1.By a plaint dated 26th June, 2007, the appellant herein instituted a suit in the lower court to wit Nyeri CMCC No.287 of 2007 seeking judgment against the respondents for a declaration that she is the legal owner of plot No.181 Chaka Market; cancellation of the purported sale of the said plot by the 1st respondent to the 2nd respondent; a permanent injunction to restrain the respondents, their agents or anyone claiming through them from interfering with her quiet possession of the suit property and an order compelling the 2nd respondent to remove the illegal structures on the suit property, failing which he be forcibly evicted therefrom; costs of the suit and interest.
2.The appellant’s case was premised on the grounds that she is the legal owner of Plot No.181 Chaka Market (hereinafter referred to as the suit property); that there existed a dispute between the 1st respondent and herself over ownership of the suit property and that the dispute was determined in her favour.
3.The appellant complained that on 11th May 2007, the 1st respondent purported to sell the suit property to the 2nd respondent who entered into the suit property and started constructing a permanent building thereon.
4.Lamenting that her attempts to get the 2nd respondent hand over to her vacant possession of the suit property were futile, the appellant brought the suit referred to in paragraph 1 above seeking the reliefs listed therein.
5.Upon being served with summons to enter appearance, the respondents filed the statements of defence dated 24th July, 2007 through which they denied the allegations levelled against them.
6.The respondents further denied the allegation that the appellant was the owner of the suit property and contended that the suit property was allocated by Ndathi Mugunda Company Ltd to the 1st respondent who sold it to the 2nd respondent.
7.For the foregoing reasons, the respondents urged the court to dismiss the appellant’s suit with costs to them.
The Plaintiff’s case.
8.When the case came up for hearing, the appellant availed five witnesses, herself included.Anne Nyawira Kirugumi, informed the court that she bought shares from the company herein through Dominic Gichuru (P.W.4). She paid for two shares but was given one. In 1995, she received information from P.W.4 that someone was developing her plot. She complained to the company and paid Kshs. 40/= for arbitration. For the two plots she paid Kshs. 10,600/=. She had no receipts to prove the payments because she lost all the receipts in 2001. Which loss she reported to the police and was issued with a police abstract. She produced the abstract as Pexbt 1(a) and the receipt issued in respect thereof as Pexbt 1(b).
9.The appellant further informed the court that James Wachira whom she had a case with before the District Officer (D.O), was the one who was developing the suit property. The appellant informed the court that the dispute taken before the D.O was decided in her favour. The court heard that the respondents were issued with a letter dated 25th May, 2007 by the Company and notice of demand of an even date. She produced the letter and demand as Pexbt 3 and 4 respectively.
10.In cross examination, the appellant maintained that she lost all receipts and documents and that the company had shown her the site and issued her with receipts. Several receipts were marked for identification as PMFI-1 to 5 and clearance certificate as PMFI 6. She stated that she was shown the suit property in 1983 and that she had a dispute with the 1st respondent’s father in 1995.
11.The court heard that the 2nd respondent took his receipts to the Company officials when he was summoned by the Company in 2007 but stated she did not see the 1st respondent in 1995 during the dispute with his father and she is not aware of DMFI 1-6.
12.William Mwangi Macharia, a director of the company from 14th September 2007 informed the court that the appellant is a member of the company; that the appellant reported the loss of her ownership documents to him; that they went to the D.O Kieni East in 2003 and the D.O gave them minutes dated 9th March, 1995 which indicated that the suit property belonged to the appellant.
13.further informed the court that there were various directors of the company before he came into office; that there was no hand over report from the previous directors to the current directors because they came into office through a court order. He produced the court proceedings through which they came to office as Pexbt 6 and certificate of directors as Pexbt 7. He stated that according to the register of the company which is one of the documents served on the company in Nyeri HCC No. 791 of 2004, the appellant had two shares and that the 1st respondent does not appear in that register.
14.The court heard that Jane Wamuyu Macharia is the one who sold the suit property to the 1st respondent but only members of the company were entitled to get plots from the company. He stated that the 1st respondent’s name does not appear in the company’s register as a member. He produced a Register of members as Pexbt 8. (The appellant’s name appears in the Register as No.17 with 2 shares).
15.Like P.W.1, he informed the court that there was a dispute over the suit property which the company needed to arbitrate. He informed the court that the 2nd respondent informed him that he bought the suit property from the 1st respondent and came to his office with documents in support of his ownership of the suit property. These documents included an Identity Card of the 1st respondents, clearance certificate and several receipts and transfer documents signed by the 1st respondent and asked the company to transfer the suit property to the 2nd respondent. He produced a bundle of the documents brought by the 2nd respondent as Pexbt 9(a) including a sale agreement for the suit property and receipts marked PMFI 9(b)-(d).
16.PW2 admitted that no new receipts are issued by the company on transfer; that the company’s policy was to cancel and countersigns the receipts.
17.The Trial court heard that the 2nd respondent had paid Kshs. 3000/= to Amos Kinyua to facilitate transfer of the suit property but observed that the plot number is not cancelled.
18.He informed the court that he wrote the letter dated 25th May, 2007 (Pexbt 10) to the 1st respondent to stop development in the suit property and they agreed to meet for arbitration which never took place; that he received the letter dated 8th June, 2007 (Pexbt 11) from the appellant’s advocate and another dated 10th July, 2007 (Pexbt 12) from the company. He reiterated that the appellant is the rightful owner of the suit property and that Jane Wamuyu Macharia and the 1st respondent do not appear on the register of the company.
19.In cross examination, he stated that he became a director of the company in 2001; that allottees were shown plots at Chaka after paying the given fees; that there was a probe committee set up in 1992 and the D.O Kieni West was the chairman of the probe committee; that the D.O stamped the back side of receipts for plots without dispute but he did not know whether the 1st respondent had her receipts stamped. He reiterated that no handing over took place between the new and the old directors of the company.
20.He admitted that not every shareholder got a plot at Chaka and that clearance certificates were given by previous directors; that an Annual General Meeting (AGM) was called by the new directors and members agreed to reconstruct a new register showing who the original members were; that those members who did not attend the meeting were not placed in the register; that the 2nd respondent presented his documents and lists to him and he observed that the name of Jane Wamuyu in the receipts had been cancelled and replaced with the name of the 1st respondent; that he told the 2nd respondent that the documents were defective and not in accordance with company rules as the plot number had also been cancelled.
21.John Githinji Marete, who was D.O Kieni West from April 2010, informed the court that he had records of 1995 in respect of land disputes. He also had a report of the probe committee over Chaka plots. The court heard that various disputes were settled by the probe committee. The court further heard that the suit property had a dispute and that it was owned by the appellant. His attempt to produce the report of the probe committee dated 9th March, 1995 was successfully objected to by counsel for the respondents because the report was not signed and the witness was not a party to the proceedings.
22.Dominic Gichuru Mangu, told the court that in 1978, the appellant sent him to Chaka to assist her locate her plot. She gave him money to pay for membership and for shares. He paid 90/- and was given a receipt which he took to the appellant. The court heard that one plot was going at 1200/= and that the appellant paid Kshs. 10,000/= for the suit property. He paid on behalf of the appellant and gave her the receipts which had the appellant’s name and the plot number. The appellant was given plot No. 181 (the suit property) and later employed him as caretaker of the plot.
23.Wilson Ndiritu Ngiri, informed the court that he was a director of the company between 1983 and 2001. He stated that the company had many disputes of double allocation from 1994 because the plots were allocated to many people and these disputes were arbitrated by the D.O Mweiga. He produced PMFI 2 as Pexbt 2.
24.The court heard that a receipt was issued for every purchase and upon completion of payment, a clearance certificate was issued. The court further heard that the certificate issued on 10th May, 2001 is in respect of the suit property. It was issued in favour of the respondent who is the owner of the suit property.
25.He stated that he was not aware whether the appellant was issued with a clearance certificate but maintained that there was double allocation of plots but he did not know who made them.
26.He acknowledged that he did not sign the minutes he produced as Pexbt 2. He stated that although the 1st respondent was not at the meeting during the arbitration, her father was present. He informed the court that he was not aware of how DMFI 1 and 2 were issued.
The Defendant’s case.
27.The respondents on their part availed three witness. Peris Wanjiru Wachira (D.W.1), informed the court that she had a plot at Chaka plot No. 181 which she sold to the 2nd respondent.
28.She informed the court that she bought the plot from Jane Wamuyu Macharia who had bought it on ballot from the company herein. Jane Wamuyu gave her receipts for plot No.181dated 2nd June, 1992 which she produced as Dexbt (2).
29.D.W.1 informed the court that the company gave her a clearance certificate which was produced by D.W.3, (a director of the company), as Dexbt 1. D.W.1, produced other receipts given to her by Jane Wamuyu; Receipt for Kshs.40/- dated 3rd August 1978 (Dexbt 1); receipt dated 6th July, 1982 (Dexbt 2), receipt dated 3rd June, 1991 as (Dexbt 4) and receipt dated 4th June, 1991 (Dexbt 3). All these receipts bore plot No.181 and the name of D.W.1.
30.D.W.1 informed the court that she took possession of the suit property in 1992 and developed it by erecting a building thereon in 1995. That after effecting developments in the suit property, she went to Narok where she had a business and thereafter; sold the suit property to the 2nd respondent in 2007 for Kshs. 250,000/-.
31.DW.1 told the court that she was not aware of any arbitration in respect of the suit property and only got to know the appellant when the suit hereto was filed.
32.Upon being cross examined by counsel for the appellant, D.W.1 stated that Dexbt 5 was issued to her by the probe committee after paying Kshs.800/= as survey fees. She informed the court that she did not sign any sale agreement with Jane Wamuyu and could not explain why Dexbt 4 is cancelled and replaced with plot No.181. she explained that all the receipts given to her by Jane Wamuyu bore plot No. 393 but were later cancelled to read 181 and duly stamped by the probe committee. She acknowledged that there was a probe committee that was chaired by the D.O but stated that she didn’t know whether her father James Wachira, participated in the arbitration in relation to the suit property. She denied playing any role in changing the plot number from 393 to 181.
33.D.W.2, Nickson Ndirangu Muchiri, informed the court that he bought the suit property from the 1st respondent;that the 1st respondent had a clearance certificate and receipts from the company for plot number 181 (suit property) duly signed and sealed by Amos Kinyua (D.W.3), who was the Secretary of the company.
34.D.W.2 confirmed D.W.1’s testimony to the effect that the suit property was developed when he bought it and on enquiry, the community informed him that the developments were effected by the 1st respondent. After buying the property, he completed the developments thereon, the 1st respondent having executed a transfer in his favour which he produced as Dexbt 6 and photographs of the developments in the suit property as Dexbt 7(a) to (d).
35.Explaining that he was not aware of any case of double allocation in respect of the suit property, he stated that he did not know the appellant until she filed the case hereto against him.
36.Concerning the appellant’s claim to the suit property, D.W.1 stated that the appellant had no documents capable of proving her ownership. Terming the police abstract produced by the appellant a forgery, D.W.1 observed that it does not contain any plot number.
37.Concerning the appellant’s assertion that she lost her documents, D.W.2 stated that the appellant could easily have gone to the company and obtained duplicate receipts.
38.Explaining that he has suffered loss and damage, D.W.2 urged the trial court to dismiss the appellant’s case.
39.In cross examination, D.W.2 acknowledged that Dexbt 5 had corrections on the face of it-(plot No.393 was cancelled and plot No.181 inserted). The name of Jane Wamuyu Macharia had also been cancelled and replaced with that of the 1st respondent who informed him that the register had been corrected clarifying ownership of the suit property. He acknowledged that the cancellations on the receipts he was given by the 1st respondent are not endorsed except Dexbt 1.
40.Concerning circumstances upon which Plot No. 393 changed to 181, he stated that the company officials, (DW3, the company secretary at the material time), told him that the changes occurred when the company’s land was resurveyed and that he (DW3) had signed the clearance certificate as the secretary of the company (PW3 was introduced to him by the 1st respondent before he bought the suit property and was further confirmed by the community as the secretary of the company). DW3 verified the genuineness of the documents at D.W.3’ office in Nyeri.
41.Concerning the photographs he produced, he stated that he took them through a photographer who also processed the photographs.
42.In re-examination, he stated that he is in possession of plot No.181 and not 393; that the suit herein is in respect of plot No.181 and not 393 and that all receipts handed over to him by the 1st respondent were duly stamped by the company and the D.O which cured the cancellations. Pointing out that the clearance certificate handed over to him by the 2nd respondent is in the name of the company and duly sealed, he maintained that the appellant has no receipts for the suit property or plot No. 393.
43.D.W.3 Amos Kinyua, informed the court that he was the Secretary of the company from 1993 to 2002 and a member of the probe committee for a short while. He stated that the company had seven (7) elected directors. Wilson Ndiritu Ngili who was the Chairman and Stephen Migwi the Treasurer. Terming the clearance certificate held by the respondents genuine, he acknowledged having signed it together with the Chairman and Treasurer. He told the court that a clearance certificate is issued on clearance of payments and that it is a proof of ownership. He confirmed that the 1st respondent had come to their offices together with the receipts for payment before she was issued with the clearance certificate for the suit property (plot No. 181).
44.Explaining that the company kept duplicate copies of the receipts, he confirmed seeing the documents marked for identification as DMFI 1 to 5 before the clearance certificate was issued. He produced the clearance certificate as Dexbt 1 stating that all the receipts were stamped.
45.Explaining that there were cases of double allocation and that such cases were removed from the register, he stated that in performing this exercise, they were assisted by the Provincial Administration and police to rectify the register.
46.Concerning the circumstances upon which plot number 393 was substituted with plot No.181, he stated that plot No. 393 was none existent.
47.Asked what happens if one lost their documents, he stated that one was required to submit a police abstract to the company for replacement of the lost documents then the company would write a letter. In the appellant’s case, she only brought to the company a police abstract.
48.Maintaining that the suit property is owned by the 2nd respondent and not the appellant, he stated that the appellant has no letter from the company. He produced the documents marked for identification as DMFI 1 to 5 as Dexbt 1 to 5 and the transfer letter issued to the 2nd respondent, marked as DMFI 6 as Dexbt 6.
49.In cross examination, he stated that he is aware of Nyeri High Court Civil Case No.79 of 2004. He acknowledged that in that case, he had sued the company and that he had supplied the list of members to the court and that the name of the appellant features in the list as member No.17.
50.Concerning the cancellations in respect of plot No.181 and 393, he stated that he is not the one who cancelled them and did not know who made the cancellations which as per the register are not endorsed. He further stated that he does not know who the owner of plot No.393 is/was and whether plot 393 and 181 had disputes but acknowledged that there were many disputes at the company.
51.In re-examination he stated that Nyeri HCCC No.79 of 2004 does not indicate that the plaintiff owns the suit property. The court heard that the company had a splinter committee which he belonged to in 2007 when he signed documents for the company and that D.W.1 was a member of the probe committee which lasted for three years.
52.Upon considering the evidence adduced before him, the Learned Trial Magistrate observed: -
53.Aggrieved by the said decision, the appellant appealed to this court on the grounds that the Learned Trial Magistrate erred by: -i.Ignoring her evidence and the evidence of her witnesses;ii.Concluding that he did not call a crucial witness by the name Dominic Gicheru yet the said person testified as P.W.4;iii.Treating her evidence in contempt and putting unnecessary weight on the evidence of the respondents and their witnesses when it did not deserve the same;iv.Being biased against her.
54.The appellant urges this court to allow the appeal, order that she is the owner of the suit property and award her the costs of the appeal and of the case before the lower court.
55.Pursuant to directions issued on 25th October 2018, the appeal was disposed of by way of written submissions.
56.In her submissions, the appellant adopted and relied on the submissions filed in the lower court. It is contended that the Learned Trial Magistrate totally ignored the submissions yet they were not challenged by the respondents. It is further contended that the Learned Trial Magistrate did not analyze the evidence tendered by the appellant and her witnesses. Arguing that the appellant’s membership to the company was neither in dispute nor disputed, the appellant states that the probe committee in its meeting of 9th March, 1995 acknowledged that plot No.181 belonged to her.
57.The appellant acknowledges that the committee was to visit the plots in dispute but submits that from the minutes, there were facts that were not in dispute. The facts said to have not been in dispute are that the 1st respondent’s father was not claiming plot 181 but 393; that if the 1st respondent was allocated plot No.181, it was not her wish as it was not hers; that there is no evidence that the appellant was given a chance before she was dispossessed of the plot. It is further submitted that whether or not the probe committee visited the plots, that could not change those facts.
58.The Learned Trial Magistrate is said to have failed to give any reason as to why he could not rely on the evidence of P.W.2, P.W.3 and P.W.4, all of whom said the plot belonged to the appellant.
59.It is acknowledged that P.W.4 was a crucial witness for the appellant as he was the links person between the company and the Provincial Administration and the caretaker of the appellant’s interest in the suit property. He also knew where the property was and reported to the D.O when the 1st respondent’s father cleared it. The Learned Trial Magistrate is faulted for ignoring his evidence.
60.The evidence tendered by the respondents is said to have been inconsistent and contradictory. In that regard, it is pointed out that contrary to her allegation that she bought the suit property from Jane Wamuyu, that issue was not before the probe committee. The evidence before the probe committee was that the plot was given to the 1st respondent.
61.Wondering why the 1st respondent was claiming plot No.181 if the plot she bought was 393, the Learned Trial Magistrate is faulted for having failed to find that Jane Wamuyu was a crucial witness.
62.Claiming that the Learned Trial Magistrate was biased against her, the appellant laments that her evidence of loss of documents was found to be unbelievable.
63.On whether the appellant made efforts to obtain the lost documents, reference is made to the testimony of P.W.2 to the effect that they met a D.O called Mohamed who did not give them the receipts but gave them the minutes dated 9th March1995, and submitted that it is not true that they did not make efforts to get the documents.
64.It is further submitted that the evidence of the appellant was more credible than that of the respondents and their witnesses. The Learned Trial Magistrate is said to have put unnecessary weight on the evidence of the respondents.
65.For the foregoing reasons, the appellant urges this court to allow the appeal, set aside the judgment of the lower court and substitute it with a judgment awarding the appellant the suit property.
66.In their submissions, the respondents have submitted that the appellant failed to discharge the burden imposed on her of proving that she was indeed the owner of the suit property. The respondents, on the other hand, proved that the property belonged to them.
67.On the observation by the court that the appellant failed to call a crucial witness, when the witness had indeed testified as P.W.4, the respondents have urged this court to re-evaluate the testimony of that witness and come up with its own opinion on whether the evidence of that witness would have affected the decision of the Learned Trial Magistrate, if it was considered.
68.It is contended that the evidence of the said witness, P.W.4, does not prove that the appellant was the owner of the suit property. According the appellant, the evidence of P.W.4 merely shows that he was sent to pay for plots. Because of lack of documentary proof of the allegations in the testimony of P.W.4, the evidence of P.W.4 is said to be incapable of adding value to the appellant’s case.
Analysis and determination
69.In discharge of the duty imposed on me as a first appellate court, I have considered the evidence presented before the lower court, re-evaluated it, bearing in mind that I neither saw nor heard the witnesses testify. I have also made allowance for that.
70.With regard to the first ground of appeal, which is that the trial court ignored the appellant’s evidence and that of her witnesses, a review of the judgment of the trial court shows that the Learned Trial Magistrate comprehensively reviewed the evidence of the appellant (P.W.1) and that of William Mwangi Macharia (P.W.2) but did not review and give his opinion about the other witnesses. His failure to consider the testimony of the other witnesses is apparent in his finding that the appellant failed to avail a crucial witness, Dominic Gichuru, yet that person testified as P.W.4.
71.In support of the finding that the Learned Trial Magistrate considered the evidence of the appellant and the evidence of one of his witness, see the judgment, which at the relevant part(s) provides as follows: -
72.The judgment of the trial court at page 7 and 8 shows that the Learned Trial Magistrate considered the appellant’s evidence. In that regard see the following extracts from the judgment: -
73.Having determined that the Learned Trial Magistrate failed to consider the evidence of some of the witnesses availed by the appellant, I will now review that evidence, alongside the evidence tendered by the appellant and P.W.2, with a view of determining whether failure to consider the evidence of the other witnesses affected the decision of the trial court.
74.As pointed out herein above, the appellant availed five witnesses, herself included, in support of her case. The testimonies of the appellant and her witnesses are as captured in paragraphs 9 to 37 herein above.
75.A review of the testimonies of the of P.W.3 and P.W.5 shows that they could not be relied on to advance the appellant’s case. For instance, the evidence of P.W.4, as relates to ownership of the suit property was, on account of the fact that he did not participate in the proceedings of the probe committee hearsay. Considering that the minutes he sought to rely on were not signed, the trial court properly directed itself on the issue of production of those documents.
76.With regard to the testimony of P.W.5, it is clear that it was not in support of the appellant but the respondents.
77.As for the testimony of P.W.3, whilst his evidence as read with other pieces of evidence clearly shows that the appellant was indeed the one who was allocated the suit property, in the absence of any evidence showing that the appellant paid for the property and was, upon completion of the payments issued with a clearance certificate, it cannot reasonably be concluded that the appellant has, on account of the allocation alone, proven that she was the owner of the suit property.
78.It is noteworthy that according to the appellant and P.W.4, the appellant paid Kshs. 10,000/- for two plots. Noting that from the testimony of P.W.1 each plot was going for Kshs. 1,200/=, the appellant and/or her agent (P.W.4) needed to explain why the appellant ended up paying more than the Kshs. 2,400/- payable for the two plots she was allocated. The appellant also failed to explain what happened to the other plot, she allegedly paid for. No evidence, whatsoever, was produced of any claim having been made to the company either by the appellant or her agent, P.W.4, in respect of that other plot.
79.It is noted that the suit property had a dispute way back in 1995. As rightly observed by the Learned Trial Magistrate, the probe committee in its minutes of 9th March,1995 (Pexbt 2) did not conclusively determine the issue of ownership of the suit property. It however, observed that in Mr. Cheres’ List, the suit property belonged to Ann Nyawira Kirugumi (the appellant herein) who had never appeared. The committee decided to visit the plots (181 and 393) for more details.
80.No evidence was given of the minutes of 9th May, 1995. No evidence was given of what Chere’s list was or who Chere was, either. The List referred to in the minutes was also not produced in evidence.
81.In view of the gaps in the evidence, the only reasonable conclusion that can be made from the minutes is that the suit property was subject of a dispute before the probe committee. The property, though indicated as owned by the appellant in the list before the probe committee was being claimed by the 1st respondent. The reason why the 1st respondent claimed the property was that the plot allocated to her, plot number 393, had been given to another person. The 1st respondent, through her father, claimed that she was re-allocated plot number 181 (the suit property).
82.In the absence of any evidence, as to what the decision of the probe committee was concerning the dispute presented before it, and on account of the evidence presented before the court by two officers of the company (P.W.5 and D.W.3) to the effect that the suit property belongs to the 1st respondent, I have no reason to fault the Trial Magistrate for holding the account offered by the respondents more believable than the account offered by appellant.
83.Although the documentary evidence relied on by the respondents appears suspicious, the defect in the evidence was cured by the oral testimony of the officers of the company who confirmed to the court that they signed the ownership documents.
84.In my considered view, in the peculiar circumstances of this case, where officers of the company acknowledged having issued the ownership documents relied on by the 1st respondent in support of her ownership to the property, to succeed in her case against the respondents, the appellant should have pleaded and prosecuted a case of fraud against the 1st respondent and/or the officers of the company. Failure to plead and urge a case of fraud in the acquisition of the suit property compromised the appellant’s case.
85.By operation of law, fraud must be specifically pleaded and proven. In that regard see the case of Kuria Kiarie & 2 others v. Sammy Magera (2018) e KLR where the Court of Appeal stated: -
86.The above conclusion renders the other grounds of appeal otiose.
87.The upshot of the foregoing is that the Appeal is found to be lacking in merits and is dismissed with costs to the respondents.