1.This is an Appeal arising from the Judgment of the Honourable M. N. Munyendo, Senior Resident Magistrate as delivered on 17th May, 2019 in Othaya SRMCC No. 13 of 2018.
2.By the Plaint dated and filed in the Lower Court on 23rd February 2018, Jedidah Wangechi Wachira (the Respondent herein) and two others had sued the Trustees AIC Mahiga Children’s Home (the Appellant herein) and two others for orders as follows:
3.Those prayers arose from the Respondent’s contention that they were the registered joint owners of L.R No. Mahiga/Kamoko/1310 and that the Appellants were squatters on a neighbouring public parcel of land known as L.R No. Mahiga/Kamoko/1309 wherein they run a children’s home known as AIC Mahiga Children’s Home.
4.It was the Respondent’s case that on or about 8th February 2018, the Appellants without any colour of right had trespassed into their portion of land and begun wanton acts of destruction by bringing down a barbed wire and chain link fence together with the posts attached thereto. The Respondents asserted that the said entry into their land by the Appellants was illegal, unlawful and in utter violation of their proprietary rights and hence the orders sought in their Plaint.
5.But in its Statement of Defence and Counterclaim dated and filed in Court on 16th March 2018, the Appellant denied that the Respondents were the owners of the parcel of land known as Mahiga/Kamoko/1310. On the contrary, the Appellant asserted that it was the rightful owner of the said parcel of land.
6.The Appellant further denied that it was a squatter on the parcel of land known as Mahiga/Kamoko/1309 and asserted that it was the rightful owner of the same and that it had been in occupation thereof since 1985 and had established a children’s Home thereon.
7.By way of its Counterclaim, the Appellant asserted that it had purchased L.R No. Mahiga/Kamoko/1310 from one Kiiru Gichohi in 1985 and had been in occupation thereof ever since. The Appellant further asserted that sometime in 2017 while it was still waiting for registration and issuance of a title deed for the suit property, it came to learn that the Respondents had illegally, maliciously and fraudulently colluded to have the property registered in their names as joint proprietors.
8.Accordingly, the Appellant sought for Judgment against the Respondents as follows:
9.The 2nd and 3rd Defendants in the trial before the Lower Court filed a joint Statement of Defence. It was their case that they do not claim ownership of the suit property which they have always believed belongs to the Appellant herein. They expressed their willingness and sought a Court order to facilitate the removal of the structures belonging to Kiriti Nursery School which are on the suit property. They urged the Court to dismiss the Respondents suit with costs.
10.Having heard the dispute and in her Judgment dated 17th May, 2019 aforesaid, the Learned Trial Magistrate did find that the Respondents had proved their case on a balance of probabilities and granted them the orders sought in the Plaint plus general damages for trespass in the sum of Kshs.50,000/-.
11.Aggrieved by the said determination, the Appellant lodged the Memorandum of Appeal herein dated 11th June, 2019 urging this Court to set aside the entire Judgment on the grounds that:
12.As the First Appellate Court, the duty of this Court is to re-evaluate the evidence that was placed 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. A first Appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand [See Selle & Another v Associated Motor Boat Company Limited & Others  EA 123].
13.I have accordingly carefully perused and considered the Record of Appeal as well as the impugned Judgment. I have similarly perused and considered the submissions and authorities placed before me by the Learned Advocates representing the Parties herein.
14.By their Plaint filed in the Lower Court, the Respondent herein and two others had sought orders of eviction against the Appellant and two others from the parcel of land known as Mahiga/Kamoko/1310. The Respondent had accused the Appellant and the two other Parties of trespass to the land and sought orders of injunction to restrain them from remaining thereon as well as general damages for trespass.
15.On its part the Appellant denied that the Respondent was the proprietor of the suit land. It was the Appellant’s case that it had purchased the suit property from the Respondent’s husband one Kiiru Gichohi (also known as Isaac Kiiru) in 1985 and that it had been in occupation thereof ever since. The Appellant asserted that it came to learn in the year 2017 as it was waiting for a title to be issued to itself, that the Respondent and the others had illegally, maliciously and fraudulently colluded to have the property registered in their names as joint proprietors.
16.By way of its Counterclaim, the Appellant had sought orders to issue restraining the Respondent from trespassing into, invading or in any manner whatsoever interfering with the Appellant’s quiet occupation and possession of the suit property. In addition, the Appellant sought an order directing the Respondent to transfer the title to itself and for the Land Registrar Nyeri to cancel the title deed so issued to the Respondents and to have the same registered in its name.
17.From the material placed before the Court, the sole issue for determination by the Court was as to who between the Appellant and the Respondent was the rightful owner of the parcel of land known as Mahiga/Kamoko/1310 (the suit property).
18.In support of their claim to the land, the Respondents testified through one Leonard Gikaru Wachira as their sole witness. In his evidence before the Court as captured at Pages 117 and 118 of the Record, Leonard asserted that jointly with his mother Jedidah Wangechi Wachira and one Elizabeth Wairimu Ndegwa, they were the registered proprietors of the suit property having been so registered and issued with a title deed therefor on 3rd January, 2011.
19.It was Leonard’s position that his father Isaac Kiiru Gichohi had never sold any land to the Defendants since in 1985 when the Appellant had purported to purchase the same, the land was still in the name of the County Council of Nyeri. He told the Court that while his father had agreed to exchange ½ an acre of land with the Council, his father was not compensated by the Council until the time of his death in 1996.
20.On their part, the Appellants testifying through one David Mbugua Wanjiru asserted that they had purchased the suit property from Leonard’s father for Kshs.22,500/- in the year 1985. The Appellants insisted that Leonard’s father sold the land after he was compensated for the ½ acre he had exchanged with the County Council. It was their case that the Parties had executed a Sale Agreement in regard to the transaction and that thereafter Leonard’s father had renounced any further interest on the suit property.
21.Having considered the said issues, the Learned Trial Magistrate concluded as follows at pages 5 to 6 of her Judgment (Pages 90 and 91 of the Record):
22.Having made those observations and conclusions, the Learned Trial Magistrate proceeded to find at paragraphs 15 to 16 of her Judgment that the Appellant had failed to provide any evidence of fraud on the part of the Respondent’s in acquiring such property. According to the Trial Court, the Appellant ought to have for example demonstrated that the suit property was hived off parcel 1309 and that it was imperative that the Appellant ought to have called the Land Registrar Nyeri to clarify to the Court the genesis of the title to the suit property and that having not done so, their Counterclaim had failed.
23.I have, with respect, painstakingly gone through the pleadings and statements that were filed before the Trial Court. I was unable to find how the Trial Court came to the conclusion that the 0.5 acres of land sold by Isaac Kiiru to the Appellant came to be known as L.R No. Mahiga/Kamoko/1309. Nor was I able to find anywhere in the Appellant’s Defence and Counterclaim where the Appellant had stated that the suit property was hived off the said L.R No. Mahiga/Kamoko/1309.
24.The position taken by the Respondent was that the Appellants were squatters on the said L.R No. Mahiga/Kamoko/1309 which according to the Respondent was public land. It was the Respondent’s case that on 8th February 2018, the Appellant had trespassed into the suit property owned by themselves and had destroyed certain structures thereon. On the other hand, the Appellant had stated that they had acquired by way of purchase both the suit property as well as the said L.R No. Mahiga/Kamoko/1309. The ownership of parcel 1309 was not the subject of the dispute before the Court and not much was stated as to its acquisition.
25.Having rightfully found that the said Isaac Kiiru had entered into a land sale agreement with the Appellant, I was unable to see how the Trial Court could at the same time arrive at the conclusion that the Respondent’s title was properly acquired. The basis of the Respondent’s case was that the family patriarch Isaac Kiiru had exchanged a 0.5 acre parcel of land with the County Council of Nyeri for the construction of Umbui Nursery School. The Respondents vehemently insisted that until his death, Isaac Kiiru had not been compensated for the land.
26.In his Further Statement dated 21st March, 2018 as filed in the Lower Court (Page 188 – 189 of the Record), the 2nd Respondent – Simon Muthoga Kiiru states as follows at the relevant paragraphs 1 to 6 thereof:
27.Arising from the foregoing, it was evident that the Respondent’s only claim to the land was the fact that the same was compensation for the land that Isaac Kiiru had exchanged with the County Council for the building of a nursery School at Umbui. It was common ground that the compensatory land had been identified at old Mahiga Chief’s Camp.
28.As the Learned Trial Magistrate had rightfully found at Paragraph 12 of her Judgment, that land had been identified and was sold by Isaac Kiiru to the Appellant on 7th October, 1985. His family was not therefore entitled to another compensation even though the process of getting the necessary approvals from the Government took long.
29.Perhaps aware of the shenanigans that would follow the transaction, Isaack Kiiru Gichohi wrote to the Chairman Nyeri County Council on 7th October, 1985 (Page 187 of the Record) as follows:
30.That being the case, it was apparent that Isaac Kiiru had long disposed of his interest in the compensatory land that he was entitled to from the County Council and that upon approval of the exchange, the Council ought as per his request to transfer the suit property to the Appellant and not to the Respondents as had happened herein.
31.In the premises, I was persuaded that the Learned Trial Magistrate had indeed erred in law and in fact in allowing the Respondents suit while dismissing the Appellant’s Counterclaim. That decision clearly went against the weight of the evidence that had been placed before the Court.
32.Accordingly I hereby allow the Appeal and set aside the Judgment delivered by the Trial Court on 17th May, 2019. The same is hereby substituted with an order dismissing the Respondents’ suit in its entirety and allowing the Appellant’s Counterclaim dated 16th March, 2018.
33.The Appellant shall have the costs both for the suit in the Lower Court and in this Appeal.
34.It is so ordered.