REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC  APPEAL CASE NO. 26 OF 2018

MARGARET MBULWA NGAU.....................................................APPELLANT

VERSUS

LEONARD KIMAITA...........................................................1^ST RESPONDENT

MUKA MUKUU (F.S.C)......................................................2^ND RESPONDENT

(Appeal from  the Judgment of  M/S Hon. A. M. Maina  Senior Principal Magistrate  delivered on  the 9^th Day  of October 2018  in Chief Magistrate’s Civil  Case No. 251  of 2008, Thika)

BETWEEN

LEONARD KIMAITA.......................................................................PLAINTIFF

VERSUS

MUKA MUKUU (F.S.C)..........................................................1^ST DEFENDANT

MARGARET MBULWA NGAU.............................................2^ND DEFENDANT

JUDGMENT

The Appellant herein Margaret Mbulwa Ngau, was the 2^nd Defendant in Thika CMCC No.251 of 2018. The 1^st Respondent Leonard Kimaita was the Plaintiff and the 2^nd Respondent, Muka Mukuu (F.S.C) was the 1^st Defendant in the above stated suit. The Plaintiff had via a Plaint dated 22^nd March 2008 sought for the following orders against the Defendants;

a) A Declaration that Plots No. 42 and 43 at the 1^st Defendant’s farm belong to the Plaintiff.

b) The purported  transfer  to 2^nd Defendant  be declared null and void.

c) Costs of the suit.

d) Such other and further  relief as the Court  shall deem fit and just to grant.

The Plaintiff (1^st Respondent) had averred that  in December 2004,  the 2^nd Defendant( Appellant) purchased  Plots No. 2788 and 2789, from the 1^st Defendant( 2^nd Respondent). That upon payment of the full purchase price on 15^th May 2006, the Plaintiff (1^st Respondent) took possession of the plots and started cultivating the same. That in 2007, the 1^st Defendant (2^nd Respondent) in total disregard of the Plaintiff’s (1^st Respondent’s) rights as the owner of the plots made  illegal demands to the Plaintiff(1^st Respondent)   to vacate the plots and move  to a new site.

That in blatant abuse of the  Plaintiff’s (1^st Respondent’s) rights of ownership  to the subject plots, the 1^st Defendant (2^nd Respondent)  purported to illegally  and fraudulently  put  the 2^nd Defendant( Appellant)  into occupation of the plots.  He particularized fraud as; putting a third party to wit the 2^nd Defendant (Appellant)  into the plots without the Plaintiff’s (1^st Respondent’s) knowledge. The Plaintiff (1^st Respondent) further  averred that the 1^st Defendant (2^nd Respondent)  having sold and allocated the plots to the Plaintiff (1^st Respondent), lacked capacity to transfer to the  2^nd Defendant( Appellant).

The suit was opposed and the 2^nd Defendant (Appellant)  filed  a Defence dated  28^th April 2008,  and denied all the allegations made in the Plaint. It was her contention that she was the legal owner of Plots No. 31,42 and 43, having lawfully  purchased them from the 1^st Defendant(2^nd Respondent) and that she had no nexus  with the Plaintiff’s (1^st Respondent’s)  Plots Number 2788 and 2789.  That since there was no demand to sue, the Plaintiff (1^st Respondent) was not entitled to costs and the suit was misconceived, bad in law and an abuse of the Court process.

The 1^st Defendant (2^nd Respondent) also filed  a statement of Defence dated 28^th April 2008,  and denied all the allegations made in the Plaint  and denied ever  selling the plot to the  Plaintiff (1^st  Respondent) that no land  was earmarked  for sale at the said area. And  that the Plaintiff (1^st Respondent ) and the 2^nd Defendant (Appellant)  are irregularly  on the suit property  and they do not have the locus standi. The 1^st Defendant (2^nd Respondent)  denied any rights  to property accruing to the Plaintiff (1^st Respondent) and the 2^nd  Defendant (Appellant)  That the  2^nd Defendant (Appellant) could not claim to pass any title. The suit is governed by the Cooperative Societies Act and the cause of action  was addressed  by an Inquiry Order  dated 9^th April 2008,  and the Jurisdiction of the Court was ousted. That the matter could only be filed at the High Court or the Land Disputes Tribunal.

The matter proceeded for hearing as follows:-

PLAINTIFFS CASE

PW 1 Leonard Gitonga Kimaita adopted his witness statement dated 23^rd September 2013 and testified that the 1^st Defendant was his employer. He produced his list of documents dated 30^th September 2013 as Exhibits 1 to 8. Further that he did not authorize anyone to sell Plots 42 and 43 which belonged to him.

He acknowledged that  though he was in Court over Plots 42 and 43, the plots he mentioned in his witness statement were plots no. 2788 and 2789.   That as per letter dated 20^th  December 2006,  the 1^st  Defendant   was offering him an alternative  plot because they sold  him wrong plots. That as per the letter,  the 1^st Defendant indicated that  it sold him a commercial  plot instead of a residential  plot, yet  a commercial plot was going for Kshs. 30,000/= and a residential  on for Kshs. 25,000/=,  That the 1^st Defendant asked him to top up with Kshs. 5,000/= to retain the plot  or in the alternative he be given  another plot for Kshs. 5,000/=.

That he did not pay the Kshs. 5,000/= as requested as he had bought a residential plot for Kshs. 25,000/=.   That the 1^st Defendant sold plots to non members as it had a loan and was disposing off its land to pay off the loan. That the 1^st Defendant was selling both commercial and residential plots. That the agreement dated 7^th December 2014, is altered in ink and it was one Kitavi who cancelled some sections of the documents. However, he did not counter sign against the alterations. That the alterations is  for the word  residential to commercial  and he had been in possession of the documents for many years . That the 1^st Defendant offered to refund his money  or give him an alternative plot or let  him keep the plot  so long as he would add Kshs. 5,000/=.

Further that  the plots were 100 by 100 M and the sale agreement shows the plots measuring  40 by 100 meters .That the 2^nd Defendant’ s plot’s description and acreage  are different from his and he had paid for both plots. That he paid Kshs.20,982 for plot No. 2789 and on 7^th December 2004 he again paid Kshs. 4,000/=  but he was not given a beacon certificate. That he did not take possession of the land, and  the 1^st Defendant never gave him a transfer document . That his plot measures 100 by 100 meters and the 2^nd Defendant’s measures 40 by 100 meters.

That he made payments twice totaling to Kshs.25,000/=. That Plot No. 2789 is indicated as Plot No. 43. That all residential Plots measured  100 by 100 metres  and the sale agreement showed that the Society could repossess  the plots if they were not fully paid for. That he paid the full amount and repossession did not apply to him. That Kitavi wrote letters after he finished paying for the plots.

DEFENCE CASE

DW1 Mwangangi Kitavi adopted his witness statement dated 1^st December 2017  and averred that he was an Administrative  Manager at Muka Makuu Ltd.  That in 1991, the Company took a loan from Cooperative Bank in order to raise funds. That in September 1991, the Society   called a meeting and the Management Committee authorized  the Society to sell  its commercial plots to members in order to repay the loan. That in addition, each member would contribute Kshs. 10,000/. Further that the commercial plots measured 40 by 100 metres. That the minutes referred to shopping centers which were the commercial plots. That in the year 2004, the Plaintiff purchased a   residential plot, but the area in which the plot was,  was for  commercial plots. That he bought a plot measuring 100 by 100 metres which was a residential plot for  Kshs.25,000/= .  That the commercial Plots costed Kshs.30,000/=.  He denied that the correction on D Exhibit  1, were done by him and further that the receipts were  for purchase of a commercial plot.

 That on 11^th October 2007, the Society held a meeting and reference was made to the sale of the plots. That the sale of the suit property was one of the plots being revoked as per Minute No. 6 of the said meeting.  Further that the cancellation of the sale was not in compliance with the Society’s regulations.  That the Society stated that the residential Plots should not have been sold and an inquiry was done via a meeting was held on  15^th August 2008, the inquiry was adopted.

 That  the Plaintiff bought his plot at Kshs.25,000/= and was allocated a Commercial plot instead of a Residential plot. That  he was requested to pay the difference of Kshs. 5,000/= and in the alternative, he was offered a Residential plot, but he never took any of the offers. That according to the sale agreement, if the purchaser failed  to repay the entire purchase price,  the Society would repossess  the land.

That the Plaintiff’s plots were allocated to  Margaret Ngao  after she paid the full purchase price for the Commercial plots as the Plaintiff failed to  comply with the Society’s directives. That Margaret Ngao paid the full purchase price which was by then Kshs. 80,000/=. That there was a  sale agreement between  the 1^st Defendant and Margaret Ngao for a plot measuring 40 by 100 meters  which were measurements for a commercial plot.

That as per the report dated 1^st October 2008, against  No. 33, it read  Leonard Kimaita  Ref No  2788  and 2789,  and the resultant plots are  42 and 43 in Sisal factory . That the size of plots allocated to the Plaintiff  were 100 by 100 M  for Kshs. 25,000/=  and they issued a receipt showing that the Plaintiff’s balance was nil . He acknowledged that the Plaintiff had fulfilled his part of the Contract.  That they sold the plot to the 2^nd Defendant on 25^th June 2007, That before a transfer was done, payment was to have been done. That the 2^nd Defendant bought the plot on 25^th June 2007, a year after she had been allocated. Further that the letters to the Plaintiff were handwritten and that they did not result from any Society’s deliberations, though there was a decision by the Society that the agreement between it and the Plaintiff be revoked as per minute 68. That the receipt for the purchase by  the 2^nd Defendant did not have the 1^st Defendant’s  letter, but were stamped as the letters  to the Plaintiff but the sale agreement  had the letter head.

That the Surveyor did not put a date on the beacon certificate. That the date should be the one when the 2^nd Defendant was shown the plot. That the Certificate was not dated and so it lacked validity. Further that the 2^nd Defendant bought plots from the 1^st Defendant and she paid the purchase price and was issued with a receipt. It was his further testimony that the Plaintiff never took possession of the plots    and that he was shown smaller plots in the wrong area. That they had revoked the initial sale by the time the plots were sold to the 2^nd Defendant by an Administrative action.   That under plots 42 and 543 in Sisal  Factory, the 2^nd Defendant is indicated as the  owner  and the Ministry  of Co-operative Societies recognized the 2^nd Defendant as the owner.  That according to the document, the Plaintiff and the 2^nd Defendant do not own the plots in question. That the 1^st Defendant’s management committee did not conduct its affairs properly.

That the Plaintiff bought land in 2004, and the case was filed in March 2008 and the inquiry is dated 1^st October 2008. That the decision to compile the inquiry report was made in the year 2007. Further that the plots were sold to members and non-members. That the receipts issued to the Plaintiff were not headed but stamped and that the General Manager also wrote to the Plaintiff.

DW2 Margaret Ngao, the 2^nd Defendant adopted her witness statement dated  9^th October 2013  as part of her evidence .  It was her testimony that she purchased plots from the 1^st Defendant   vide sale agreement in respect to Plots No. 42 and 43  and she paid Kshs. 80,000/= for each plot. That she was shown the plots and after   she finished paying the purchase price in 2007, the plots were issued to her upon being shown the beacon certificates . That her plots are Commercial plots and after the inquiry was done she was not told to vacate. That she lives on the plots which she has fully developed and if her ownership is nullified, it would be unjust. Further that the beacon certificate has plot 31, 42 and 43 sisal area , members no and the date of issue was 18^th May 2006. That the Plaintiff found her fencing the plot in 2007, and informed her that the plot was his.  Further that she took possession of the plot in June 2007, and the inquiry report  indicates that she was among the beneficiaries. 

The parties filed written submissions and thereafter  the trial Magistrate  delivered her determination  on 9^th October 2018,   and allowed  the Plaintiff’s (1^st Respondent’s)  claim and entered Judgment for the Plaintiff   and held that ;

“In summary, I find the Plaintiff and the  1^st defendant  entered into a valid  land sale  agreement, in which he bought plots No. 42 and 43  at Kshs.25,000/=  each.   I find that  as a result of the Contract , the said plots belong to the  Plaintiff and the  1^st defendant  therefore  had no capacity  to sell the same plots to the 2^nd Defendant .”

The Appellant was aggrieved by the decision and by a Memorandum of Appeal dated 26^th October 2018, he filed the instant Appeal and  sought for orders that;

1) The Appeal be allowed.

2) The Judgment delivered on the 9^th  Day  of October 2018  be set aside and the suit  be ordered for retrial.

3) The  Costs of  and occasioned  by the Appeal be provided for.

4) Such further orders as the Honourable Court  may deem fit to grant .

The Appeal is based on the grounds that;

1) The Learned Magistrate  erred and misdirected  herself in Law  and fact  by ignoring the 2^nd Defendant ‘s evidence  totally on the issue  of the size  of the plots  claimed an d the plots purchased by the 2^nd Defendant.

2) The Learned Magistrate erred and misdirected  herself in Law  and fact by failing  to appreciate  that the 2^nd Defendant  has a valid claim  over the  subject property.

3) The Learned Magistrate erred and misdirected  herself  in Law  and fact by awarding  the Plaintiff commercial plots  which measure 40 by 100 ft when he had indeed purchased plots of  100 by 100 ft  from the 1^st Defendant.

4) The Learned Magistrate  erred and misdirected herself in Law  and fact by failing to appreciate  that the Appellant’s  plots measure  49  by 100 ft  whereas the  Respondent’s plots  measured 100 by 100 ft  and therefore different.

5) The Learned  Magistrate erred and  misdirected herself  in law and in fact  by declaring  the plots sold by the 1^st Defendant  to the 2^nd Defendant  as being  null and void.

6) The Learned Magistrate  erred and misdirected  herself in law and in fact  by awarding  the Plaintiff  with the Appellant’s plots  which measure 40 by 100 ft and not 100 by 100ft .

The Appeal was canvassed by way of written submissions. The Appellant through the Law Firm of  S.K Muendo & Company Advocates  filed her written submissions dated  13^th August 2020,  and submitted that  the 1^st Respondent did not tender any  document to show the  connection between  Plots No. 2788 and 2789  with Plot No. 42 and 43, respectively as the 1^st  Respondent pleaded that he had purchased Plot No. 2788 and 2789  in 2004  and sought for a declaration  that Plots No. 42 and 43  at the 2^nd Respondent’s farm belonged  to him.  Further  that the trial Court ignored the Appellant’s evidence that she was the legal owner of the suit properties. Further that the Court admitted altered documents and failed to appreciate Appellant’s evidence.

That the trial Court erred in awarding the 1^st Respondent 2 plots, which did not support   his claim and neither did they support his   description. That there was no doubt that the plots No. 2788 and 2789 were different plots from Plots 42 and 43 and hence the trial’s  Court decision was misguided. To buttress her argument,  the Appellant relied on the case of   Independent Electoral  and Boundaries Commission  & Another …Vs…  Stephen Mutinda Mule & 3 others (2014) eKLR, where the Court  of Appeal Considered  with approval two foreign cases on the issue of parties  being bound by their pleadings.

The 1^st Respondent in opposing the Appeal filed his written submissions through the Law Firm of Waithira Mwangi & Co Advocates  dated  8^th September 2020,  and submitted that from the Contract document  dated 7^th December 2004  and the Sale repayment forms , it was clear on what  was bought, what was the size, what was the purchase price  and the link between  Plots No.  48 and 49 and Numbers 2788 and 2789.  That the correspondence from the 2^nd Respondent confirmed that plots numbers 2788 and 2789  refer to plots No. 42 and 43 . Further that the Appellant in her own submissions in the lower Court admitted that the plots were first sold to the 1^st  Respondent.

Further that the 2^nd Respondent had no authority to  re allocate the suit properties to the Appellant  and without his consent.   That the act  of renaming the plots  as commercial plots  as opposed to residential plots  could not invalidate the first sale  nor defeat his  claim over the plots. The 1^st Respondent relied on the case of  National Bank   of  Kenya …Vs… Pipelastic  Samkolit (K) Ltd & Another (2001)  where the Court held that a Court of Law  cannot  purport to rewrite  a Contract between  the  parties.  That the parties are bound  by the terms of  their contract  unless coercion, fraud or undue influence are pleaded.

Further that no variation agreement was ever signed  by both the 1^st and 2^nd Respondent  to include an additional further  Kshs. 5,000/= for each plot.   That both parties were bound to honour  the sale agreement that was entered into  on 7^th December 2004.. Further that no minutes were produced to  show that  there was a resolution to charge an additional expense .

Further that the Contract of sale between the  Appellant and the 2^nd Respondent was null ab initio  as by the time the Appellant claims to have  bought the suit properties on 25^th June 2007, they already belonged to him. He relied on the case of  Mount Kenya  Investment Limited…Vs… Allan Ngethe & 2 others (2009)eklr  where the Court relied on  M’Mukanya …Vs… M’Mbijwe(1984) KLR 761 where the Court held that;

‘..once a person  has been allocated a plot , and pays the rent due  and is given the plot number the plot  becomes his and  does not have to be in physical possession .”

The  Court was  urged to dismiss the Appeal.

The above analysis summarizes the pleadings and evidence before the trial court. Further it captures the Grounds of Appeal and submissions by the parties herein. The court is called upon to make a determination of this Appeal filed by the Appellant as provided by Section 78 of the Civil Procedure Act; This court is called upon to analyze the whole evidence ,evaluate, assess, weigh, investigate and scrutinize the said evidence and give its own independent conclusion.

However, the court will be alive to the fact that it neither saw nor heard the witnesses and and the findings of the trial court must be given due deference unless it falls foul of proper evaluation of the evidence on record or the trial Magistrate acted on a wrong principle in arriving at the findings. See the case of Selle –vs- Associated Mobi Boat Co (1968) EA 123:-

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 the court will only interfere with the decision  of the trial court where it is shown that the trial court misapprehended the applicable law and failed to take into account the relevant facts or took into account an irrelevant fact. See case of Ocean Freight Shipping Company Ltd –vs- Oakdale Commodities Ltd, Civil Appeal No. 198 of 1995):-where the Court held that;

“…..and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong”

The court finds  the issues for determination are;

1) Whether there was a Nexus  between Plots 42 and 43 and Numbers 2788 & 2789.

2)  Whether there was a Binding  Contract between 1^st and 2^nd  Respondents  over the suit properties.

3) Who is the Legal Owner of the Suit properties.

4) Whether the Appeal is merited.

5) Who should bear the cost of the Appeal.

1. Whether there was a Nexus  between Plots 42 and 43 and Numbers 2788 & 2789.

The Appeal is manly predicated on the issue that the trial Court misdirected itself in finding that  the Plots No. 42 and 43 as claimed by the 1^st Respondent were the  same as the Plots No. 2788 and 2789 as pleaded  being the ones he had bought  from the 2^nd Respondent.

 It is not in doubt that the 1^st Respondent bought plots No. 2788 and 2789 from the 2^nd Respondent. It is the  1^st Respondent’s contention that  though the sale agreement refer to plots numbers  2788 and 2789, what was marked on the ground  were plots No. 42 and 43.  The Court has seen the letter dated 5^th July 2007 referenced “Commercial Plots  NO. 42 and 43  Sale Agreement No. 2788  and 2789 Sisal Factory ‘the sad letter was from Mr. Kitavi  and the same  bore  the  stamp of the  2^nd Respondent. The Court has also seen subsequent letters dated  12^th July 2007. 20^th July 2007 and 30^th  July 2007 indicating that plots No. 42 and 43  are the same as No. 2788 and 2789. More compelling is the fact that DW1 who was a representative of the 2^nd Respondent confirmed that  the  Appellant had been allocated land that had initially been allocated to the 1^st Respondent.  The Appellants’ beacon certificate produced in evidence shows that she had been allocated three portions amongst them Plots No. 42 and 43.

Therefore, there is no doubt in the Court’s mind that there is a Nexus between  Plots No. 42 and 43 and  Numbers 2788 and 2789 and the same refers to the same plots respectively.

2.  Whether there was a Binding  Contract between 1^st and 2^nd  Respondent  over the suit properties

Vide a sale agreements dated 7^th  December 2004, the 1^st and 2^nd Respondents entered  into two separate sale agreements over the suit properties . The Court has seen the sale agreements.  The said agreement are in writing and are signed by the parties. It thus met the requirements of Section 3(3) of Law of Contract Act which states as follows:-

3 (3) No suit shall be brought upon a contract for the disposition of an interest in land unless— 

(a) the contract upon which the suit is founded— 

(i) is in writing; 

(ii) is signed by all the parties thereto; and

(b) the signature of each party signing has been attested by a witness who is present when the contract was signed  by such party:

Provided that this subsection shall not apply to a contract made in the course of a public auction by an auctioneer within the meaning of the Auctioneers Act (Cap. 526), nor shall anything in it affect the creation of a resulting, implied or constructive trust.

Further the agreement for sale contains the names of the parties, the description of the property, the purchase price and the conditions thereto.   A look at the said sale agreement confirms that the same is a valid sale agreement which is enforceable by the parties.  See the case of Nelson Kivuvani....Vs....Yuda Komora & Another, Nairobi HCCC No.956 of 1991, where the Court held that:-

“the agreement for sale of land which contains the names of the parties, the number of the property, the purchase price and the conditions attached thereto, the obligations, express or implied, of each of the parties and signed and witnessed by two witnesses who signed against their names amount to a valid contract”.

All the above ingredients are met in the instant sale agreements entered between the 1^st and 2^nd Respondents  and therefore the sale agreements between the two are valid. Having found that the two had  valid sale agreements, it follows that the parties are bound by the terms of their Contract. See the case of National Bank of Kenya Ltd ...Vs...Pipeplastic Samkolit (K) Ltd & Another, Civil Appeal No.95 of 1999 (2001) KLR 112 (2002) EA 503, where the Court held that:-

“A court of law cannot re-write a contract between the parties.  The parties are bound by the terms of their contract unless coercion, fraud or undue influence are pleased and proved”.

It is not in doubt that the  2^nd  Respondent was bound by the terms of   the Contracts that Plots No. 2788 and 2789, which the Court has already held are the same as Plots No 42 and 43 were to be sold to the  1^st  Respondent for Kshs. 25,000/=. Further it could only  repossess the suit property if there was failure by the  1^st Respondent  to  pay total payment within the period  given.

The 2^nd Respondent in its letters sought to change the terms of the Contracts by   requiring the 1^st Responded to add more money or be given an alternative plot. By writing the said letters, the 2^nd Respondent forgot that it was bound by the sale agreement that it had voluntarily entered into and it  had a duty to fulfil the conditions thereon. The 2^nd Respondent could not unilaterally cancel the transaction or invoke new terms in the contract such as payment of Kshs.10,000.  See the case of Kenya Breweries Ltd....Vs...Natex Distributors Ltd, Nairobi HCCC No.704 of 2000, where the Court held that:-

“Parties to a written contract are bound by its terms and the invocation of nonexistent clause to terminate a contract is not legitimate even though there is a termination clause.  However much a party resents the behavior of another party to the contract, it cannot terminate it without following the laid down procedure”.

Further in the case Mjomba Agencies Limited..Vs…Mvule Investment Company Ltd (2017) eKLR the Court held that;

“..a party  who wishes to vary or modify  a contract does  not do so by preparing another contract , he does  so  by doing a variation agreement  which must state  whether or not  the new agreement replaces  or supersedes the earlier agreements…… My considered view is that if parties intended to incorporate the earlier agreement in the alter one they would have done so by way of an addendum or by referring to it which has not done been done in this case.”

It is clear, that there was no modification from the agreement initially made by the 1^st and 2^nd Respondents and thus the parties were bound by the terms of their agreement.  The 2^nd Respondent could not change the said agreement without the consent of the 1^st Respondent.

3. Who is the Legal Owner of the Suit properties

It is the Appellant’s contention that the suit properties belonged to her having entered into an agreement of sale with the 2^nd Respondent and having paid the full purchase price. While it is not in doubt that the Appellant and the 2^nd Respondent entered into  a sale agreement over the suit properties, it is clear that the 1^st Respondent had already been allocated the suit property. Therefore, the said properties were not subject to allocation by any other person. See the case of M’Ikiara M’Mukanya & another vs Gilbert Kabere M’Mbijiwe [1983] eKLR;-

“The plot they were granted was not available for allocation since 1967 when it was granted to the respondent. The council had no plot No 58 at Nkubu Market to allocate and it could not allocate what it did not have. This may explain the fact that although the appellants exhibited the letter of indication requesting them to report at the Council's office and be shown the plot allocated to them, they neither spoke of nor exhibited in their evidence any Letter of Allocation granting to them the plot, which the respondent exhibited. The alleged allocation to the appellants is of no effect in law. On the other hand the respondent's interest whether as a licensee, which he is not, or a lessee, which I say he is, was never determined by the Council, and he remains the legal owner of plot No 58, Nkubu Market.”

This Court finds and holds that the suit properties had already been allocated to the 1^st Respondent and could not be allocated to the Appellant. Consequently the Court finds that the 1^st Respondent is the legal owner of the suit properties.

4. Whether the Appeal is merited

In her Appeal the Appellant had sought for various orders  including that the  Judgment delivered on 9^th  October 2018  be set aside and the suit be ordered for  retrial.  The  Appellant has not demonstrated to this Court why the suit should go for retrial and therefore the Court finds that the said prayer is not merited.

In its Judgment the trial Court allowed the 1^st Respondent’s claim as prayer in the Plaint dated 22^nd March 2008. In essence the Court found that the  1^st Respondent was the owner of the suit properties. As per the analysis of the evidence by this Court, it has come to the same conclusion as the trial Court.  Consequently, the Court finds and holds that the Appeal herein is not merited.

5. Who should bear the cost of the Appeal

As provided in Section 27 of the Civil Procedure Act the Court has discretion to grant costs.  Costs usually follow the event unless there are special circumstances, that would warrant the deviation of the same.   The Court finds that the 1^st Respondent is the successful party and he is therefore entitled to the costs of the  Appeal.

Having now carefully considered the available evidence tendered at the lower Court, having evaluated the same and coming to its own independent conclusion, this court finds and holds that the trial Magistrate did not err or misapprehend the facts and evidence on record. Consequently, this Court finds that the Appeal is not merited and the same is dismissed entirely with costs to the 1^st Respondent.

It is so ordered.

Dated, signed and Delivered at Thika this 17^th  day of December 2020

L. GACHERU

JUDGE

17/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15^th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of the Civil 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

M/s Muendo for the Appellant

No appearance for the 1^st Respondent

No appearance 2^nd Respondent

L. GACHERU

JUDGE

17/12/2020