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Gachui (Suing in her capacity as executrix of the estate of James Mungai Gachui – Deceased) & another v Ouko & 2 others (Environment and Land Case Civil Suit 330 of 2011) [2023] KEELC 18034 (KLR) (14 June 2023) (Judgment)
Neutral citation:
[2023] KEELC 18034 (KLR)
Republic of Kenya
Environment and Land Case Civil Suit 330 of 2011
LN Mbugua, J
June 14, 2023
Between
Anne Pearl Karimi Gachui (Suing in her capacity as executrix of the estate of James Mungai Gachui – Deceased)
1st Plaintiff
James Mungai Gachui (Deceased
2nd Plaintiff
and
Aaron Ouko
1st Defendant
Rosaliyn Dola Ouko
2nd Defendant
Andrew Atinda Ouko
3rd Defendant
Judgment
1.Judgement was entered in this matter on 13.10.2022. Subsequently, the Plaintiff filed the instant application dated 18.1.2023 seeking the following orders;
2.The application is based on grounds on its face and on the Plaintiff’s supporting affidavit sworn on 18.1.2023. She avers that by the amended plaint of 5.11.2019, she sought an order of specific performance over the portion of land identified as LR No. 3589/6 (G), the suit property. In its judgement, the court granted the prayer and directed the Respondents to “issue a title to the Plaintiff in respect of a portion identified as LR No. 3589/6 (G) measuring 2 1/2 acres.
3.She points out that she pleaded at paragraph 7 of her amended plaint that the suit property was purchased through 2 agreements of sale dated 18.8.1979 and 31.7.1980 and the total acreage is captured in the approved subdivision of LR No. 3589/6 as 2.0 Hectares and confirmed in PW1’s letter dated 30.9.2002 which notes that the property “measures 2.0 hectares (4.942 ) acres.
4.She avers that the acreage in the judgement is incorrect as appears from the pleadings and evidence and believes that the reference of 21/2 acres in the judgment and decree is an inadvertent error apparent on the face of the record and she will suffer loss of half of her property despite this court having found that she is entitled to the entire suit property.
5.The Plaintiff’s written submissions are dated 2.5.2023. She cites the case of National Bank of Kenya Limited v Ndungu Njau (Civil Appeal No. 211 of 1996) and the case of Nyamogo and Nyamogo v Kogo [2002] 1EA, to submit that this court should grant a review on the basis of an error apparent on the record being that she sought an order of specific performance over the portion of land identified as LR No. 3589/6 (G) yet the court only granted a portion thereof, being 21/2 acres.
6.She argues that the finding that the suit property measures 2½ acres is incorrect and therefore an inadvertent error apparent on the face of the record and it doesn’t require the production of additional evidence for the court to correct the same.
7.In their submissions dated 19.3.2023, the Respondents contend that they are relying on a Replying Affidavit sworn on 17.3.2023 by the 1st respondent. Further on 19.4.2023, M/s Lukoye for the defendant had informed the court that their replying affidavit is dated 17.3.2023. However, the said document is neither in the court’s physical file nor on the online filing system (CTS). In that regard, the submissions of the respondents are not anchored on any foundational pleading and are therefore disregarded; See Gideon Sitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others [2018] eKLR.
8.The issue falling for determination is whether there was an error apparent on the face of the record in the judgment delivered on 13.10.2022 to warrant a review thereof.
9.The provisions of Section 80 of the Civil Procedure Act (Cap.21) Laws of Kenya stipulates that:
10.While the provisions of Order 45 of the Civil Procedure Rules provides as follows:
11.Thus courts have discretion to allow a prayer for review within the set down legal framework. This principle was reiterated in Menginya Salim Murgani v Kenya Revenue Authority [2014] eKLR, where the court held,
12.Courts have established that where a review is based on an error apparent on the face of the record, the error must be self-evident. In National Bank of Kenya Limited v Ndungu Njau (1997) eKLR the Court stated that;
13.The Plaintiff seeks review on ground that the court committed an inadvertent error on the face of the record by awarding her 21/2 acres of LR No. 3589/6 G instead of 4.9 acres. The question this court is called upon to determine is whether awarding the Plaintiff 21/2 acres was indeed an inadvertent error on the face of the record.
14.Paragraph 7 of the plaintiff’s amended plaint does not capture the purported acreage of 4.9 acres. Equally, the final prayers sought in the amended plaint do not make reference to the acreage of the suit property. For the two sale agreements dated 18.8.1979 and that of 31.7.1980, the earlier one makes reference to the purchase of 21/2 acres, while the latter only identified the plot as “G”.
15.Nevertheless, I find that the actual identification of the acreage can be discerned from subdivision scheme plan which is the document availed as “FWKC” in the Affidavit of PW1 dated 30.9.2019 which shows the acreage of the plot of Gachui as 2.029 ha. To this end I find that the prayer for review is merited as the aforementioned acreage is equivalent to 5 acres or thereabout.
16.The application dated 18.1.2023 is hereby allowed. Each party is to bear their own costs of the application. The judgement delivered on 13.10.2022 is to be amended according to capture the changes at paragraph 43 of the judgment.Dated, Signed And Delivered At Nairobi This 14Th Day Of June, 2023 Through Microsoft Teams.Lucy N. MbuguaJudgeIn the presence of:-Kahura for Plaintiff/ApplicantNg’eno holding brief for Lukoye for Defendant RespondentCourt clerk: KajujuRepublic Of KenyaIn The Environment And Land Court At NairobiElc Civil Case No. 330 Of 2011Anne Pearl Karimi Gachui(suing In Her Capacity As Executrix Of The Estate Of James Mungai Gachui – Deceased)............plaintiffVersusAaron Tafari Ouko ...........1St DefendantRosaliyn Dola Ouko...........2nd DefendantAndrew Atinda Ouko...........3rd DefendantAmended Judgment(Pursuant to the Ruling Delivered on 14.6.2023)
1.At the heart of the dispute is a parcel of land L.R. No. 3589 /6 measuring 87.5 acres or there about registered in the name of one JASON ATINDA OUKO (hearing after – the vendor) who died on 2.2.1996. The land is situated in Nairobi Langata / Karen area. The plaintiff claims that her husband, one JAMES MUNGAI GACHUI had bought a portion of the suit land (L.R. 3589/6 G) way back in 1980 from one Simon Njenga who in turn had bought the land from the vendor. The plaintiff avers that the process of subdivision of the land was commenced but not completed. That some time in year 2011, the defendants threatened to evict her prompting her to file this case.
2.Vide a plaint dated 6.7.2011 and amended on 5.11.2019, the plaintiff is seeking the following orders:
3.The defendants filed a statement of defence, dated 30.11.2011 and amended on 25.11.2019 where they have identified themselves as the administrators of the estate of Jason Atinda Ouko being sons and the window of the deceased. They contend that the purported plot No 3589/6 G allegedly hived from L.R. 3589/6 doesn’t exist as the latter parcel has never been subdivided and is still in the name of Jason Atinda.
4.The defendants further denied that Jason Atinda ever sold the land to one Simon Njenga, thus the later did not have any proprietary rights in the suit property capable of being transferred to the plaintiff, hence the plaintiff is a trespasser. The defendants term the claim of the plaintiff as frivolous vexations and an abuse of the court process hence the same should be dismissed.
5.During the trial, the plaintiff Anne Pearl Karimi Gachui testified as PW2. She adopted her statement dated 5.7.2011 as her evidence. She also produced the documents in the bundles dated 6.7.2011, 8.11.2019 and 4.5.2022 as her exhibits. Her evidence is that her husband purchased the suit plot L.R 3589/6 (G) from one Simon Njenga Onesmus vide a sale agreement of 18.8.1979 and 31.7.1980. Simon Njenga had in turn bought the said plot from the vendor (Jason). That Simon Njenga had duly informed the vendor (Jason) and his advocates that he had sold his plot to James Mungai. In the circumstances, Jason Atinda had in turn recognized James Mungai Gachui as the owner of that land.
6.The plaintiff avers that her late husband actively pursued the issuance of a title from the vendor (Jason) and his advocates such that in 1995, her husband attended a meeting with other purchasers where it emerged that the vendor Jason had failed to comply with the conditions imposed by the city council in relation to the subdivision of the land.
7.PW1 further stated that on or about 26th and 29th June 2011, the defendants threatened to evict her and her neighbours.
8.During cross examination PW2 stated that she had nothing to show that the big parcel of land was subdivided and that her husband bought the land from Simon when it was still not subdivided. PW2 has no document, showing how her husband paid for the land to Simon.
9.PW1, one Fackson Wainaina Kagwe adopted his affidavit dated 30.9.2019 and the annexures thereof as his evidence. He avers that he is an advocate of the High Court of Kenya. That Jason the vendor, who was the registered owner of the large parcel 3589/6 had appointed him to act for him in the conveyancing transactions of the suit property. The vendor had furnished him with a list of buyers who included one Gachui who is listed as No. 29. He contends that there was a subdivision plan. There was also a meeting of all purchasers on 25.11.1995 and Gachui was present though he later died.
10.During cross examination PW1 reiterated that he was the conveyancing lawyer for Jason (vendor), but payments for the suit plot were not done through him. He avers that when his client passed on, he ceased to act for him.
11.The defence case was advanced by Aaron Tafari Ouko who testified as DW1. He adopted his statement dated 15.12.2011 as his evidence. He also produced the documents in his bundle dated 15.12.2011 as his exhibits. He avers that the suit land measuring about 87 acres located in Karen – Langata parcel No. L.R. 3589/6 is registered in the name of his late father Jason Atinda Ouko. He contends that Simon Njenga who allegedly sold a portion of the land to plaintiff’s husband was unknown to their father, and that the suit land was never subdivided. He contends that Simon Njenga had no right to sell the land to anyone hence the alleged sale was illegal. DW1 terms the plaintiff as a trespasser.
12.In her submissions dated 3.6.2022, the plaintiff avers that Simon Njenga had indeed purchased the suit plot as is evidenced from the letter of 27.11.1980 (page 14 in bundle of 6.7.2011) in which Gachui’s advocates were writing to vendor’s (Jason) advocate (Daly & Figs) informing them that Simon had sold his plot to Gachui. And in the letter next dated 2.12.1980, Simon’s Lawyers (Machira & Co) also wrote to Daly & Figs to confirm the same.
13.It was submitted that the two sale agreements availed by the plaintiff confirm that Simon Njenga had sold his plot to Gachui which was 21/2 acres.
14.It was also submitted that Simon Njenga had become the beneficial owner of the suit property hence he could dispose off the same. On this point, the plaintiff cited Halsbury’s Laws of England (4th edition) Vol 42 at paragraph 177 where it is stated that:It was further submitted that the above mentioned rule is also espoused in Megarry & Wade’s ‘Law of Real Property’ as follows:
15.The plaintiff avers that there has been previous litigation in relation to the suit land where it emerges that the subdivision of the land had commenced and the scheme plan was approved way back on 26.5.1992.
16.In support of her case, the plaintiff relied on several authorities in which the same large parcel of land L.R.No.3589/6 was the subject matter. That in “Nairobi HCCC 673 of 1985 Joseph Kamau Ngiria v Martin T. Waithaka (cited in Joseph Kamau Ngiria vs. Roselyn Dola Ouko & 2 Others (2019) eKLR, the case concerned a different plot in the same land LR 3589/6, where Ouko offered to sell to Martin Waithaka 2½ acres at Kshs. 500,000/=. The plaintiff lent Waithaka Ksh. 100,000/= to enable Waithaka pay Ouko part of the purchase price. Waithaka then sold to the plaintiff one acre and the plaintiff moved in and built a house on the one acre and started living there. The Court found that the sale of the one acre was a legitimate sale.”
17.Another case cited is that of “Rose Waruinu Muthemba v Rosalyna Dola Ouko & 2 others [2020] eKLR. That this case also related to the sub-divisions sold by Ouko. As in the present case, the Defendants therein denied that Ouko had sold land to the Plaintiff. That in allowing the Plaintiffs to claim a portion of the property, the Court stated that;
18.Another case cited by the plaintiff is ELC No. 493 of 2011 (O.S), where the Environment and Land Court by its judgment and decree ordered the administrators of Ouko’s estate, the Defendants herein, to complete the sub-division as per the sub-division scheme prepared by Ouko and issue individual titles.
19.In their submissions dated 24.6.2022, the defendants have reiterated that one Saimon Njenga had no mandate to sell the suit land citing the principle “nemo dat quod non habet” which means that, one cannot give what he does not have. To this end, the defendants cited the case of Daniel Kiprugut Maiywa v Rebecca Chepkurgat Maina [2019] eKLR where the court opined thus:
20.It was further submitted that plaintiff has not adduced any evidence to show that she is a bonafide purchaser for value and there is no evidence adduced to show that any payments were ever made and that no valid contract existed between Samuel Njenga and James Gachui and the agreements availed by the plaintiff have not been corroborated.
21.It was therefore submitted that the relief on specific performance is not available to the plaintiff and on this point, reference was made to Reliable Electrical Engineers Ltd Vs Mantrac Kenya Limited [2006] eKLR, wherein Justice Maraga (as he then was) stated that:-
22.It was submitted that plaintiff’s illegal occupation of the parcel of land in dispute has now come to an end as plaintiff has no valid claim over the suit property hence the suit should be dismissed with costs.
Determination.
23.There is no controversy that the large parcel No LR 3589/6 measuring about 87.5 acres is registered in name of Jason Atinda Ouko who is deceased. It is also not disputed that plaintiff is the legal representative of one James Mungai Gachui, while defendants are the legal representatives of Jason Atinda Ouko. It is also quite apparent that plaintiff is in occupation of the suit parcel which is a portion of the larger parcel 3589/6.
24.The issues falling for determination are whether one Saimon Njenga had any rights and or interests in the suit land capable of being alienated and whether the plaintiff is entitled to the prayers sought in the amended plaint.
25.Vide the sale agreements dated 18.8.1979 and 31.7.1980 Simon Njenga Onesmus was selling plot G which was 2½ acres of LR 3589/6 of which Machira & Co. were the advocates for Simon while D. Karanja Advocate was acting for James Mungai Gachui. Certainly, the land did not belong to Samuel Njenga. However, out of that transaction the plaintiff settled on the said land in 1980. It is worthy to note that Jason Atinda Ouko passed on 16 years later on 2.2.1996.
26.The correspondences availed by the plaintiff in her bundle of 8.11.2019 at page 17 indicates that D. Karanja advocates duly informed Daly & Figs, advocates for Jason that Saimon Njenga had sold his plot to James Gachuhi. The letter is dated 27.11.1980. Soon thereafter on 2.12.1980, Machira & Co, advocate for Saimon also wrote to Daly and Figs (page 18 of same bundle) confirming that indeed their client Saimon Njenga had sold his plot to James M. Gachui stating “our client has since then been granted vacant possession.”
27.DW1 did not outrightly deny that his father’s advocates were Daly & Figs and was rather evasive on this issue, simply stating that: “for the correspondence touching on Daly & Figs, I had seen them in other matters”. DW1 has not proffered any evidence to counter the documents appertaining to the sale of the plot by Saimon to James.
28.In the case of Peter Nyaga Kairu v Esther Wanjiku Njau & 5 others [2019] eKLR, I stated that;
29.Jason did not interfere with the plaintiff’s occupation of the suit land during his lifetime and therefore, the above quoted latin maxim is applicable herein. It is therefore apparent that the plaintiff’s occupation on the suit land is derived from the interest passed onto her husband by one Saimon Njenga. Thus Saimon Njenga had a beneficial interest in the suit plot and he duly informed the vendor (Jason) about his transfer of that interest to Gachui.
30.On whether the prayers sought by the plaintiff are merited. I find that defendants’ seem to derive comfort in the fact that the entire land is still intact in terms of registration and subdivision. However, DW1 did admit during cross examination that he was aware that his father had sold the land. He also stated that his father had started the process of subdivision but he doesn’t know when this occurred, though he eventually owned up to being aware of the subdivision scheme plan which is annexed to the letter on page 27 in plaintiffs bundle of 6.7.2011.
31.It turns out that the approval of the subdivision of the big land was given on 5.2.2002, and a subdivision certificate was given on 25.1.2006.
32.In the case of John Mark Wandolo v Paul Nganga Nage [2020] eKLR, the court cited, Homes Ltd vs Kays Investment Ltd [2015] eKLR where the court quoted the following;
33.In the case of Macharia Mwangi Maina & 87 others v. Davidson Mwangi Kagiri [2014] eKLR, the court was dealing with a case whereby the respondent owned 256 acres of land which he sold to the appellants using a proposed map containing 240 plots of one acre each and appellants went ahead to take vacant possession. Years later, the respondent reneged and or refused to transfer the individual plots to the appellants. The Court of Appeal while delivering a judgment in favour of the purchasers/occupants (the Appellants) of the plots cited Lord Reid in Steadman –vs- Steadman [1976] Ac 536, 540 as follows:
34.In the instant case, there is no evidence that Jason made any demand of any payments from Saimon or James during his lifetime yet plaintiff settled on that land in 1980’s. It is apparent that the process of issuance of titles stalled for one reason or another, such that by 1995, the vendor Jason had not compiled with the intricacies of subdivision of the large parcel. And by the time the approvals for subdivision were given in year 2002, Jason was no more and there was no legal administrator of his estate, seeing that the limited grant was only issued on 22.5.2006.
35.What emerges from the foregoing analysis is that the only issue that has been pending in respect of plaintiff’s plot is the legal process of hiving off the portion known as plot G from the mother title in so far as this dispute in concerned.
36.The court takes judicial notice of the numerous litigation touching on the suit property. The actual avalanche appears to have taken shape in 2011 after the defendant issued a letter dated 24/11/2010 (page 32 in plaintiffs bundle of 6.7 2011) headed “NOTICE TO ALL PURCHASERS OF L.R NO 3589/6).
37.In one such case, Hellen Wanjiru Mwangi v Administrators to the Estate of Jason Atinda Ouko [2020] eKLR, the court had noted that the only process remaining was that of registration, and thus declared that the “ Defendant Estate is liable to complete the sale and purchase transaction to the Plaintiff herein by obtaining registration of the Plaintiff as the registered proprietor of LR NO. 3589/45.”. In the said case the court cited the case of Gurdev Singh Birdi & Another vs Abubakar Madhbuti [1996] eKLR where the court stated as follows:
38.In another case ELC 493 of 2011 (OS) Karen Kwamboka Okari vs. Roselyn Dola Ouko & 2 others the court gave orders that:
39.DW1 admitted to being aware of the decree in the above mentioned case but averred that they had not fully complied with the judgment due to financial constraints.
40.What is clear is that courts have already made pronouncements to the effect that the large parcel No. L.R. 3598/6 should be subdivided to give rise to individual titles.
41.It is not lost to this court that though the defendants are well aware that the plaintiff has been on the suit land for a long period of time, they have not made any counterclaim in their pleadings to assert their claim on the land.
42.The end result is that plaintiff’s claim is merited. However, I will desist from granting any general damages for trespass seeing that there is no evidence that defendants had carried out their threats to evict the plaintiff.
43.FINAL ORDERS; The plaintiff’s claim is allowed in the following terms;
I.An order is hereby issued compelling the Defendants to complete the sub-division of L.R No 3589/6 and issue a title to the Plaintiff in respect of a portion identified as L.R 3589/6 (G) measuring 212acres.4.942 acres.
II.A permanent injunction is hereby issued against the Defendants, their servants and or their agents or anyone acting on their behalf or behest from entering or in any other manner whatsoever interfering with the Plaintiff’s right of occupation and quiet possession of parcel L.R. No. 3589/6 (G).
III.The defendants are condemned to meet the costs of the suit.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 13TH DAY OF OCTOBER, 2022 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Gachuhi for the plaintiffOnyango for defendantsCourt assistant: Eddel/JoanAMENDED AND SIGNED AT NAIROBI THIS 14TH DAY OF JUNE 2023LUCY N. MBUGUAJUDGE
