Kangacha v Samwel

2. 4. The learned trial magistrate erred in law and in fact by ordering exhumation of the remains of the late Michael Kangasha whereas there was no order that had been issued against his burial on the subject land. 5. The learned trial magistrate erred in law and in fact by nding that the respondent proved her case on a balance of probabilities against the weight of the appellant’s evidence in court. The appellant is asking for orders that: a. That the judgment in Siakago Civil Case No. 9 of 2017 be set aside. b. That this appeal be allowed in its entirety. c. That costs of this appeal and costs of the lower court case be awarded to the appellant. 3. The respondent, as plainti in the lower court, had instituted the lower court suit by way of a plaint dated 31.01.2017. The suit went through several amendments, with the last amendment being made on 23.12.2020. She was seeking a permanent injunction against the appellant, who was the defendant, from continued trespass on land parcel Nthawa/Siakago/238 and for exhumation of the remains of the appellant’s late husband, Michael Kangasha, from the suit land. She was also seeking an eviction order against the appellant from the said land as well as mesne prots from the year 2009. Further, she also sought costs of the suit and any other remedy the court deemed t. It was the respondent’s case that she was presenting the suit in her capacity as the legal representative of the estate of John Njiru, who is the registered proprietor of the suit land. She stated that the appellant, in or about the year 2009, had trespassed on the land and continues to illegally occupy it and has even buried her late husband there. 4. The appellant had led a defence on 22.03.2017 but did not le any amended defence after the amendments to the plaint. She stated that despite the respondent being the registered owner of the land, she herself had been in occupation of the land since 1981. That the respondent had bought the land from one Kega Kihwaga knowing that the appellant and her family were in occupation of it and were living on it as licencees. That her deceased husband, Michael Kangasha, bought the land from one Kiringa Ndabari only to later realize that the same was registered in the names of Kega Kihwaga, who later sold it to the respondent. That she had buried four (4) members of her immediate family on the land. She asked that the suit be dismissed with costs. 5. During trial, the respondent, Sarah Wambura, testied as PW1. She testied that her husband had bought the land from Kega Kihwaga. That he had started buying the land in 2013. That the husband had been told that there were people living on the land and that these people were the appellant and her deceased husband, Michael Kangasha. She testied that the land was eventually transferred to her deceased husband, who wanted to take possession of it, but his eorts to have the appellant and her husband leave the land were futile. In 2016, he led a case in court, that is Siakago Civil Case No. 11/2016, where he had sued the appellant and her husband. Kangasha died while the case was still ongoing and her husband declined to have him buried on the land but he was still buried there. 6. She testied further, that her husband also died in November 2018. She asked that the appellant and her family be evicted from the land and that the land be transferred to her. She also wanted an exhumation order for removal of Kangasha’s body from the land. She produced in evidence a conrmed grant over the estate of John Njiru (deceased), title deed over land parcel Nthawa/ Siakago/238, Green Card over land parcel Nthawa/Siakago/238, plaint in Siakago civil case no. 11 of 2016, defence in Siakago civil case 11 of 2016, demand letter dated 8/9/2015, demand letter dated 14/01/2016, a letter dated 15/01/2016, all as PEXH 1-8. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14239/eng@2024-10-22 2

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7. The appellant, Niceleta Mutitu Kangasha, testied as DW1. She adopted her written witness statement as evidence. It was her testimony that she was the wife of Michael Kangasha who died on 24.12.2016. That the respondent is the current registered owner of the suit land but her (Appellant’s) deceased husband had bought the same from Kiringa Ndabari who was indicated as the owner as per the adjudication record. That after they bought the land, they settled thereon in 1981 and began doing cultivation and other developments. That in the year 2013, when the said Kiringa Ndabari wanted to transfer the land to her husband, they realized that Kega Kihwaga’s was registered as owner of the land. Kiringa denied having transferred the land to Kihwaga. That the said Kega Kihwaga agreed to retransfer the land to Kiringa Ndabari in the presence of the Chief Nthawa Location, so that Kiringa would transfer the land to her husband but that never happened. 8. It was her testimony that the Kega Kihwaga sold the land to the respondent who led the instant suit to evict them from the land. That during the said sale, her husband had raised several objections to the land control board but he was never heard. She stated that her entire family lives on this land which they have fully developed and have planted many trees and fruits which they rely on for livelihood. That they have lived on the land without interference from anybody and she has also buried four (4) of her immediate family members on the same land without any objection from anybody. That the respondent bought the land when they were still in occupation as licensees and so their title was not clean. The respondent also never inquired on what basis they were settled on the land. That despite the respondent having the title to the land, all the developments thereon belong to her family. 9. The trial court delivered judgement on 29.06.2022 and found that the respondent’s husband, John Njiru, was the legitimate registered owner of the land, having bought it from Kega Kihwaga, the rst registered owner. That the appellant claimed her family had lived on the land since 1981, having bought it from Kiringa Ndabari. But Kiringa was never proven to be the rightful owner and the Appellant had failed to provide documentation to support her claims or prove any fraud relating to the land sale. The court ruled in favor of the respondent issuing: A permanent injunction against the appellant for trespassing. An order for the exhumation and removal of Michael Kangasha’s remains from the land within 30 days. An eviction order against the appellant and her agents, with a 30 day grace period to vacate voluntarily or failure to that to be evicted as per the law. Each party to bear their own costs. That is what led to the appeal now before me. 10. The appeal was canvassed by way of written submissions but only the appellant led submissions. In her submissions, the appellant contended that her family's occupation had created an overriding interestover the land, having lived there for over 30 years, and this interest should have been recognized by the court. She relied on the case of Wensley Barasa v Immaculate Awino Abongo (2017) eKLR to support this position. She also argued that a constructive trust was created in favor of her husband, as the initial registered owner had obtained title to the suit land irregularly and the appellant’s husband had remained in possession of the land. That the Respondent’s husband, she argued, did not acquire a good title because the land was encumbered by this overriding interest in favour of her husband. She also cited the case of Twalib Hatayan & another v Said Saggar Ahmed Al-Heidy & 5 others (2015) eKLR in support of her submissions. 11. I have considered the record of appeal, the appellant’s submissions, and the lower court record in general. My duty as the rst appellate court is to re-evaluate and re-assess the evidence that was before the lower court and make my own conclusions while bearing in mind that the lower court had the advantage of handling the evidence rst hand. The decided cases of Selle v Associated Motor Boat Company Limited [1968] EA 123 and Mbogo v Shah [1968] EA 93 serve to remind me that I should not rush to interfere with the ndings of fact by the lower court unless I am completely convinced that the lower court was wholly wrong in its appreciation of the evidence before it. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14239/eng@2024-10-22 3

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12. The appellant raised ve main grounds of appeal, which I will address in turn: A. Whether the trial magistrate erred in nding that the plainti ’s husband had acquired a good title to the land. The appellant contends that the title to the suit land, transferred to the respondent’s husband by Kega Kihwaga, was fraudulently obtained and therefore Kega did not have a good title to pass to the respondent’s husband. She asserts that her husband had purchased the land from Kiringa Ndabari and that the transfer to Kihwaga was irregular. However, despite these claims, the appellant failed to present any documentary evidence to prove fraud or irregularity in the acquisition of title on the part of Kega Kihwaga, who according to the Green Card produced as evidence, was the rst registered proprietor. The trial court observed that the respondent had been able to give a history of how her husband became the owner of the land. That the respondent, despite indicating that the land was in the adjudication register registered in the name of Kiringa Ndabari, who had then sold it to her husband, did not produce the said register for the court’s perusal. In the absence of any evidence to the contrary, then the trial magistrate’s ndings that the respondent’s husband, John Njiru, had obtained the land legally from the registered proprietor under the law was not erroneous. It is trite law that he who alleges must prove. 13. Again, the law is clear that a certicate of title is prima facie evidence of ownership unless proven otherwise. Section 26(1) of the Land Registration Act provides that a title deed is indefeasible unless obtained through fraud or mistake. In this case, the appellant neither pleaded nor proved that fraud occurred in having Kega Kihwaga registered as proprietor and later transferring his title to the respondent’s husband. Therefore, I nd no reason to interfere with the trial court’s nding that the respondent’s husband acquired a good title to the suit land. B. Whether the trial magistrate erred in failing to nd that the appellant was a licensee on the land. 14. The appellant claimed that she and her family had occupied the land as licensees, having lived there since 1981. However, the trial court found that there was no credible evidence to support the claim of a valid license. The court was of the view that since the appellant claims to have bought the land from a person whom it is not proved was the registered owner of the land, it is in doubt that one can be given licensee rights by a person who is not a legitimate owner of the land. Those rights cannot pass. I agree with the trial court on that nding. Additionally, the trial magistrate also rightly noted that the appellant’s husband had never formally pursued any legal recourse to challenge the registration of the land in Kega Kihwaga’s name despite that option being available. I also nd that the appellant failed to establish a clear legal basis for her claim of being a licensee as there was no cogent evidence as to how she came to be a licensee. I nd that the trial court was correct in rejecting this argument. C. Whether the trial magistrate erred in nding that the transfer of the land to John Njiru by Kega Kihwaga was not irregular or un procedural. 15. The appellant contended that the land transfer to the respondent’s husband was irregular and unprocedural. However, the trial court found that the transfer to Kega Kihwaga, and later to the respondent’s husband, in the absence of evidence to the contrary, followed the legal processes. The court noted that the appellant did not provide any evidence of any irregularities in the issuance of the title deed to Kega Kihwaga or to the respondent’s husband. I concur with the trial magistrate’s conclusion that the transfer of the land was lawful. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14239/eng@2024-10-22 4

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D. Whether the exhumation order was erroneous. 16. The appellant also challenged the exhumation order for her late husband’s remains. As unfortunate as it is, the respondent was able to prove ownership of the land. It appears that the appellant’s family had buried the deceased on the suit land without the consent of the registered owner. The trial court opined that Section 29 of the Land Registration Act gives the registered owner the right to utilize their land as they deem t and the occupation of the appellant and her agents interfered with those rights, which is true. The appellant having failed to justify her right to bury her husband on the suit land, can be deemed to have trespassed, and so I nd that the exhumation order was properly issued. E. Whether the respondent was able to prove her case on a balance of probabilities. 17. The trial court found that the respondent had established her case to the required legal standard. The respondent provided documentary evidence, including the title deed and the green card of the suit land which conrmed that her husband was the registered proprietor of the suit land. And as observed above, being the registered proprietor, he is entitled to deal with his land as he deems t. The appellant, by contrast, was unable to present any evidence to support her claims of ownership or fraud or irregularity in the transfer of the suit land to the respondent’s husband. I therefore agree with the trial court’s nding that the respondent had proven her case on a balance of probabilities. 18. From the foregoing, I nd that the trial magistrate correctly applied the law and the facts in reaching her decision. I will uphold the judgment of the trial court delivered on 29.06.2022 and direct that: a. The appellant will be granted 90 days from the date of this judgement to voluntarily vacate from land parcel Nthawa/Siakago/238 and if upon the expiry of the 90 days they will not have voluntarily vacated, be evicted from the land as per the law. b. That the remains of Michael Kangasha (deceased) be exhumed and removed from land parcel no. Nthawa/Siakago/238 under the guidance of a public health ocer within the next 90 days from this date. c. Each party shall bear their own costs of the lower court as well as the appeal. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT KITUI THIS 22ND DAY OF OCTOBER, 2024. A. KANIARU JUDGE - ENVIRONMENT & LAND COURT, EMBU In the presence of; Court Assistant – Leadys Appellant – Absent Respondent – Absent M/s Kamochu for M/s. Muthoni Ndeke for Appellant Ndolo (Absent) for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14239/eng@2024-10-22 5

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