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REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATES COURT AT NYAHURURU


CIVIL CASE NO. 88 OF 2014.
MARGARET WANGUI NJOROGE::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF
VERSUS
JAMES MBATIA NJOROGE::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
PLAINTIFFS WRITTEN SUBMISSIONS
1.

BACKGROUND

You honour, the plaintiff in this matter is the step mother to the defendant.
The defendants consanguineous mother is deceased.
The suit land in this matter has its gist stemming from the purchase of
shares from LESHAU PONDO FARMERS CO. LTD by the plaintiff but in the
names of her husband MR. S. NJOROGE MBATIA (deceased) who also
happened to be the defendants father pursuant to the KIKUYU CUSTOMARY
LAW.
The said deceased died before the payment of shares was completed
prompting the subsequent payments to be registered in the names of the
plaintiff.
Your honour, though the share certificate had been issued in the names of
the defendant before his death, the suit land was finally registered in the
names of both the plaintiff and defendant in this matter though the type of
ownership was not noted on the register.
The plaintiff and the defendant lived and continue to live on the suit land,
occupying and possessing the same in equal right full though informal
shares.
Your honour, the plaintiff is now elderly and sickly and the cold climatic
conditions of the area situate of the suit land and which area she has called
home since time immemorial has become hostile to her health.
As a result, the plaintiff has always wanted to have the suit land partitioned
to have her gain exclusive possession of her portion as per the informal
shares both the plaintiff and the defendant currently occupy, to enable her to
dispose of the same and move to another favourable area interms of climate.
Your honour, the upshot of this matter is therefore the fact that despite
several demands by the plaintiff to have the suit land partitioned, the
defendant has vehemently refused and/ or failed to have the same
partitioned, necessitating the filing of this matter before this honourable
court.

These are therefore the humble submissions of the plaintiff in that regard.

2.

THE LAW.
The constitution of Kenya 2010 at Article 40. (1) provides that, Subject
to Article 65, every person has the right, either individually or in
association with others, to acquire and own property
(a) of any description; and
(b) in any part of Kenya.
Section 91. of the Land Registration Act no.3 of 2012 provides that, (1)
In this Act, co-tenancy means the ownership of land by two or more
persons in undivided shares and includes joint tenancy or tenancy in
common.
(2)
(3) An instrument made in favour of two or more persons and the
registration giving effect to it shall show
(a) whether those persons are joint tenants or tenants in common; and
(b) the share of each tenant, if they are tenants in common.
(4)..
(5).
(6) No tenant in common shall deal with their undivided share in favour
of any person other than another tenant in common, except with the
consent in writing, of the remaining tenants, but such consent shall not
be unreasonably withheld.( emphasis ours.)

The same was the position in the Registered Land Act Cap 300 Laws of
Kenya (repealed) Section 101(1) (a) and (b).
Practice directions on proceedings in the environment and land courts, and
on
proceedings relating to the environment and the use and occupation of, and
title to
land and proceedings in other courts no. 8 of 2014 pursuant to GAZETTE
NOTICE NO. 5178Vol.CXVINo.89NAIROBI,28thJuly,2014. provides that,
Magistrates Courts shall continue to hear and determine all cases
relating to the environment and the use and occupation of, and title to
land (whether pending or new) in which the courts have the requisite
pecuniary jurisdiction. All proceedings which were pending before the
Magistrates Court, having been transferred thereto from the now
defunct District Land Disputes Tribunals, shall continue to heard and
determined by the same courts.
Section 28(b) of the Registered Land Act Cap. 300, provides that,
the rights of a proprietor, whether acquired on first registration or
whether acquired subsequently for valuable consideration or by an
order of court, shall not be liable to be defeated except as provided in
this Act, and shall be held by the proprietor, together with all privileges

and appurtenances belonging thereto, free from all other interests and
claims whatsoever, but subject (a)
(b) unless the contrary is expressed in the register, to such liabilities,
rights and interests as affect the same and are declared by section 30
not to require noting on the register:
Section 30(g) of the Registered Land Act Cap. 300 provides that,
that unless the contrary is expressed in the register, all registered
land shall be subject to the following overriding interest as may from
the time being subsist and affect the same, without their being noted
on the register.
(g)

3.

the rights of a person in possession or actual occupation of land


to which he is entitled in right only of such possession or
occupation, save where inquiry is made of such person and the
rights are not disclosed;

LEGAL ISSUES FOR DETERMINATION.

Your Lordship, the Appellant in his Memorandum of Appeal raised his


grounds of appeal, which can therefore be condensed into the following legal
issues for determination:a. Whether the Principal magistrates Court had the requisite jurisdiction
to hear and determine a matter on cancellation, correction, and/ or
rectification of the lands register.
b. Whether the respondents registration as proprietor of the suit parcel of
land is lawful.
c. Whether the appellants occupation of the suit land forms an overriding
interest over the said suit land and against the respondents
registration as the proprietor thereof.
d. Whether the
respondent.

appellant

has

established

his

claim

against

the

e. Which party bears the costs of this appeal.


2.

JURISDICTION OF THE LOWER COURT.

Your Honour, the suit land is vividly registered under the Registered Land Act
Cap. 300 (repealed) (herein referred to as the R.L.A) hence making the said
R.L.A inevitably, the applicable law in as far as the suit land is concerned.
Your Lordship, having noted that, then it is time we delve into the provisions
of the R.L.A, relative to the issue of jurisdiction. The R.L.A in Section 159 as
captioned earlier provides for the jurisdiction of the High court to hear and
determine matters related to the title to, or the possession of, land, or to the
title to a lease or charge, registered under itself, or to any interest in the
land, lease or charge, being an interest which is registered or registrable
under itself, or which is expressed by itself not to require registration.

The R.L.A in the same provision also extends the same jurisdiction to the
lower court where the value of the subject matter does not exceed 25
thousand pounds.
Your honour, looking at the above mentioned value at the time of filing the
suit and converting the same into Kenya shillings at the rate of ksh 129.61 as
at March, 2013, it brings us to a value of approximately Kshs. 3,240,250/=
(Find attached a copy of the ministry of finances monthly debt bulletin for
March, 2013 showing Interalia, the movement in exchange rates.)
Your honour, today, the suit land is valued at Kshs.(Find
attached a copy of the valuation report for the suit land.) Leading us to
strongly conclude that the value of the suit land as it is today, still brings the
suit land within the requisite pecuniary jurisdiction as required by Section
159 of the R.L.A without even considering the inflationary trends and the
increase in demand for land affecting the value of land in the republic.
Your honour, to buttress on the issue of subordinate courts having the
jurisdiction to hear and determine land matters within their pecuniary
jurisdiction, we wish to reiterate the provision of the above captioned gazette
notice which enhanced the jurisdiction of subordinate courts to hear and
determine all cases relating to the environment and the use and occupation
of, and title to land (whether pending or new) in which the courts have
the requisite pecuniary jurisdiction.(emphasis ours).
Your honour, in JOHN NAKHABI OKELO V OBURA NELSON [2013] eKLR,
it was held thus;
The Magistrates court have jurisdiction to continue hearing and determining
matters on
environment, use and occupation of, and title to land that were pending
before the courts by the time the Environment and Land Court was
operationalized, those transferred to those courts from the defunct land
Disputes Tribunals and new matter subject to their pecuniary jurisdiction.

Your honour, having canvassed the issue of jurisdiction, it cannot be over


emphasized that indeed the learned principle magistrate erred in law and
fact in holding that the subordinate court lacked the requisite jurisdiction to
hear and determine this matter and to issue the orders as prayed for.
3.

FRAUD

Your honour, according to Black's Law Dictionary 2nd Ed, fraud consists of
some deceitful practice or willful device, resorted to with intent to deprive
another of his right, or in some manner to do him an injury.
Your honour, in the case of TABITHA KAMWANGI (suing as the next friend and
mother of MUTEGI KANGA) VERSUS- JOHN GITONGA NJERU & DOMIZIANO
KABURU NJERU[2006] Eklr adopts the definition of fraud in P.G. Osborns law
dictionary 5th edition as;
Your honour, the appellant in his plaint in the lower court pleaded that he
was allocated plot No. UASO NAROK B/539 in Laikipia in the year 2002 and
whereof he had the same surveyed and marked off. He paid the requisite
fees at the Rumuruti Land Adjudication and Settlement office and was issued
with an official receipt thereof and went ahead to occupy and develop the
plot of land.

Your honour, having complied as above, the appellant was only waiting
issuance of title, when he lost his allotment letter, reported to the police and
was issued with a police abstract. In the year 2014, the appellant went to
collect his title only to discover that the same had already been collected by
the respondent, after being fraudulently registered as the proprietor of the
suit land.
The appellant complained to the Land registrar who noted that there was an
error in issuance of the said title. The Land Registrar issued suumons
pursuant to Section 8(b) of the R.L.A to the respondent which summons was
produced in court during trial ordering him to appear before the Registrar to
produce the title to the suit land.
Your honour, the respondent never appeared before the registrar despite
being served with the said summons, evidence of which was properly
adduced during trial.
Your honour, during examination in chief PW2 being the land registrar stated
that he received a list of beneficiary for various plots of land was given to
him by the provincial administration and settlement department which list
he produced as P EX 7. According to the said list, the beneficiary for the suit
land was the appellant.
Your honour, the respondent was not in the list of beneficiaries according to P
EX 7.
When summoned by the land registrar vide a process provided for by the
law, the respondent paid a deaf year. The respondent even after obtaining
title for the suit land did not attempt to visit, occupy or even enquire on the
ground status of the suit land, otherwise he would raised a query as to
ownership of the suit land. Your honour, no explanation was given about that
at the trial.
Your honour, given the foregoing, it can only be deciphered that the
respondent was very much alive to his fraudulently acquired title and
decided to remain silent lest he awoke the dead.
Your honour, it can therefore not be far from the truth, that the learned trial
principal magistrate erred in both law and fact by failing to declare that the
appellant had indeed proved his case against the respondent on a balance of
probability particularly on the basis that the respondent had acquired the
title to the suit land fraudulently.
3.1

TIME BARRED

Invariably, and without prejudice to the foregoing, the said decision was and
remains time barred and in the event, could not be executed at the High
Court Level and can not be executed now or even in future. The decision has
since died a natural death.
The award and/or decision of the tribunal was made in the year 2000 with
the date not clear but that not with standing, the High Court adopted the
said decision vide the judgment signed and delivered at Meru on 13 th
November 2014 15 years later. Your Lordships and Ladyship, Section 4 (4) of

the LIMITATION OF ACTIONS ACT CAP. 22 Laws of Kenya stipulates that an


action may not be brought upon a Judgment after the end of twelve (12)
years from the date the Judgment was delivered. In the case of MIKIARA
MRINKANYA & SEBASTIAN NYABU VERSUS GILBERT KABERE MBIJJIWE NYERI
CIVIL APPEAL NO. 124 OF 2003 the Learned Judges of this Honourable Court
then held that no execution of a decree that is more than 12 years is
permissible.

Therefore it is clear from the above cited provision and authority that the
construction of Section 4(4) of Limitation of Actions Act Cap. 22 Laws of
Kenya is that all post judgment proceedings are statute barred after 12
years.
Your Lordships and Ladyship, the Appellant argued in her written submissions
to the High Court that the award by the tribunal was time barred and could
not be adopted by the High Court but the Learned Judge did not sufficiently
consider her argument.
We therefore humbly submit that the Learned Judge erred in law and fact in
not finding that the tribunals decision he relied on was time barred and
could not be executed in the circumstances.
3.2

DECISION RES-JUDICATA

Section 7 of the Civil Procedure Act Cap 21 stipulates that No court shall try
any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit or the
suit in which such issue has been subsequently raised, and has been heard
and finally decided by such Court.
Your Lordships and Ladyship, the object of the above provision, is to avoid a
situation where a party is vexed twice for the same cause, in the interest of
the state, and everyone, to have an end to litigation. Parties cannot litigate
forever.
The East African Court Of Justice at Arusha in REFERENCE NO. 1 OF 2007
BETWEEN JAMES KATABAZI AND 21 OTHERS VERSUS SECRETARY GENERAL
OF THE EAST AFRICAN COMMUNITY AND THE ATTORNEY GENERAL OF THE
REPUBLIC OF UGANDA deduced precisely the ingredients of the doctrine of
Res Judicata as uniformly defined in the Civil Procedure Acts of Kenya,
Uganda and Tanzania as follows:a. The matter must be directly and substantially in issue in the two
suits.
b. Parties must be the same or parties under whom any of them claiming
under the same title (Emphasis is supplied), and
c. The matter was finally decided in the previous suit.

Court held that all the three situations must be available for the doctrine of
Res Judicata to operate.
Your Lordships and Ladyship, in the instant case:a. the matter in the Land disputes tribunal was a claim of 6 Acres from
L.R. NO. KIIRUA/NAARI/1363 which was the subject of protest in H.C.
SUCCESSION CAUSE NO. 538 OF 2009.
b. the parties in the land disputes tribunal may not be the same as the
parties in the High Court Succession Cause. However, the Petitioner in
the High Court Succession Cause, now the Appellant was and is
claiming under the same title as the deceased who was party to the
land disputes tribunal case.
c. The matter in the land disputes tribunal was finally determined and the
decision thereof was even upheld by the Provincial Appeals Committee.
We therefore humbly submit that the protest at the High Court had met the
required threshold of the doctrine of Res Judicata and the Learned Judge
erred in law and fact in not finding that the protest was Res Judicata.
4.

THE HIGH COURT AND ITS POWERS

Your Lordships and Ladyship, in the case of DR. LEONARD KIMEU MWATHI
VERSUS RUKARIA MTWERANDU MIRIUNGI CA NO. 28 OF 2011 NYERI, this
Court pointed out that The Law of Succession Act was envisaged as a
complete regime of Law complete with its own procedure for purposes of
administering the estate of a deceased person and the- distribution of the
estate to the beneficiaries. If there is any claim of civil nature against a
deceaseds estate, a claimant is supposed to file a civil suit
against the administrators of the deceaseds estate.
Involvement of
claimants of civil obligations or others in matters of the administration of a
deceaseds estate causes delays and difficulties in resolving them within the
regime of the law of succession.
The court went ahead to hold that since the appellants claim of the suit
property was a share of 16/31 and 15/31 of which he claimed to have been
issued with a title, those were matter that could only be determined by a civil
court.

Your lordships and ladyship, in the instant case we humbly submit that it is
clear beyond peradventure that the respondents claim of 3 acres each out of
KIIRUA/NAARI/1363 is one of ownership and not one out of them being
beneficiaries of the deceaseds estate and therefore their claim only qualified
to be one of a civil nature which should not have been brought by way of a
protest in a succession cause.
The learned judge therefore erred in law and in fact in
a) Not accepting the appellants submissions to the effect that the protest
should have been dealt with in a civil case.
b) Allowing a succession cause to be used as a mode of execution of an
unlawful judgment decided elsewhere.
5. APPELLANTS WRITTEN SUBMISSIONS AT THE HIGH COURT
Your lordships and ladyship, the appellant in her written submissions at
the High court advanced all the above arguments and relied on several
authorities some of which have been cited herein before.
In that regard, we humbly submit that the learned judge erred in law
and in fact in that he failed to consider or sufficiently consider the
submissions of the appellant and her authorities.
Specifically, we assail the decision of the learned judge for going
against the ratios of the decisions of this Honourable court though
differently constituted in the cases of MIKIARA MRINKAYA &
SEBASTIAN NYAMU-VS-GILBERT KABEERE MBIJIWE (SUPRA) and DR.
LEONARD KIMEU MWATHI VERSUS RUKARIA MTWERANDU MIRIUNGI
CA NO. 28 OF 2011 NYERI (SUPRA) which were binding on him.
6.

THIS HONOURABLE COURT ITS POWERS AND/OR DUTIES


Your lordships and ladyship, as this is a first appeal, we humbly submit
that it is the duty of this Honourable court to analyze and he assess the
evidence on record and reach its own conclusions in the matter. It was
put more appropriately in SELLE-VS-ASSOCIATED MOTOR BOAT CO.
[1968] EA 123, thus:
An appeal to this court from a trial by the High court is by way of
retrial and the principles upon which this court acts in such an appeal
are well settled.

Briefly put they are that this court must reconsider the evidence,
evaluate it itself and draw its own conclusions though it should always
bear in mind that it has neither seen nor heard the witnesses and
should make due allowance in this respect. In particular this court is
not bound necessarily to follow the trial judges findings of fact if it
appears either that he has clearly failed on some point to take account
of particular circumstances or probabilities materially to estimate the

evidence or if the impression based on the demeanor of a witness is


inconsistent with the evidence in the case generally.
Your lordships and ladyship, it is in this regard that we humbly propose
to ask this Honourable court to allow this appeal and decision made by
the high court on distribution of L.R NO. KIIRUA/NAARI/1363 be set
aside and distribution redone as proposed by the appellant, or as this
Honourable
court deems fit or in accordance with the law of
succession Act Cap 160 laws of Kenya and the costs of the appeal and
the court below be provided for.

DATED AT MERU THIS..DAY OF


.2015

MAITAI RIMITA &


CO.
ADVOCATES FOR THE
APPELLANT
DRAWN & FILED BY:
MAITAI RIMITA & CO.
ADVOCATES
P. O. BOX 3151-60200
MERU
Email:maitairimita@ymail.com
Tel0725012327
TO BE SERVED UPON:
MBOGO & MURIUKI
ADVOCATES
P. O. BOX 1085-60200
MERU
KAIMENYI KITHINJI & CO.
ADVOCATES
NTUGI PLAZA, 2ND FLOOR
P. O. BOX 1654 -60200
MERU