Ndiangui v Ndiangui (Environment and Land Appeal E010 of 2021)  KEELC 15276 (KLR) (9 December 2022) (Judgment)
Neutral citation:  KEELC 15276 (KLR)
Republic of Kenya
Environment and Land Appeal E010 of 2021
JO Olola, J
December 9, 2022
Cyrus Ndung’u Ndiangui alias Ndung’u Ndiangui
Charles Macharia Ndiangui
1.This is an Appeal arising from the Judgment and Decree emanating from the decision of the Honourable M. Okuche, Principal Magistrate as delivered on 9th March, 2021 in Nyeri MCELC No. 43 of 2020 (OS).
2.By an Originating Summons dated 1st September, 2020 as filed in the Trial Court, Charles Macharia Ndiangui (the Respondent herein) had sought orders against Cyrus Ndungu Ndiangui alias Ndungu Ndiangui (the Appellant herein) as follows:
3.Those prayers by the Respondents herein were premised on the grounds inter alia that:
4.In response to the Originating Summons, the Appellant herein filed a Replying Affidavit sworn on 22nd September, 2020 wherein he told the court that he was the absolute registered proprietor of L.R No. Thegenge/Karangia 540 and 541. It was the Appellant’s case that his registration as the proprietor of the two parcels of land was done in accordance with the law and that there were no trusts held on behalf of the Respondent.
5.The Appellant averred that the Respondent’s mother Grace Njeri Ndiangui was lawfully given her share by the Appellant’s deceased father and that the Respondent and his siblings should look for their inheritance from the mother. The Appellant further told the Court that there was no way he could have been registered to hold land in trust for the Respondent as the Respondent was an adult male during the said registration.
6.The Appellant further avers that it has been 39 years since he took continuous and uninterrupted possession of the said parcels of land and that the Respondent never petitioned for his alleged share of the land from his father who passed on in October, 1989.
7.Having heard the suit and in his Judgment delivered as aforesaid on 9th March 2021, the Learned Trial Magistrate found and determined that the Appellant held the suit properties in trust for the Respondent and granted the prayers sought in the Originating Summons with costs.
8.Aggrieved by the said determination, the Appellant lodged an 8-point Memorandum of Appeal herein dated 2nd March, 2021 seeking to have the Judgement and decree set aside on the grounds that:
9.This being the first appellate Court, this Court is mandated to re-evaluate the evidence before the trial Court as well as the Judgment and to arrive at its own independent Judgment on whether or not to allow the Appeal.
10.From a perusal of the record, the Respondent as the Plaintiff in the Trial Court had pleaded that the Appellant herein (as the Defendant) was a brother to his mother one Grace Njeri Ndiangui who is now deceased and that the suit properties were registered in the name of the Appellant in trust for the Respondent. It was the Respondent’s case that the suit properties were the result of the sub-division of L.R No. Thegenge/Karangia/260 which parcel of land was hitherto registered in the name of the Appellant’s father – Peter Ndiangui Githongo.
11.The Respondent told the Court that on 17th August 1980, his grandfather the said Peter Ndiangui Githongo had bequeathed to him (the Respondent) the said L.R No. Thegenge/Karangia/260 as a trustee to hold for himself and the house of his mother the said Grace Njeri Ndiangui. It was his case that his grandfather had two wives and that he had by a deed of gift dated 17th August, 1980 bequeathed to his two houses as represented by the wives his four parcels of land as follows:
12.The Respondent further told the Court the property known as L.R No. Thegenge/Karangia/260 was, at the instance of the Appellant transferred to himself (the Appellant) and were sub-divided into three portions, against the pleaded and established trust, as follows:
13.In support of his position, the Respondent produced before the Trial Court a document said to be a deed of gift dated 17th August, 1980 by virtue of which the Appellant’s father was said to have distributed his four parcels of land to his two wives – Warukira and Wanjiku. In addition, the Respondent produced various certificates of official search to demonstrate how the three sub-divisions were subsequently registered – one in the name of his mother and the other two in the name of his uncle (the Appellant).
14.Having heard the dispute the Learned Trial Magistrate proceeded to frame six (6) issues for determination as follows:
15.Having so framed the issues, the Learned Trial Magistrate proceeded to deliver himself at Pages 10 to 12 of the impugned Judgment as follows:
16.As it were, it is settled that the onus lies on a Party alleging the existence of a trust to prove it through evidence. This is because the law never implies and the Court never presumes a trust but in the case of absolute necessity. A Court of law will not imply a trust save in order to give effect to the intention of the Parties. Such intention of the Parties to create a trust must therefore clearly be determined before a trust is implied (see Peter Ndung’u Njenga -vs- Sophia Watiri Ndungu (2000) eKLR).
17.In the matter herein, the Respondent placed great reliance on a document described as a deed of gift said to have been made by the Appellant’s father on 17th August, 1980. A translation of the document originally prepared in Kikuyu language and headed “Distribution of Land” appears at Page 27 of the Record of Appeal. I have looked at the same. While the document refers to four parcels of land, it neither refers to the parcels of land by their registration numbers as referred to herein in court nor does it specify which of the four properties were given to any of the parties herein.
18.While the Learned Trial Magistrate made a finding that the document was authentic, I was unable to find the basis for such a finding. That document was neither executed by the alleged maker nor by the witnesses whose names are listed therein. Given the Appellant’s challenge as to the authenticity of the document, it was incumbent upon the Respondent to provide a basis for the same and the conclusion by the Trial Magistrate that it was the Appellant to prove that the document was a forgery was in my view erroneous.
19.As it were, it was not disputed that the Appellant’s father lived for another 9 years after the alleged distribution before he passed away in 1989. According to the Respondent, the original title No. Thegenge/Karangia/260 was transferred and sub-divided into three portions at the instance of the Appellant who then caused one portion to be registered in the Respondent’s mother’s name while taking up the other two portions. In support of that contention, the Respondent produced Certificates of Official Searches for the respective parcels of land.
20.A perusal of the Green Card produced by the Respondent himself (page 12 of the record) reveals that the title for the said parcel number Thegenge/Karangia/260 was cancelled on 23rd December, 1981 on sub-division and that the resultant parcels were the said Parcel Nos. 539, 540 and 541. These sub-divisions therefore occurred during the lifetime of the Respondent’s grandfather and from his testimony in court, he was aware of the Appellant’s registration to the portions Nos. 540 and 541 from that point in time.
21.The question then that begs the answer is, if indeed the Respondent’s grandfather had bequeathed the Respondent the said parcel of land in 1980, why didn’t the Respondent complain to his grandfather to reverse the same and/or take any steps to wrest control of the same from the Appellant.
22.The only answer I have to that question is that it was the Respondent’s grandfather Peter Ndiangui Githongo who during his lifetime sub-divided the said parcel of land No. Thegenge/Karangia/260 into the three portions being Thegenge/Karangia/539, 540 and 541. For whatever reason it was, the old man gave his daughter Grace Njeri Ndiangui (the Respondent’s mother) parcel No. 539 while the other two were given to the Appellant.
29.There was absolutely no evidence placed before the Court from which an inference would be made that the parcel Nos. 540 and 541 were registered in the Appellant’s name in trust for the Respondent. The Respondent did not deny that at the time of registration, he was an adult and that if his grandfather had wanted to, he would have caused either of the two parcels to be registered directly in his name or in the name of his mother Grace Njeri Ndiangui to hold the same in trust for himself.
30.From a perusal of the proceedings, the claim based on customary trust was far-fetched and clearly an afterthought. While the Respondent purported that he learnt of the Appellant’s occupation of the suit land around 1980 when he went to the land and found that the Appellant had sub-divided the same, he did not tell the Court why he did not take any action against the Appellant. He chose to wait another 40 years until the year 2020 to lodge this claim. His suit was stale and time-barred under Section 7 of the Limitations of Actions Act and was indeed dead on arrival.
31.It follows that I am in agreement with the Appellant that the Learned Trial Magistrate misdirected himself and hence arrived at the wrong conclusion that the two parcels of land were registered in the name of the Appellant in trust and for the benefit of the Respondent.
32.Accordingly I hereby allow the Appeal, set aside the Judgment of the Learned Trial Magistrate dated 9th March, 2021 and substitute therefore an order dismissing the Respondent’s (Plaintiff’s) suit with costs to the Appellant (Defendant).
33.The Appellant shall also have the costs of this Appeal.
JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 9TH DAY OF DECEMBER, 2022.In the presence of:Ms Wambui Mwai for the AppellantMrs Magua holding brief for Magua for the RespondentCourt assistant - KendiJ. O. OLOLAJUDGE