(a) Introduction
Samuel Nyambane Matoke, (hereinafter referred to as the respondent) filed a plaint in the Chief Magistrate Court at Molo against Martha Moraa Isanda, (hereinafter referred to as the appellant) stating that on or about the 15th February 1992, he entered into a sale agreement with one Isanda Mwembi (now deceased) for purchase of plot No. 13 situated at Sitoito Shopping Centre within Nakuru County. The respondent averred that the appellant was the Widow of Isanda Mwembi (the deceased)
The respondent further averred that the purchase price for the said plot was Kshs.11,500/=(eleven thousand five hundred only) and he paid the said money vide bankers cheque dated 31st January 1992 and Kshs.500/= was paid in cash on execution of the said agreement. He lamented that when he was about to take possession of the said plot; he was unable to because he was displaced by the 1992 tribal clashes and when he came back to the said area in the year 2013 he found a structure on the land and he approached the appellant who confirmed that she had constructed the said structure on the said plot she also confirmed that Mr. Isanda Mwembi had died.
The respondent engaged the village elders and the church elders to ask the appellant to vacate for the the respondent but the defendant declined. He therefore engaged an advocate who wrote a demand notice to the appellant to vacate from the subject plot but the appellant ignored, refused and or neglected to vacate from the said plot and to give vacant possession of the plot to the respondent. The respondent prayed in the lower court for a declaration that he was the rightful owner of plot number 13A at Sitoito Shopping Centre and that the defendant was a trespasser on the said plot.
He prayed for an order compelling the appellant to execute the necessary transfer forms and eviction order against the appellant. He also prayed for costs of this suit.
The appellant denied the claim though admitted that there were tribal clashes in 1992. She admitted having received the demand letter but did not know the subject suit property. The appellant further filed a counter claim stating that the respondent had been harassing her on the suit parcel of land using the police and therefore prayed for a restraining order against the respondent, servants and agents from harassing her. She prayed for general damages and costs of the suit.
The matter proceeded for hearing before the learned magistrate and PW1, the respondent testified that on 15th April 1997, the appellant’s husband sold him plot No 13A at Sitoito market. The purchase price was Kshs11,500 which he paid Kshs11,000 by cheque No.515533 and Kshs500 in cash. They signed an agreement on 15/2/1992. He has been paying rates since 1st February 1992 upto 2016. In 2013, when he went to settle on the plot, he found structures put up by appellant. He demanded that she vacates but she refused hence filed the case in the lower court at Molo.
On cross examination in the lower court, he stated that he had no certificate of official search in respect of the property but insisted that he paid the deceased the purchase price. The appellant on her part gave evidence under oath that she does not know the respondent and saw him in court for the 1st time. She was categorical that Isinda Mwembi was her husband. She did not know anything about the agreement between her husband and the respondent. When the husband died nobody went to claim any property. She stated that she had no land to give the respondent. On cross examination she stated that she did not know that her husband sold land in 1992. He could not sell land and yet he had children.
In the judgment the learned magistrate found the issue for determination as follows:-
(a) Whether there was a valid legal agreement enforceable between the respondent and the appellant’s late husband.
(b) Which party deserves the remedy of the court?
(c) Who pays costs?
The learned magistrate found that there was a valid agreement with legal implication on land no 13A Residential Sotoito shopping Centre Molo. It was executed before an advocate. The same was compliant with section 3 (3) of the law of Contract Act. The learned magistrate found that the purchase price was paid. The learned magistrate found that the property was purchased by the respondent in 1992 but he was chased away from Molo due to tribunal clashes. He went back in 2013 only to find that the appellant had constructed structures on the plot. The suit being filed in 2019 was within the contractual time lines under the statute of limitation. The learned magistrate ultimately found that the appellant was in violation of the respondents to property rights in plot No 13/A Molo. The respondent was awarded the prayers as sought.
The appellant was dissatisfied with the judgment and has appealed to this court on grounds that the learned magistrate erred in law and in fact by dismissing the Defendant's Counter-Claim dated 5th January, 2020 even though the same was amply supported by competent evidence. Moreover, that the learned magistrate erred in law and in fact by allowing the Plaintiff's suit when there was no proper evidence tendered in support of the same. Furthermore that the learned magistrate erred in law and in fact by failing to appreciate the evidence of the Defendant tendered during the hearing together with her written submission.
According to the appellant, the learned magistrate erred in law and in fact by failing to appreciate that the sale agreement dated 15th February, 1992 as alluded to by the respondent was not valid and/or enforceable in law as the late Isanda Mwembi was just an allottee of the land and could not pass a good/valid title to the respondent as the suit land was and still is registered in the name of the allotting authority and that the learned magistrate erred in law and in fact by finding that the Defendant was as a trespasser of the suit property and at the same time acknowledging that she was the wife to the late Isanda Mwembi, who at the time was and still is an allottee of the land.
The appellant contented that the learned Magistrate erred in law and in fact by compelling the Defendant to execute transfer documents of the suit property in favour of the Plaintiff, yet she was not a party to the alluded agreement dated 15th February, 1992 nor has obtained title of the suit land to give her legal right to transfer the same to the Plaintiff.
He further argues that the learned Magistrate erred in law and in fact in finding that the sale agreement was valid and enforceable between the Plaintiff and the Defendant's late husband yet the deceased estate was not a party to this suit and by failing to consider that the land was not vacant at the time of the alleged sale and that the Defendant being the wife of the late Isanda Mwembi was in occupation and possession of the land before agreement dated 15 th February, 1992 and as a result, no vacant possession was given to the Plaintiff
He further argues that the learned magistrate erred in law and in fact, by failing to appreciate that the contract alluded between the Plaintiff and Mr. Isanda Mwembi (now deceased) could only be enforced in law within a period of six (6 ) years as per the limitation of actions Act, which period had lapsed and failing to appreciate that the Defendant as a spouse to the late Isanda Mwembi was entitled to the proprietary rights as a beneficiary of the deceased estate and as a result is the beneficial owner of the land. The appellant prays for judgment in terms that the appeal be allowed and the judgment and consequential decree entered by the trial court be set aside and the Appellant's counter Claim be allowed. The Respondent be ordered to pay the costs of the appeal and that of the trial court.
(b) Submissions by the Appellant
The gravamen of the appellant’s submissions is that the suit land herein was and is still registered in the name of Isanda Mwembi (deceased) hence the trial magistrate erred in law and in fact in making a declaration that the Respondent was the rightful owner of the same and compelling the Appellant who was not the administratrix to estate of the late Isanda Mwembi to execute transfer forms of the land in favour of the Respondent.
The appellant relies on Section 24(a) of the Land Registration Act provides as follows:
"Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto."
Section 26 (1) of the Land Registration Act states as follows:
"The Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner... and the title of that proprietor shall not be subject to challenge except —
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme'
Further, the law is very clear that the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as. Proprietor of the land is the absolute and indefeasible owner unless successfully challenged in court on, account of fraud, misrepresentation among others.
The appellant contends that the late Isanda Mwembi (deceased) was and still is the lawful owner of the suit land and as such the trial magistrate erred in law and in fact in declaring the Respondent as the rightful owner of the suit land and that despite that the sale agreement dated 15 February, 1992 being highly contested by the Appellant before the trial court as she was not privy to the same, the Respondent failed to lead any shred of evidence to demonstrate that the title had passed to him in order for the court to 2 deem him as the rightful owner of the land.
That the Respondent had a right to bring an action against the late Isanda Mwembi and/or his estate and seek the aforesaid reliefs against the estate within a period of six (6) years from the date of the agreement. The appellant argues that the suit herein in so far as the reliefs that were sought are concerned was statute barred as per Section 4 of the Limitation of Action Act.
(c) Submissions by the Respondent
The respondent on his part submits that the trial magistrate considered all factors in allowing the Respondent's case. It is, trite law that the person who alleges is under the duty to prove all the allegations as contained in the claim but section 109 of the Evidence Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the court to belief in its existence.
According to the respondent, the appellant herein never produced any documents which entitled her to be in possession of the subject land. The appellant never produced any receipts for payment of land rates but the Respondent produced demand notices and receipts from County Council of Nakuru.
The respondent contends that there is no dispute that there was tribal clashes in the year 1992 and that both the appellant and the respondent fled the area for safety the respondent told the trial court that all his properties were burnt down therefore fled and he came back in 2013 only to find structures, on the disputed plot. Though the appellant denied knowledge of the agreement between her deceased husband and the respondent, the said agreement has never been challenged at all even after the appellant being made aware of the existence of the said agreement. The respondent led evidence that in the year 1992 there were tribal clashes which led to people freeing the area where the plot is situated. The respondent never went back to the said area until 2013.
(d) Analysis and determination
I have considered the evidence on record the rival submissions and do find that the 1st issue for determination is whether the contract was enforceable against the appellant. The respondent prayed for the enforcement of the contract and eviction of the appellant. The genesis of this suit was an agreement executed on 15th February 1992 between the respondent and the husband to the appellant. According to the agreement, the seller was to pay all outstanding amounts as at 31st January 1992 and that after execution of the agreement, the vendor was to hand over vacant possession to the respondent free from any encumbrances. Moreover, after execution of the agreement, the vendor was to assist the purchaser to get himself registered as the owner of the property by signing the transfer. Unfortunately for the respondent, who was the appellant’s husband died before transferring the property as agreed.
This court finds that the property was registered in the names of the late Isanda Mwembi and is still so registered and therefore the prayers sought against the appellant could not be granted because she is not the registered owner of the suit land and was not the administratrix of the estate of the deceased and therefore lacked the capacity to be sued.
This court further finds that the agreement was executed between the respondent and the deceased Isanda Mwemba and that any action for enforcement of the agreement was to be brought against the administratrix of the estate of the said Isanda Mwembi and not the appellant as the appellant is not the administratrix of the estate of Isanda Mwembi. The appellant has no powers under the law to transfer the suit property to the respondent.
I do find that the learned magistrate erred in granting the prayers sought and that the appeal is merited and do grant the prayers that the appeal be allowed and is hereby allowed and the judgment and consequential decree entered by the trial court be and is hereby set aside and that the Appellant's counter claim be and is hereby allowed on the basis that the property is still registered in the names of Isanda Mwembi. The Respondent is ordered to pay the costs of the appeal and that of the trial court.
Samuel Nyambane Matoke, (hereinafter referred to as the respondent) filed a plaint in the Chief Magistrate Court at Molo against Martha Moraa Isanda, (hereinafter referred to as the appellant) stating that on or about the 15th February 1992, he entered into a sale agreement with one Isanda Mwembi (now deceased) for purchase of plot No. 13 situated at Sitoito Shopping Centre within Nakuru County. The respondent averred that the appellant was the Widow of Isanda Mwembi (the deceased)
The respondent further averred that the purchase price for the said plot was Kshs.11,500/=(eleven thousand five hundred only) and he paid the said money vide bankers cheque dated 31st January 1992 and Kshs.500/= was paid in cash on execution of the said agreement. He lamented that when he was about to take possession of the said plot; he was unable to because he was displaced by the 1992 tribal clashes and when he came back to the said area in the year 2013 he found a structure on the land and he approached the appellant who confirmed that she had constructed the said structure on the said plot she also confirmed that Mr. Isanda Mwembi had died.
The respondent engaged the village elders and the church elders to ask the appellant to vacate for the the respondent but the defendant declined. He therefore engaged an advocate who wrote a demand notice to the appellant to vacate from the subject plot but the appellant ignored, refused and or neglected to vacate from the said plot and to give vacant possession of the plot to the respondent. The respondent prayed in the lower court for a declaration that he was the rightful owner of plot number 13A at Sitoito Shopping Centre and that the defendant was a trespasser on the said plot.
He prayed for an order compelling the appellant to execute the necessary transfer forms and eviction order against the appellant. He also prayed for costs of this suit.
The appellant denied the claim though admitted that there were tribal clashes in 1992. She admitted having received the demand letter but did not know the subject suit property. The appellant further filed a counter claim stating that the respondent had been harassing her on the suit parcel of land using the police and therefore prayed for a restraining order against the respondent, servants and agents from harassing her. She prayed for general damages and costs of the suit.
The matter proceeded for hearing before the learned magistrate and PW1, the respondent testified that on 15th April 1997, the appellant’s husband sold him plot No 13A at Sitoito market. The purchase price was Kshs11,500 which he paid Kshs11,000 by cheque No.515533 and Kshs500 in cash. They signed an agreement on 15/2/1992. He has been paying rates since 1st February 1992 upto 2016. In 2013, when he went to settle on the plot, he found structures put up by appellant. He demanded that she vacates but she refused hence filed the case in the lower court at Molo.
On cross examination in the lower court, he stated that he had no certificate of official search in respect of the property but insisted that he paid the deceased the purchase price. The appellant on her part gave evidence under oath that she does not know the respondent and saw him in court for the 1st time. She was categorical that Isinda Mwembi was her husband. She did not know anything about the agreement between her husband and the respondent. When the husband died nobody went to claim any property. She stated that she had no land to give the respondent. On cross examination she stated that she did not know that her husband sold land in 1992. He could not sell land and yet he had children.
In the judgment the learned magistrate found the issue for determination as follows:-
(a) Whether there was a valid legal agreement enforceable between the respondent and the appellant’s late husband.
(b) Which party deserves the remedy of the court?
(c) Who pays costs?
The learned magistrate found that there was a valid agreement with legal implication on land no 13A Residential Sotoito shopping Centre Molo. It was executed before an advocate. The same was compliant with section 3 (3) of the law of Contract Act. The learned magistrate found that the purchase price was paid. The learned magistrate found that the property was purchased by the respondent in 1992 but he was chased away from Molo due to tribunal clashes. He went back in 2013 only to find that the appellant had constructed structures on the plot. The suit being filed in 2019 was within the contractual time lines under the statute of limitation. The learned magistrate ultimately found that the appellant was in violation of the respondents to property rights in plot No 13/A Molo. The respondent was awarded the prayers as sought.
The appellant was dissatisfied with the judgment and has appealed to this court on grounds that the learned magistrate erred in law and in fact by dismissing the Defendant's Counter-Claim dated 5th January, 2020 even though the same was amply supported by competent evidence. Moreover, that the learned magistrate erred in law and in fact by allowing the Plaintiff's suit when there was no proper evidence tendered in support of the same. Furthermore that the learned magistrate erred in law and in fact by failing to appreciate the evidence of the Defendant tendered during the hearing together with her written submission.
According to the appellant, the learned magistrate erred in law and in fact by failing to appreciate that the sale agreement dated 15th February, 1992 as alluded to by the respondent was not valid and/or enforceable in law as the late Isanda Mwembi was just an allottee of the land and could not pass a good/valid title to the respondent as the suit land was and still is registered in the name of the allotting authority and that the learned magistrate erred in law and in fact by finding that the Defendant was as a trespasser of the suit property and at the same time acknowledging that she was the wife to the late Isanda Mwembi, who at the time was and still is an allottee of the land.
The appellant contented that the learned Magistrate erred in law and in fact by compelling the Defendant to execute transfer documents of the suit property in favour of the Plaintiff, yet she was not a party to the alluded agreement dated 15th February, 1992 nor has obtained title of the suit land to give her legal right to transfer the same to the Plaintiff.
He further argues that the learned Magistrate erred in law and in fact in finding that the sale agreement was valid and enforceable between the Plaintiff and the Defendant's late husband yet the deceased estate was not a party to this suit and by failing to consider that the land was not vacant at the time of the alleged sale and that the Defendant being the wife of the late Isanda Mwembi was in occupation and possession of the land before agreement dated 15 th February, 1992 and as a result, no vacant possession was given to the Plaintiff
He further argues that the learned magistrate erred in law and in fact, by failing to appreciate that the contract alluded between the Plaintiff and Mr. Isanda Mwembi (now deceased) could only be enforced in law within a period of six (6 ) years as per the limitation of actions Act, which period had lapsed and failing to appreciate that the Defendant as a spouse to the late Isanda Mwembi was entitled to the proprietary rights as a beneficiary of the deceased estate and as a result is the beneficial owner of the land. The appellant prays for judgment in terms that the appeal be allowed and the judgment and consequential decree entered by the trial court be set aside and the Appellant's counter Claim be allowed. The Respondent be ordered to pay the costs of the appeal and that of the trial court.
(b) Submissions by the Appellant
The gravamen of the appellant’s submissions is that the suit land herein was and is still registered in the name of Isanda Mwembi (deceased) hence the trial magistrate erred in law and in fact in making a declaration that the Respondent was the rightful owner of the same and compelling the Appellant who was not the administratrix to estate of the late Isanda Mwembi to execute transfer forms of the land in favour of the Respondent.
The appellant relies on Section 24(a) of the Land Registration Act provides as follows:
"Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto."
Section 26 (1) of the Land Registration Act states as follows:
"The Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner... and the title of that proprietor shall not be subject to challenge except —
(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or
b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme'
Further, the law is very clear that the Certificate of Title issued by the Registrar upon registration shall be taken by all courts as prima facie evidence that the person named as. Proprietor of the land is the absolute and indefeasible owner unless successfully challenged in court on, account of fraud, misrepresentation among others.
The appellant contends that the late Isanda Mwembi (deceased) was and still is the lawful owner of the suit land and as such the trial magistrate erred in law and in fact in declaring the Respondent as the rightful owner of the suit land and that despite that the sale agreement dated 15 February, 1992 being highly contested by the Appellant before the trial court as she was not privy to the same, the Respondent failed to lead any shred of evidence to demonstrate that the title had passed to him in order for the court to 2 deem him as the rightful owner of the land.
That the Respondent had a right to bring an action against the late Isanda Mwembi and/or his estate and seek the aforesaid reliefs against the estate within a period of six (6) years from the date of the agreement. The appellant argues that the suit herein in so far as the reliefs that were sought are concerned was statute barred as per Section 4 of the Limitation of Action Act.
(c) Submissions by the Respondent
The respondent on his part submits that the trial magistrate considered all factors in allowing the Respondent's case. It is, trite law that the person who alleges is under the duty to prove all the allegations as contained in the claim but section 109 of the Evidence Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the court to belief in its existence.
According to the respondent, the appellant herein never produced any documents which entitled her to be in possession of the subject land. The appellant never produced any receipts for payment of land rates but the Respondent produced demand notices and receipts from County Council of Nakuru.
The respondent contends that there is no dispute that there was tribal clashes in the year 1992 and that both the appellant and the respondent fled the area for safety the respondent told the trial court that all his properties were burnt down therefore fled and he came back in 2013 only to find structures, on the disputed plot. Though the appellant denied knowledge of the agreement between her deceased husband and the respondent, the said agreement has never been challenged at all even after the appellant being made aware of the existence of the said agreement. The respondent led evidence that in the year 1992 there were tribal clashes which led to people freeing the area where the plot is situated. The respondent never went back to the said area until 2013.
(d) Analysis and determination
I have considered the evidence on record the rival submissions and do find that the 1st issue for determination is whether the contract was enforceable against the appellant. The respondent prayed for the enforcement of the contract and eviction of the appellant. The genesis of this suit was an agreement executed on 15th February 1992 between the respondent and the husband to the appellant. According to the agreement, the seller was to pay all outstanding amounts as at 31st January 1992 and that after execution of the agreement, the vendor was to hand over vacant possession to the respondent free from any encumbrances. Moreover, after execution of the agreement, the vendor was to assist the purchaser to get himself registered as the owner of the property by signing the transfer. Unfortunately for the respondent, who was the appellant’s husband died before transferring the property as agreed.
This court finds that the property was registered in the names of the late Isanda Mwembi and is still so registered and therefore the prayers sought against the appellant could not be granted because she is not the registered owner of the suit land and was not the administratrix of the estate of the deceased and therefore lacked the capacity to be sued.
This court further finds that the agreement was executed between the respondent and the deceased Isanda Mwemba and that any action for enforcement of the agreement was to be brought against the administratrix of the estate of the said Isanda Mwembi and not the appellant as the appellant is not the administratrix of the estate of Isanda Mwembi. The appellant has no powers under the law to transfer the suit property to the respondent.
I do find that the learned magistrate erred in granting the prayers sought and that the appeal is merited and do grant the prayers that the appeal be allowed and is hereby allowed and the judgment and consequential decree entered by the trial court be and is hereby set aside and that the Appellant's counter claim be and is hereby allowed on the basis that the property is still registered in the names of Isanda Mwembi. The Respondent is ordered to pay the costs of the appeal and that of the trial court.