Mwangi v Mwangi & 9 others (Environment & Land Case 382 of 2017)  KEELC 15553 (KLR) (20 December 2022) (Judgment)
Neutral citation:  KEELC 15553 (KLR)
Republic of Kenya
Environment & Land Case 382 of 2017
LN Gacheru, J
December 20, 2022
Paul Nduati Mwangi
Stephen Ngotho Mwangi
Anne Wanjiru Kariuki (Legal Representative of Lawrence Irungu Mwangi-Deceased)
Ignatius Irungu Mwangi
Alice Kabura Mwangi
Elizabeth Muthoni (Legal Reresentative of Joseph Macharia Mwangi-Deceased)
Miriam Nyambura Mugo (Legal Representative of Thomas Mugo Mwangi- Deceased)
Angelina Wambui Mwangi
Peter N. Gikungu
Grace Njeri Mwangi
Keziah Wairimu Mwangi
1Vide a Plaint dated 4th November 2014, and amended on 18th December 2020, the Plaintiff sought for Judgment against the Defendants jointly and severally for the following Orders:-a.An Order that the Defendants by themselves, their servants, and/or agents be restrained by an Injunction from transferring, charging, and/or in any manner interfering with the ownership of the property which should remain in the name of Mwangi Gikungu.b.A declaration that the Plaintiff is entitled to a one fifth 1/5th share in property L.R. No. LOC. 8/KANDEGENYE/284/1 also known as Plot No. 1 Kahuro Market in place of the Defendants.c.An Order that the name of the Plaintiff be inserted as a co-owner of the whole of L.R. No. LOC. 8/KANDEGENYE/284/1 also known as Plot No. 1 Kahuro Market in place of the 1st and 2nd Defendants and the Defendants be ordered to present the necessary forms for registration to the Land Registrar and the County Government of Murang’a.d.In default of prayer (c) above, the Land Registrar Muranga as well as the County Administrator, County Government of Murang’a be authorized and directed to effect the registration of the Plaintiff and the 3rd to 10 Defendants over the suit land L.R. No. LOC. 8/KANDEGENYE/284/1, also known as Plot No. 1 Kahuro Market in the ration of 1/5th and 4/5th in favour of the Plaintiff and the 3rd to 10th Defendants respectively.e.That the Costs of the suit be awarded to the Plaintifff.Any other relief that the Court may deem fit and just
2It is the Plaintiff’s averment that he is a bonafide purchaser for value of the 1st and 2nd Defendants interests in L.R. No. LOC. 8/KANDEGENYE/284/1, also known as Plot No. 1 Kahuro Market, which is registered in the name of Mwangi Gikungu (Deceased). That through Muranga Succession Cause No. 116 of 2007, the Defendants were granted equal shares of the suit property on 4/10/2010. That by virtual of agreements between the Plaintiff and the 1st and 2nd Defendants respectively, it was their mutual understanding that upon conclusion of Muranga CM. Succ. 116 of 2007, the Defendants would forthwith and promptly transfer the said 2 shares (one each) in the suit property to the Plaintiff, since he had paid them the full purchase price.
3That upon conclusion of the said Succession cause, the 1st and 2nd Defendants have been adamant and reluctant to transfer their portions to the Plaintiff as agreed. That he now seeks an order of Specific Performance against the 1st and 2nd Defendants over the suit property and the combined shares of the 1st and 2nd Defendants amount to 1/5th of L.R. No. LOC. 8/KANDEGENYE/284/1, also known as Plot No. 1 Kahuro Market.
4The Plaintiff’s claim was opposed jointly by the Defendants via an Amended Statement of Defence dated 18th June, 2021. The Defendants denied in total the allegations made by the Plaintiff and put him to strict proof. In addition, it is the Defendants’ averment that L.R. No. LOC. 8/KANDEGENYE/284/1, also known as Plot No. 1 Kahuro Market is registered in the name of all the Defendants jointly and none of the Defendants had sold their share. That the Plaintiff was in possession of the suit property as a tenant. That the alleged sale agreement referred to by the Plaintiff is a nullity as at the time of the said sale, the property was registered in the name of Mwangi Gikungu (deceased) and none of the Defendants had capacity to sell or transact with the suit land without the consent of the other Defendants. That the purported sale agreements between the Plaintiff and the 1st and 2nd Defendants were a forgery scheme by the Plaintiff to defraud the Defendants of the suit property.
5Further that the Plaintiff was a tenant on the suit property and any payment made to any of the Defendants was in furtherance of the said tenancy and not purchase price. That the suit property is registered in the names of the Defendants who are the lawful beneficiaries of Mwangi Gikungu (deceased), and the Plaintiff is not entitled to any share of it. That the suit is filed in bad faith and is ill motived and it should therefore be dismissed entirely.
6The matter proceeded via Viva Voce evidence. The Plaintiff gave evidence for himself and called no witness while the Defendants called three witnesses to support their case.
7PW 1 PAUL NDUATI MWANGI, testified that he knew the Defendants herein. He adopted his Witness Statement dated 4/11/2014, as part of his evidence and produced the documents contained in his list of documents dated 4/11/2014 as P. EXB 1-7.
8On cross examination, he testified that he is a tenant on the suit property and that he had also purchased a share of it. That he used to pay yearly rent of Kshs.30,000/= and that he does not pay that rent now. That he could not recall the last time he had paid rent. That he stopped paying because he once wrote a cheque to the Defendants and they refused to accept it. That he did not recall the date of the said cheque and he had not produced it as an exhibit in Court. That the instant case was for sale of the suit property and not his lease.
9That he purchased a portion of the suit land from Lawrence Irungu Mwangi and Stephen Ngotho Mwangi on 8/5/2004. That at the time of the purchase, the land was not registered in their names, but it was registered in the name of their father who was deceased. That he had been on the suit land since 1986. That at the time of purchase, he did not carry out a search, but he knew the land was registered in the name of the sellers’ father and not the sellers. That in the sale agreement there was a default clause and the liquidated damages payable for default was Kshs. 50,000/= by the defaulting party. That he had not claimed the said Kshs. 50,000/= and he wanted the land through Specific Performance remedy. That as per the sale agreement, the land he bought was to be transferred to him after succession.
10That he had sued the 7th Defendant in her capacity as a beneficiary of the suit land, but he did not know that she was deceased. That he never entered a sale agreement with the 3rd -10th defendants, but he had sued them because they were beneficiaries of the suit land. That he had sued the 1st and 2nd Defendants because they received the purchase price from him.
11DW 1 STEPHEN NGOTHO MWANGI, testified that he knew the Plaintiff herein and that he was a tenant on the suit land. He adopted his amended Witness Statement dated 18/6/2021, as his evidence and produced the documents contained in his list of documents dated 8/11/2016 as Defendants’ exhibit 1.
12On cross examination, he stated that there is a certificate for Confirmation of Grant and the suit property was to be shared equally among the 10 Defendants. That instead of subdividing the property, they registered a partnership called Ignatius Irungu & Partners, and the suit land is to be transferred to the partnership. That the portion bought by the Plaintiff was not separated. That he had seen the alleged sale agreements and his signature and name appeared on both of them. That the purported signatures in the sale agreement were not his, and he had never gone to the police to report the forgery of his signature. That he did not sell any parcel of land to the Plaintiff and that the said Plaintiff was only leasing the land. That the transaction between himself and the Plaintiff was for rent and not a purchase, and he had a witness to that effect.
13DW 2 IGANTIUS IRUNGU MWANGI, testified that he was the 3rd Defendant and he knew the Plaintiff. That he was testifying on his own behalf and on behalf of the other Defendants. He adopted his amended Witness Statement dated 18/6/2021 as his evidence in chief and produced the documents marked DEXB I as his exhibits.
14On cross examination, he testified that all the Defendants were to share the suit property equally. That in respect of the suit property, they registered a Partnership. That he was not party to the sale agreement alleged by the Plaintiff and only learned about it in Court. That he did not know if the agreements were forged or not. That he had not seen the said sale agreements and the 1st Defendant had not complained about his signature being forged on the two sale agreements.
15Further that the Plaintiff is a lessee and not a purchaser. That the Plaintiff started leasing the suit land in 1986. That the agreements in Court are for sale and not leasing. That the Plaintiff was a tenant and he had never sued him for rent and that he did not have a counterclaim against him.
16DW 3 ANNE WANJIRU KARIUKI, testified that the 2nd Defendant was her father and that he was deceased. She adopted her Witness Statement dated 18/6/2021, as part of her evidence and she also confirmed that she would rely on DEXB 1 already produced in Court. She testified that she knew the Plaintiff and that he was a tenant on the suit land.
17On cross examination, she testified that she did not know that her father signed the impugned sale agreements and that no complaint had been lodged for forgery of her father’s signature.
18On 10th May 2022, the Court directed the parties to file and exchange written submissions.
19The Plaintiff filed his written submissions dated 28th June, 2022, through the Law Firm of J.N. Mbuthia & Co Advocates. It is the Plaintiff’s submissions that while it was regrettable that the 1st and 2nd Defendants obtained money from him while they knew that they lacked capacity to sell the suit land or any portion of it, the said 1st and 2nd Defendants should be bound by the terms of the sale agreements that they signed and their share in the suit land should be given to the Plaintiff. He relied on the case of Transmara Sugar Co Ltd and Another vs. Ben Kangwaya Ayiemba & Another (2020) eKLR, where the Court found that not all illegalities vitiate contracts.
20It is the Plaintiff further submissions that even though he was a tenant of the suit land, he was not precluded from buying it whole or in part. That the allegations that the monies he paid to the 1st and 2nd Defendant were his rent arrears was unfounded as they had not claimed any arrears owing from him in their pleadings That all the Defendants were beneficiaries of the suit land and pursuant to a Succession Cause and therefore they were rightfully parties to this suit.
21He urged the Court to allow his claim as prayed since he had proved his case against the Defendants on a balance of probability and to the required standard.
21The Defendants also filed their Written Submissions dated 20th July 2022, through the Law Firm of L.M. Kinuthia & Associates Advocates. The Defendants reiterated their pleadings and statements in Court and raised 3 issues for determination by this Court.
22It is their submissions that the Plaintiff had not shown any cause of action against the 3rd -10th Defendants and therefore the claim against them should be dismissed. That in accordance with Section 45 of the Law of Succession Act, the 1st and 2nd Defendants lacked capacity to transact in the suit land and therefore the sale agreements they executed are null and void abinitio. Reliance was placed on Succession Cause No. 11 of 2009 In the Matter of the Estae of David Julis Nturibi M’Ithinji (deceased) 2012 eKLR, where the Court dealt with the issues of intermeddling and found that it results to wastage of the estate of a deceased person. It was the further submissions of the Defendants that the 1st and 2nd Defendants were intermeddlers and should be treated as such. The Defendants urged this Court to find in their favour and dismiss the Plaintiff’s claim with costs.
23The Court has carefully read and considered the pleadings by the parties, analyzed the evidence adduced, the rival written submissions and the relevant provisions of law and finds that the issues for determination are;
24It is not in doubt that the suit property was initially registered in the name of Mwangi Gikungu (deceased). That the said Mwangi Gikungu died in 1986, and a Succession Cause was filed in the Chief Magistrates Court in Muranga being Succession Cause 116 of 2007. That a Certificate of Confirmation of Grant was issued on 4th October 2010 and the suit land was transmitted to the Defendants herein, each having an equal share. That pursuant to the Confirmation of Grant, the suit land was transferred to the Defendants herein in their capacity as beneficiaries of the late Mwangi Gikungu. Currently the suit property being L.R. No. LOC. 8/KANDEGENYE/284/1, also known as Plot No. 1 Kahuro Market is registered in the name of all the Defendants jointly. It is also not in doubt that the Plaintiff has possession of the suit property as a tenant, which he has been since 1986.
25This Court having outlined the above, will now proceed to analyze and determine the issues identified above.
Whether the Plaintiff’s Claim is merited?
26It is the Plaintiff’s claim that he purchased a portion of the suit land being the entitlement of the 1st and 2nd Defendants herein in L.R. No. LOC. 8/KANDEGENYE/284/1, also known as Plot No. 1 Kahuro Market, pursuant to sale agreements dated 8th May 2004 and 11th June 2007 respectively. That he paid the entire purchase price and the 1st and 2nd Defendants promised to transfer to him their entitlements once the succession for the estate of the late Mwangi Gikungu was completed. That since succession was concluded, the 1st and 2nd Defendants have refused to hold up to their end of the bargain and thus prompting him to approach this Court for a remedy.
27The Defendants on the other hand denied the allegations of the Plaintiff and stated that there was no sale agreement entered concerning the suit land. That even though sale agreements were indeed executed between the Plaintiff and the 1st and 2nd Defendants, the said 1st and 2nd Defendants lacked capacity to enter such an agreement as the suit property at the time was still registered in the name of Mwangi Gikungu (deceased), and was not free property. That the actions of the 1st and 2nd Defendants amounted to intermeddling and the same cannot be endorsed by this Court.
28To address the issue of whether the Claimant’s claim is merited, this Court will first have to determine whether the alleged sale agreement existed, and if it did, whether the same was valid. Section 3(3) of the Law of Contract Act provides;-
30This provision came into force in June 2002, as amended and replaced the previous Section 3 of the Law of Contract Act which had provided as follows:-
31In the case of Patrick Tarzan Matu & Another –vs- Nassim Shariff Abdulla & 2 Others  eKLR Azangalala, J. (as he then was), struck out the Plaintiff’s case where he found that the contract relied upon was in contravention of Section 3(3) of the Law of Contract Act and declined to entertain the claim for damages for breach of the contract. Inter alia he stated:-
32In the case of Silverbird Kenya Limited –vs- Junction Ltd & 3 Others  eKLR, an application had been made by the 1st Defendant to strike out the Plaintiff’s suit on the ground that the lease on which it was anchored had not been signed in contravention of Section 3(3) of the Law of Act. In the suit, the Court stated inter alia:-
33In the present case, the Sale agreement dated 8th May 2004, is in compliance with Section 3 of the Law of Contract Act and is therefore a valid contract to dispose of the interests in land.
34Having determined this, the next issue for determination is whether the parties in the said sale agreement had the capacity to deal with the suit land. A perusal of the sale agreements dated 8th May 2004 and 11th June 2007 show that the Vendors were Stephen Ngotho Mwangi, the 1st Defendant herein and Lawrence Irungu Mwangi, the 2nd Defendant herein. The said agreements also acknowledged that the property being sold belongs to Mwangi Gikungu, who had died in 1986 and that both the Vendors were his sons are beneficiaries of his estate. Both the 1st and 2nd Vendors each sold 1/3rd of the suit land to the Plaintiff herein at Kshs. 45,000/= and Kshs.40,000/= respectively. In addition to the sale price the Purchaser also agreed to be paying an annual amount of Kshs. 3,300/= to Hannah Gichiru until her demise. In the Agreement dated 11th June 2007, both the purchasers confirmed receipt of Kshs. 45,000/= and Kshs. 40,000/= respectively in full payment of the Purchase price as per their earlier agreement dated 8th May 2004. In addition, the said Hannah confirmed that she had been receiving the agreed annual Kshs. 3,300/=.
35It is settled law that the estate of the deceased person is vested in the legal representative; see Kothari-vs-Quaresh (1967)EA 364 and Trouistik Union International and another-s- Jane Mbeyu and another (1993)eKLR. Under Section 3 of the Law of Succession Act (supra), the term “personal representative” means the executor or administrator as the case may be, of a deceased person. Section 2 of the Civil Procedure Act Chapter 21 Laws of Kenya, also defines the term “legal representative”.
36As such, the 1st and 2nd Defendants are not such representatives or persons in respect of the estate of the deceased herein. As indicated herein above the late Mwangi Gikungu died in 1986, and the Administrators of his estate were only appointed in 2007, when a Succession Cause was filed in the Chief Magistrates Court in Muranga being Succession Cause 116 of 2007. The Administrators appointed as evidenced by the Certificate of Confirmation of Grant dated 4th October 2010 were Hannah Gichiru Mwangi, Ignatius Irungu Mwangi and Keziah Irungu Mwangi. It follows therefore that at the time the initial sale agreement was executed the estate of the Late Mwangi Gikungu was yet to be administered and the property was not a free property.
37In this case, the Plaintiff claims to have bought the land from persons who were not registered owners and who did not have the right to sell it in the first place. In addition, the two purported Vendors were not lawful administrators of the said estate and lacked capacity to deal with the suit land in any manner whatsoever and their actions amounted to intermeddling and offended the provisions of section 45 and section 83 of the Law of Succession Act.
38Section 45 of the Law of Succession Act reads as follows:
39The said Section 45 states further that:
40With regard to all the above provisions, it is clear that the 1st and 2nd Defendants were in violation of the law when they dealt with the suit property by selling it to the Plaintiff, while a Succession Cause was yet to be lodged and concluded. The courts have in several instances voided similar sale agreements.
41In CIVIL APPEAL 343 AND 345 OF 2002 AT THE COURT OF APPEAL AT NYERI, JANE GACHOKI GATHECHA V PRISCILLA NYAWIRA GITUNGU & ANOTHER  EKLR, the Court dealt with a situation in which the land of a deceased person was unprocedurally transferred to a third party and the third party thereafter sold to a fourth party. The said fourth party thereafter claimed to be protected under section 93 of the Law of Succession Act. The Court dismissed the claim and in doing so, stated
42At the High Court inCHUKA SUCCESSION CAUSE NO. 560 OF 2015; ESTATE OF M'MUTHAMIA MWENDWA (DECEASED)  EKLR,the Court handled a matter in which the beneficiaries of the deceased’s estate also sold property while they were not administrators. Mabeya J stated;
43In MACHAKOS HCC 256 OF 2007 IN RE ESTATE OF JOHN GAKUNGA NJOROGE (DECEASED)  EKLR, the Court dealt with similar facts in which property was claimed by persons who had bought land from the deceased prior to his death and by persons who had bought land from beneficiaries to the estate of the deceased. Muriithi J stated:
15.For the transactions between the applicants and the beneficiaries of the estate of the deceased entered into before the Grant of Letters of Administration to them and before the Confirmed Grant, the contracts of sale are invalid for offending the provisions of section 45 and 82 of the Law of Succession Act. Even if the sale transactions were by the administrators, the dealings with immovable property of the Estate is restricted by the provisions on the powers and duties of the personal representatives under section 82 (b) Proviso (ii), which provides that:“(ii) no immovable property shall be sold before confirmation of the grant”“7. Recovery of considerationIf any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to section 22.”
44As seen in the above cases, Courts have held that transactions for land conducted prior to Confirmation of a Grant were void ab initio. This Court is well guided and agrees in toto with the above decisions that where a Certificate of Confirmation of Grant has not been issued in respect of the estate of a deceased person, no person, other than Administrators whose rights are limited, has the capacity to deal and or dispose off the property of a deceased person. Therefore, it is evident that the 1st and 2nd Defendants herein lacked capacity to enter a sale agreement with the Plaintiff over the suit land, and that the sale agreements dated 8th May 2004, and the one dated 11th June 2007, were void abinitio.
45This Court cannot therefore effect the said sale agreements, as doing so would amount to permitting an illegality and would fly in the face of Section 45 of the Law of Succession Act. In the case of re Estate of Paul Maria (deceased)  eKLR; J Gikonyo observed thus:
46The duty of this Court is to do justice and even after reaching the conclusion above, it is not blind to the fact that the Plaintiff had paid monies to the 1st and 2nd Defendants pursuant to the sale agreement dated 8th May 2004. DW 1 in his testimony before this Court denied having executed the sale agreement and alleged that his signature as seen on the said sale agreement and on subsequent agreements was forged by the Plaintiff. This Court however notes that while the 1st Defendant alleged forgery, he failed to substantiate the said claim with evidence as required by Section 109 of the Law of Evidence Act Cap 80. This Court is therefore inclined, based on the evidence placed before it, to believe the testimony of the Plaintiff that indeed there was a sale agreement entered between himself and the 1st and 2nd Defendants. That pursuant to the execution of the said sale agreements, the Plaintiff paid monies to the said Defendants. Since this Court has herein above invalidated the Sale agreements between the Plaintiff and the 1st and 2nd Defendant, the Plaintiff is therefore eligible to pursue the 1st and 2nd Defendant for a refund of the Purchase Price and any damages he may have suffered as a result of the said transaction.
(ii) Who should pay costs of this suit?
47Although costs of an action are at the discretion of the court, the general rule is that costs shall follow the event. (See section 27 of the Civil Procedure Act (Cap 21)). Consequently, a successful litigant should normally be awarded costs of an action unless, for good reason, the Court directs otherwise. See Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd  EA 287.
48The Court herein is aware that the Plaintiff herein is the losing party but the said loss was not of his doing alone. The Court is therefore of the view that the appropriate order to make is for each party to bear his own costs.
49The Upshot of the foregoing is that the Plaintiff has failed to prove his case against the Defendants herein jointly and severally on the required standard of balance of probability. For the above reasons, the Plaintiff’s claim stated in the amended Plaint dated 18th December, 2020 is found devoid of any merit and the same is dismissed entirely with an order that each party to bear its own costs.
50It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANGA THIS 20TH DAY OF DECEMBER, 2022.L. GACHERUJUDGEDelivered virtually;In the presence ofMr. Mbuthia for the PlaintiffMr. L. M. Kinuthia for the 1st – 10th DefendantsJoel Njonjo – Court AssistantL. GACHERUJUDGE