(Being an appeal against the judgment of Hon. Virginia Karanja PM delivered on 27th November 2023 in Iten MCELC Case No. E046 of 2021)
Introduction
1. By a plaint dated 13th September 2021, the plaintiffs (now appellants) instituted a suit in the lower court to wit Iten SRMC ELC Case No.E046 of 2021 seeking judgment against the defendant (now respondent) for a declaration that land parcel Irong/Kapkoi Forest/130, hereinafter referred to as the suit property, belongs to them; an order of eviction of the defendant from the suit property; an order that the OCS, Kaptagat Police Station oversees the execution and enforcement of the eviction order; general damages; costs and interest at court rates.
2. The plaintiffs’ suit was premised on the grounds that the plaintiffs are the registered owners of the suit property; that the plaintiffs inherited the suit property from the estate of Kangogo Barmao, deceased, and that the defendant without any colour of right, had forcefully taken possession of the suit property thereby denying the plaintiffs their right to use, possess, occupy and/or otherwise own the suit property without interference.
3. The plaintiffs lamented that their efforts to get the defendant vacate the suit property were futile.
4. The defendant filed a statement of defence, dated 11th October 2021, in which he denied the allegations levelled against him and inter alia contended that the plaintiffs acquired title to the suit property fraudulently and/or illegally. In particular, the defendant pleaded that the transfer of the suit property to the plaintiffs was effected fraudulently and/or un procedurally in that the consent of one of the administrators of the estate of the deceased was not obtained and that the transfer was effected before the estate of the deceased was distributed by the court.
5. In a rejoinder, the plaintiffs filed a reply to defence, dated 31st March 2022, in which they acknowledge that there was a probate cause in respect of the estate of the deceased which was prosecuted by Joseph K. Kangongo and Elizabeth Tapkigen Kangongo.
6. It is the plaintiffs case that the grant issued in the succession proceedings was confirmed and thereafter the suit property transferred to Elizabeth Tapkigen Kangogo who transferred it to her seven daughters because they had not benefited from the succession proceedings. The plaintiffs further pleaded that distribution of the estate of the deceased was not objected to or protested.
7. Maintaining that the defendant’s occupation of the suit property was unlawful, the plaintiffs urged the court to grant them the reliefs sought.
8. When the case came up for hearing, the plaintiffs availed three (3) witnesses namely Elizabeth Tapkigen (P.W.1), Benjamin Kiprono Barmao (P.W.2), Alice Kangogo (P.W.3) all of whom led evidence to the effect that the suit property was distributed to the plaintiffs by P.W.1 without involvement of the court or her co-administrator Joseph K. Kangogo.
9. On his part, the defendant availed three (3) witnesses, Daniel Kipngetich Kangogo (D.W.1); Joseph Kiptarus Kangogo (D.W.2) and Salina Kangogo (D.W.3) all of whom led evidence to the effect that the suit property belonged to the estate of Barmao Kangogo and was transferred to the plaintiffs by P.W.1 without the consent of the other beneficiaries of the estate.
10. At close of hearing, parties filed submissions.
11. Upon considering the pleadings, the evidence and the submissions filed by the parties, the learned trial magistrate inter alia stated/held: -
“In this case the plaintiffs are the sisters to the defendant. Their mother was called as the plaintiffs’ witness and she confirmed that her husband had two parcels of land Kapkoi 130 and Tembeleo 7557/5 which was subdivided into 3 portions for her sons Benjamin, Joseph and Daniel (the defendant) who were to receive 7 acres each.
Kapkoi 130 was registered in the names of the 1st and the 2nd plaintiff who were to hold in trust for their 5 sisters.
Block No. Tembeleo/117 which was meant for the defendant is registered in the name of Elizabeth (the parties’ mother).
There was a succession matter, Eldoret HCC P & A 38 of 1996 and Elizabeth and Joseph had been appointed as administrators. The certificate of confirmation does not indicate any property of the deceased therein. Therefore the shares of each beneficiary are yet to be ascertained and if parties have title deed registered in their name without due process, it would be an illegality. The plaintiffs themselves did not shed light as to how the property was registered into their names.
Their mother is registered in plot Tembeleo No. 117 which they have indicated belongs to the defendant. She did not shed light as to how she became the registered owner. They indicated that by the time of confirmation of grant the title deeds had not been issued and the deceased had already passed on. They ought to have gone back to the succession court to conclude the process as opposed to holding meetings and distributing the deceased properties to the detriment of other beneficiaries.
I find the process leading to issuance of title deed improper and therefore orders sought by the plaintiffs cannot be granted by this court in the absence of proper succession documents. The share of each beneficiary is not ascertained in relation to plot No.130 kapkoi and plot Tembeleo No. 7557.
Having found that the distribution of the deceased properties was improper, without a proper succession cause concluded, I find that the plaintiffs have failed to prove their case on a balance of probabilities and I proceed to dismiss the suit with each party bearing its own costs since the parties herein are family members.”
APPEAL
12. Dissatisfied by the decision of the lower court, the plaintiffs appealed to this court on 9 grounds that can be reduced to one broad ground namely that the learned trial magistrate erred by determining that the plaintiffs had not proved their case on a balance of probabilities.
13. The Appellants urge this court to set aside the judgment of the lower court in its entirety and to enter judgment for them as prayed for in their plaint dated 13th September, 2021.
14. Pursuant to directions given on 3rd July 2024, the appeal was disposed off by way of written submissions.
Appellants’ submissions
15. In their submissions, the appellants acknowledge that the suit property belonged to the estate of Barmao Kangogo but contend that filing of a succession cause in respect thereof, sometime in 1996, was done owing to a misapprehension of the law. According to the appellants, there was no need to subject the suit property to succession proceedings, contemplated in the Law of Succession Act because the registered owner died on 11th May 1981 before the Law of Succession Act came into effect.
16. It is the appellants case that the suit property was registered in the name of Elizabeth Tapkigen Kangogo, the parties mother, to hold in trust for herself and her children and that there was no property to be distributed in the succession cause filed in respect of the estate of the deceased because the suit property had already been registered in the name of the deceased’s wife, Elizabeth Tapkigen Kangogo.
17. The learned trial magistrate is said to have failed to appreciate the facts of the case before her, which are that the suit property had been transferred to the deceased person’s wife who had in turn distributed it to her daughters; that in distributing the estate, the deceased’s wife took into account the rights of all her children.
18. Terming the impugned distribution of the estate of the deceased person lawful and constitutional, the appellants fault the respondent for relying on customary law and practices to deny his sisters their right to inherit the estate of their father.
19. The learned trial magistrate is said to have failed to appreciate the nature of conflict before her.
Respondent’s submissions
20. In the respondent’s submissions, it is pointed out that the estate of the deceased was succeeded vide Eldoret High Court Probate Cause No. 38 of 1996; that the estate had two administrators, Elizabeth Tapkigen Kangogo and Joseph Kangogo and that the estate was not distributed in the cause.
21. Elizabeth Tapkigen Kangogo is faulted for having used short cuts to obtain title deeds in her favour and in favour of her daughters, the appellants, to the exclusion of her sons.
22. The distribution of the deceased’s estate is said to have been done without the knowledge of the other administrator, Joseph Kangogo, and without consultation of the other beneficiaries of the estate, hence illegal.
23. Terming Elizabeth Tapkigen Kangogo an intermeddler with the estate of the deceased, the respondent submits that the learned trial magistrate took into account both sides of the case before rendering her decision.
Analysis and determination
24. In exercise of the duty vested in this court as a first appellate court, I have re-evaluated the evidence adduced before the lower court with a view of reaching my own conclusion on it. I have reminded myself that a first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or were based on misapprehension of the evidence or unless it is demonstrated that the trial court acted upon wrong principles in reaching the finding. In that regard see Selle & another vs. Associated Motor Boat Co. Ltd (1968)E.A 123 and Mwanasokoni vs. Kenya Bus Service Ltd (1982-88)1 KAR and Kiruga vs. Kiruga & Another (1988)KLR 348.
25. From the grounds of appeal and the submissions by the parties, the sole issue for determination is whether the appellants have made a case for interfering with the decision of the trial court. In that regard, a review of the pleadings filed in the lower court shows that the appellants pleaded that they inherited the suit property from the estate of the deceased. They also acknowledged that there was a succession cause filed in respect of the estate of the deceased. By suggesting that there was no need to subject the estate of the deceased to succession, when they had not pleaded as much, the appellants have departed from their pleading against the rules of pleading, particularly Order 2 Rule 6 of the Civil Procedure Rules, which provides as follows: -
“No party may in any pleading make any allegation of fact, or raise any new ground of claim, inconsistent with a previous pleading of his in the same suit.”
26. It is trite law that parties are bound by their pleading and that any evidence at variance with pleading amounts to no evidence. In that regard, see the case of Raila Amollo Odinga vs. IEBC & 2 others (2017) e KLR where the Supreme Court of Kenya stated: -
“In absence of pleadings, evidence, if any, produced by the parties cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have opportunity of placing relevant evidence before court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”
27. In the instant case, the plaintiffs pleaded that they inherited the suit property from the estate of their father. It is common ground that the suit property formed part of the estate of Barmao Kangogo, deceased. Succession proceedings in respect of the estate of the deceased were filed, but no distribution in respect of the estate was done by the court.
28. Whilst the appellants have claimed that the suit property was not subject to the process of administration of the estate of a deceased person contemplated under the Law of Succession Act, Cap 160 Laws of Kenya, it is noted that the appellants neither raised that issue before the lower court nor led evidence capable of showing that the suit property was registered in the name of Elizabeth Tapkigen Kangogo before it was registered in the name of the plaintiffs/appellants.
29. It was not enough for the appellants to waive the title registered in their names. They needed to prove that the applicable legal processes were complied with in issuance of the title in their name. In that regard, see the case of Munyu Maina vs. Hiram Gathiha Maina (2013)e KLR where the Court of Appeal stated:-
“When a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title that is in challenge... the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show the acquisition was legal, formal and free from any encumbrances including all interests which need not be noted on the register.”
30. In the circumstances of this case, the respondent pleaded that the title held by the plaintiffs is vitiated by fraud and failure to adhere to the applicable procedures in its acquisition.
31. Upon re-evaluating the evidence adduced before the lower court, I agree with the learned trial magistrate that distribution of the deceased’s estate was improper as it was done without involvement of the court and without the consent of the beneficiaries thereto.
32. The upshot of the foregoing is that the appeal has no merit. Consequently, I dismiss it with costs to the respondent.
Judgment dated, signed and delivered at Iten this 22nd October, 2024