finance – section 174 of the Agriculture Act (cap 318) - cancellation of allocation of land by the Fund - where the Minister for Lands & Settlement has not received an application for re-allocation of land - whether it must be shown that the Minister approved the re-allocation - whether the proprietor of land whose allocation is cancelled needs to be personally served with notice - whether substituted service of notice is allowed under the Agriculture Act (cap 318).

Land law - sale of land - sale of land by an allottee holding a reversionary interest in the land - whether the allottee needs consent of the title holder to effect the sale.

Land law - controlled transactions - Land Control Board Consent – where the Land Control Board has not given consent after six months - effect on an agreement dealing with land.

Land law - adverse possession - how adverse possession pleaded in a suit - whether plea can be pleaded by way of counter-claim – whether originating summons the proper procedure - requirement of peaceful occupation for 12 years.

Dixon Matsanza, the husband of the defendant herein, was allotted the suit plot in 1964 which he acquired by using funds financed by the Settlement Fund Trustees. Certain conditions were attached to the allotment, one of which was for the allotee to take up possession and start developing the land.

Allegations were made that the plot had been abandoned and people who were interested in it started applying to the Minister for Lands and Settlement to be allotted the plot. This prompted the officers of the Ministry to issue a notice to the allottee to remedy the breach failing which the plot would be repossessed.

It transpired that Dixon Matsanza, the original allottee, had gone overseas for further studies but had left the defendant and his seven children behind. No officer confirmed that the notice was personally served. It was pinned on a tree in the farm. In a letter dated 15.3.1976, the Area Settlement Controller cancelled the allotment of the suit plot for failure to remedy the breach of conditions. The cancellation was alleged to have been made on the directives of the Settlement Fund Trustees.

Following the cancellation, the plot was reallocated to one Abdul Rahman Musa who later sold it to the plaintiff.

Upon the death of Dixon Matsanza, the defendant became the legal representative. It was the plaintiff’s allegation that the defendant knew and accepted the conditions given by the Ministry of Lands and Settlement as evidenced by her signature on the certificate of acceptance. The plaintiff also alleged that the defendant had not paid the loan given by the Settlement Fund Trustees which was meant to be repaid within 10 years. The plaintiff further averred that the defendant never developed the land and had deserted it and that is why the land was repossessed. She only put up a temporary structure when she learned she was no longer the owner of the land. The plaintiff asserted that he followed the correct procedure to acquire the land and the defendant should be evicted.

The defendant’s key averments were that the said land was allotted to her deceased husband who left for the United States of America after he had constructed a house on the land which the family had been using uninterrupted. It was her contention that if the land had been registered in the name of the plaintiff, this had been fraudulently done and the register should be rectified. The defendant further averred that she had been in possession of the land for over 30 years without interruption hence her name should be reflected on the title which she had acquired through adverse possession.

Held:

1. The Settlement Fund Trustees are not empowered under section 174 of the Agriculture Act (cap 318) to reposses land which they have assisted to finance.

2. The only remedy available to the fund in event of default of repayment is an action to recover monies due to it through civil debt collection procedure.

3. Cancellation of allocation of land by the Settlement Fund Trustees is improper if the Minister for Lands and settlement has not received a letter of application from any person wishing to be re-allocated land. It must be shown also that the Minister approved the second reallocation.

4. For cancellation of allocation of land to be proper it is a requirement that the proprietor of the land should be personally served with notice.

5. Nothing under the rules made under subsidiary legislation of the Agriculture Act (cap 318) allows for substituted service of notice.

6. An allotee holding a reversionary interest in land can only sell with the consent of the title holder.

7. If the Land Control Board has not given the requisite consent within 6 months, a renewal of the agreement to deal with the land or a fresh agreement has to be entered into.

8. In a plea of adverse possession, there should be peaceful occupation for at least 12 years, which starts running with respect to titles of parties to the suit only.

9. A plea of adverse possession cannot succeed if it is advanced by way of counter claim in a suit. It must be advanced by way of originating summons.

10. (Obiter) A prudent purchaser of land should make a physical inspection on it and carry out inquiries to see if the title is clean or not. If this is done then he will be presumed to have purchased the property with full knowledge of the existence of the dispute on it. The plea of an innocent purchaser will not hold in such an instance.

Suit dismissed.

Cases

No cases referred to.

Statutes

1. Trespass Act (cap 294)

2. Agriculture Act (cap 318) sections 167, 168(3), 171, 172, 174,

Advocates

M/s Kaplan & Stratton Advocates for the Defendant.

Muthui v Muthui

High Court, at Eldoret May 8, 2003

Tunya J

Probate and Administration Cause No 267 of 1997

Civil Practice and Procedure – stay of execution –– staying of enforcement of judgment – pending the hearing and determination of the intended appeal – when refusal of stay renders application nugatory.

The applicant, a beneficiary of the deceased’s estate, brought a motion for orders that the enforcement of a judgment be stayed pending the hearing and determination of an intended appeal.

The application was brought on grounds that the judgment did not distribute the deceased’s shares in Highlands Inn Limited and that the 1^st respondent had interfered in the running of the business which could occasion the applicant substantial loss if the stay is not granted.

Held:

1. Where the act complained of has already been effected, a prayer for stay is not tenable. A stay is meant to prevent breach of a party’s legal right before it takes place. At best this court may make orders that will bar him from disposing of that business.

2. The applicant held only one share hence her stake in the said business be described as substantial.

3. The status quo of Highlands Inn Ltd and the premises upon which it operated was feasible and it was to be preserved pending the hearing and determination of the intended appeal.

4. The status quo of the deceased’s estate may be maintained and preserved as it existed prior to the date of the aforesaid judgment.

Cases

No cases referred to.

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order XLI rule 4

Benjamin Kipchumba Bett v Electoral Commission of Kenya & 2 others

High Court, at Eldoret April 4, 2003

Etyang J

Election Petition No 1 of 2003

Election petition - procedure - requirement that petitioner must personally sign the petition - basis for that requirement - whether the petitioner must sign in a particular manner - discrepancy in signatures - decision for the election court - weight given to technicalities - section 23(1)(d) of the National Assembly and Presidential Elections Act (cap 7).

The petitioner challenged the election of the third respondent as a Member of Parliament based on the ground that several laws relating to elections had been flouted.

The third respondent raised a preliminary objection contending that he petitioner had not signed the affidavit in support of the application and the notice of appointment of advocate, which rendered the petition incurably defective. The third respondent argued that the signatures appearing in the petition, notice of appointment of advocates and in the affidavit were not by the same hand and that none of those signatures was the petitioner’s. This, it was argued, was against the requirement that the petitioner must personally sign the petition.

The petitioner conceded that the signatures were indeed different but maintained that they were by his hand. He submitted that one may have several different signatures and can be perfectly entitled to sign differently on any occasion.

Held:

1. The mandatory requirement that a petitioner in an election petition shall personally sign a petition is based on the ground that a petitioner must take personal responsibility for all the averments contained in the petition.

2. There is no legal requirement that a petitioner ought to sign a petition and a notice of appointment of advocates in a particular manner.

3. An election court is mandated under section 23(1)(d) of the National Assembly and Presidential Elections Act (cap 7) to decide all matters that come before it without undue regard to technicalities.

Preliminary objection overruled.

Cases

Moi, Daniel Toroitich Arap vs Kenneth Stanley Njindo Matiba & 2 others

(Nairobi) Civil Appeal No 176 of 1993

Statutes

1. National Assembly and Presidential Election Act (cap 7) sections 20(1)(a); 23(1)(d)

2. National Assembly and Presidential (Election Petition) Rules (cap 7 Sub Leg) rules 4(3), 9

Advocates

M/s Khamati, Akhaabi & Co Advocates for the Petitioner

Mr G K Mukele and Kihara Muttu for the 1st and 2nd Respondents

A G N Kamau for the 3rd respondent

S W v N G K

High Court, at Eldoret February 24, 2003

Etyang J

Civil Appeal No 37 of 2002

(An appeal from the Judgment in Eldoret Chief Magistrate’s Court

Divorce Cause No 16 of 2001 delivered on 19th April 2002 by

Lucy Gitari Esq PM)

Civil Practice and Procedure - matrimonial causes - extension of time to file for divorce on grounds of insanity - whether pleadings may be filed out of time under the Matrimonial Causes Act (cap 152).

Family law - marriage - capacity to marry - presumption of sanity – proof of insanity of party contracting a marriage - burden of proof.

Family law - marriage - marriage contract - where it can be avoided as any civil contract - factors that may vitiate contract to marry.

Family law - custody of children - matters the court should consider – the welfare of the child - preference to be given to the mother.

The appellant appealed against an order of the Chief Magistrate’s Court which nullified her marriage to the respondent.

The appellant alleged that the petition for dissolution of marriage was defective and was filed out of time. She contended that the trial Court was wrong in granting custody of their son to the respondent and shifting the burden of proving facts to her.

The respondent on his part, averred that at the time he contracted the marriage with the appellant, he was ignorant that she suffered from recurrent fits of insanity. He disclosed that just before the wedding the appellant had suffered a bout of mental illness but her mother misrepresented to him that the seizure was a mainifestation of malaria.

The respondent thus argued that the appellant did not have the mental capacity to enter into a marriage contract.

Held:

1. Although section 14 (10) (f) of the Matrimonial Causes Act does not specifically provide for extension of time to file for divorce on grounds of insanity or recurrent fits of insanity or epilepsy, rule 20 of the Matrimonial Causes Rules makes such provision. Pleadings may be filed out of time thereunder with the leave of the Court.

2. It is trite law that all persons of lawful age are presumed to be sane. People are presumed to be capable of contracting a valid marriage until the contrary is made to appear; and if the contrary is alleged, it must be proved by the party imputing it.

3. A marriage is a civil contract which may be avoided for want of mental capacity or consent, which are essential elements for all contracts.

4. Consent for purposes of a marriage contract may be vitiated by fraud, deliberate misrepresentation or false representation of essential facts to the transaction or contract.

5. By deliberately misrepresenting to the respondent the true nature of the seizure the appellant had suffered immediately before the contract of marriage was entered into between the appellant and the respondent, the appellant’s mother obtained the respondent’s consent fraudulently and the subsequent contract became null and void for lack of consent.

6. In matters of custody of children, paramount consideration is placed on the welfare of the child.

7. In the absence of exceptional circumstances, an infant should be left in the custody of his or her mother.

Appeal dismissed.

Cases

1. Park, In the Estate of, Park v Park [1953] 2 All ER 1411; [1953] 2 WLR 1012; [1954] P 112

2. Durham v Durham (1985) 10 PD 80

3. Hunter v Edney (Otherwise Hunter) (1885) 10 PD 81

4. Jemima Cole v William Cole (1857) 5 Sneed’s Ten Rep 56

5. Wambua v Okumu [1970] EA 578

Texts

Latey, W (1952) Latey on Divorce: The Law and Practice in Divorce and Matrimonial Causes London: Sweet & Maxwell pp 193, 209 & 211

Statutes

1. Matrimonial Causes Act (cap 152) section 14 (1) (f) (ii)

2. Matrimonial Causes Act 1927 [UK]

3. Matrimonial Causes Rules (cap 152 Sub Leg) rules 3, 20

4. African Christian Marriage and Divorce Act (cap 151)

Advocates

Mrs Patricia Nyaundi for the Applicant

In re the estate of Miriam Jepkios Ngetich

High Court, at Eldoret February 21, 2003

Nambuye J

Probate and Administration Cause No 29 of 1996

Succession - transfer of land – incomplete transfer of land – proceedings commenced to transfer land to the petitioner – objector filing case to stop the transfer – deceased dying before determination of the case – whether the Court can effect the transfer.

Succession - application for grant – application for grant with will annexed – requirement that the application be accompanied by an affidavit – what the affidavit should contain.

Succession - application for grant – procedure for such application – distinct procedures applicable in testate and intestate petitions – where a party uses the wrong procedure to apply for grant – whether the law provides for substitution with the proper procedure – whether the fact that the wrong procedure has been used means the will has to be ignored – section 53 (a) and (b) of the Law of Succession Act (cap 160) – rule 14 (1) of the Probate and Administration Rules (cap 160 sub leg).

Succession - will – nature of a will – whether a will is absolute – matters a court needs to consider in making an order interfering with a will – sections 26 and 28 of the Law of Succession Act (cap 160).

The petition in this case was presented by the executor of the last will of one Miriam Ngetich but was objected to by Ann Jepkios who alleged to be the wife of the deceased under Nandi customary law.

The objector argued that she had not been consulted when the proceedings were filed and that she should be the one to be issued with the grant. She argued further that when she learned that the suit land was being transferred to the petitioner, she filed a case in a Kapsabet court to block the transfer but the deceased died before the case was determined. It was her evidence that as the lawful wife of the deceased, it was her and her son who were entitled to inherit the deceased’s property.

The petitioner had wrongly used form No 80 which is prescribed for intestate succession applications. A consent was filed and endorsed whereby the petitioner was allowed to substitute the wrongly filed form with the correct form No 78 which applied to testate petitions.

The objector submitted that the use of the wrong form meant that the application was a nullity ab initio which could not be cured by an amendment by consent or otherwise.

Held:

1. The law cannot move to perfect an incomplete gift. The transfer of land to the petitioner in this case was blocked and hence was not completed.

2. Section 53(a) and (b) of the Law of Succession Act (cap 160) provides for distinct modes of presenting applications for forms of grants in case of testate succession and in cases of intestacy.

3. When making an application for a grant with the will annexed, such application should be accompanied by an affidavit giving details of the form of the will, names and addresses of the execution and the names and addresses of the witnesses as well as other details required by rule 7 of the Probate and Administration Rules.

4. Where a party, as in this case, uses a wrong statutory form to apply for a grant, there is no procedure for substitution with the proper form.

5. Where the wrong procedure is used in applying for a grant the law provides for an amendment and not substitution. Rule 14(1) of the Probate and Administration Rules provides that an amendment be made by filing form 62.

6. In this case form 62 was not filed and therefore the substitution order made following a consent between the parties was erroneous and it could not hold. What the Court was dealing with, therefore, was an intestacy.

7. The fact that a wrong procedure had been followed to present a will to the Court did not mean that the will had to be ignored. It had to be looked at. When the will is so looked at, the Court has to decide whether the same is to be upheld.

8. Section 26 of the Law of Succession Act (cap 160) stipulates that a will is not absolute. Where there is contention, the Court can interfere and make provision for a dependant left out of inheritance.

9. In exercising the powers given under section 26 of the Law of Succession Act (cap 160) the Court has to bear in mind the provision of Section 28 dealing with the circumstances a court needs to consider in making an order to interfere with a will.

Cases

No cases referred to.

Statutes

1. Law of Succession Act (cap 160) sections 3(2), 26, 28, 29, 53(a), (b),

2. Probate and Administration Rules (cap 160 Sub Leg) rules 13, 14(1)