Mahugu & 13 others v Jepkorir & another

Party Plot No. Purchase Price (kshs) James Kamutu Mahugu 602 260,000/- Nancy Wairimu 603 250,000/ Join Namulen Lodoket 604 70,000/= Joel Githure Muremi 605 250,000/= Simon Kinyanjui Ndio 606 - Thomas Kapenguri 607 65,000/= Samuel Mwangi Gicheha 608 70,000/= Harun Waciuri Wambugu 609/61 160,000/= John Githuo Nduati 611 75,000/= Julius Nungu 612 235,000/- James Kibunja Kamau 613A 260,000/- 613B 280,000/- Simon Okemwa Macharia Kalemaposi John Mwangi Kamau John Kamundia 3. Sometimes in the year 2006, the deceased Charles Kabuthia Maina A.K.A Charles Maina Kabuthia applied for and obtained the Consent to sub-divide all that land known as Subukia/Subukia Block 1/331 (TETU) from the Bahati Land Control Board. 4. According to the plainti, sometimes in the year 2007, the deceased Charles Kabuthia Maina a.k.a Charles Maina Kabuthia executed the necessary Mutation Forms in favour of the sub-divisions but unfortunately died on 7th July 2008 before the process could be completed and Title Deeds issued to the Plaintis. The Plaintis immediately after the purchase and full payment of their respective parcels of land, took possession thereof, developed their respective parcels and have been in occupation since their respective dates of purchase. 5. The Defendants have all along never interfered with, nor interrupted the quiet occupation, possession, development and use by the Plaintis of their respective parcels of land since the date of purchase. 6. Following the demise of Charles Kabuthia Maina a.k.a Charles Maina Kabuthia, the 1 st and 2nd Defendants led Nakuru High Court Succession Cause No. 605 OF 2008 and obtained a Certicate of Conrmation of a Grant on 8TH December 2010 which was rectied on 13th July 2012. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19862/eng@2023-09-19 2

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7. The Rectied Certicate of Conrmation of a Grant granted the I Defendant as the beneciary of the whole share in Subukia/Subukia Block1/33 1 (TETU) to the exclusion of all the Plaintis who were indeed never mentioned in the Succession Cause aforesaid as Purchasers of the whole parcel of land. 8. The Plaintis have approached the Defendants to have the Defendants execute the necessary documents to have the Plaintis registered as the owners of their respective parcels but the Defendants have refused and/or neglected to execute the necessary documents making the ling of this suit necessary. The Plaintis contend that the refusal by the Defendants to eect the transfer of the land to the Plaintis amounts to a breach of contract and this Honorable Court ought to order for specic performance of the agreements of sale. 9. The Plaintis' claim against the Defendants is therefore for a declaration that the Plaintis are the lawful owners of their respective parcels of land as purchased from the 10. deceased Charles Kabuthia Maina a. k.a Charles Maina Kabuthia and the 2nd Defendant , an Order directing the Ist and 2nd Defendant to execute all relevant [necessary documents to have the Plaintis registered as the owners of their respective portions, failing which the Registrar of this Honorable Court be authorized to execute the said documents and an Order of injunction restraining the Defendants by themselves, agents and/or assigns and anybody else claiming under them from in any way interfering with the Plaintis possession, occupation , development and use of their respective parcels of land as set out under paragraph 6 above. 11. The plaintis pray for a declaration that they are the lawful owners of the respective parcels of land they purchased from the deceased Charles Kabuthia Maina a.k.a Charles Maina Kabuthia and the 2nd Defendant and more particularly as follows:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19862/eng@2023-09-19 3

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Party Plot No. Purchase Price (kshs) James Kamutu Mahugu 602 260,000/- Nancy Wairimu 603 250,000/ Join Namulen Lodoket 604 70,000/= Joel Githure Muremi 605 250,000/= Simon Kinyanjui Ndio 606 70,000/= Thomas Kapenguri 607 65,000/= Samuel Mwangi Gicheha 608 70,000/= Harun Waciuri Wambugu 609/61 160,000/= John Githuo Nduati 611 75,000/= Julius Nungu 612 235,000/- James Kibunja Kamau 613A 260,000/- John Mwangi Kamau 613B 280,000/- Simon Okemwa Macharia Kalemaposi John Kamundia 12. They further pray for an Order directing the Defendants to execute all the necessary documents to eect the transfer to each Plainti his respective portion failing which the Registrar of this Honorable Court be authorized to execute the said documents and eect transfer in favour of the Plaintis. 13. Furthermore, an Order of permanent injunction restraining the Defendants by themselves, assigns or agents and anyone claiming under them from in any way interfering with the Plaintis possession, occupation, development and use of their respective parcels of land as set out under paragraph 6 of this Plaint. The plaintis further pray for the costs of this suit. The defendant led defence generally denying the particulars of the plaint. 14. When the matter came up for hearing the plaintis called the 1st plainti as the sole witness who testied on his behalf and for the 13 other plaintis. He adopted his statement and produced the authority of the other plaintis to testify on their behalf. The 1st plainti produced the statements of the other plaintis as PEX 2 to PEX 14. The list of documents plus the documents were produced as PEX 15PEX 35. The 1st plainti testied that all plaintis reside on the land. There was no counter claim. The defendants did not call any evidence. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19862/eng@2023-09-19 4

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15. I have considered the pleadings evidence on record and rival submissions and do nd that the plaintis’ evidence is not controverted and therefore the evidence should be believed. In Edward Muriga Through Stanley Muriga Vs. Nathaniel D. Schulter Civil Appeal No.23 of 1997, it was held that where a defendant does not adduce evidence the plainti’s evidence is to be believed, as allegations by the defence is not evidence. In the case of Motex Knitwear Limited Vs. Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No.834 of 2002, Lesiit, J. citing the case of Autar Singh Bahra And Another Vs. Raju Govindji, HCCC No.548 of 1998 appreciated that:‘Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the evidence rendered by the 1st plainti’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.’" 17. Similarly, the Court of Appeal in the case Edward Mariga through Stanley Mobisa Mariga vs. Nathaniel David Shulter & Another [1979] eKLR said:“ The respondents led a defence in which they denied the appellant's claim and averred that the accident was caused by the appellant's own negligence in that he suddenly ran across the road and in the process was hit by the motor vehicle. The respondents did not give evidence and so the only explanation as to how the accident happened was the version put forward by the appellant and his brother.” 18. This is made further clear in the case CMC Aviation LTD vs. Crusair LTD (no.1) (1987) KLR 103 as follows:“ The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.” 19. The plaintis have proved that they purchased the suit property. They entered into agreement and paid the prerequisite consideration and were given possession of the land. The plainti are entitled to the orders sought and I do grant a declaration that they are the lawful owners of the respective parcels of land they purchased from the deceased Charles Kabuthia Maina a.k.a Charles Maina Kabuthia and the 2nd Defendant and more particularly as follows:- https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19862/eng@2023-09-19 5

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Party Plot No. Purchase Price (kshs) James Kamutu Mahugu 602 260,000/- Nancy Wairimu 603 250,000/ Join Namulen Lodoket 604 70,000/= Joel Githure Muremi 605 250,000/= Simon Kinyanjui Ndio 606 - Thomas Kapenguri 607 65,000/= Samuel Mwangi Gicheha 608 70,000/= Harun Waciuri Wambugu 609/61 160,000/= John Githuo Nduati 611 75,000/= Julius Nungu 612 235,000/- James Kibunja Kamau 613A 260,000/- John Mwangi Kamau 613B 280,000/- Simon Okemwa Macharia Kalemaposi John Kamundia 20. I do further grant an Order directing the Defendants to execute all the necessary documents to eect the transfer to each Plainti his respective portion failing which the Registrar of this Honorable Court is hereby authorized to execute the said documents and eect transfer in favour of the Plaintis. 21. Furthermore, I do grant an Order of permanent injunction restraining the Defendants by themselves, assigns or agents and anyone claiming under them from in any way interfering with the Plaintis possession, occupation, development and use of their respective parcels of land as set out under paragraph 6 of this Plaint. Cost of the suit to the plaintis. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 19TH DAY OF SEPTEMBER 2023. A O OMBWAYO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19862/eng@2023-09-19 6

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