MICHAEL NJUGUNA MURATHA & 20 others v MARGARET NGENDO WAMBAKI & 4 others

LUCY WAITHERA KAMAU……………………………………………….14TH PLAINTIFF JOSEPH MBUGUA …………………………………………………………15TH PLAINTIFF FELISTAS NJERI……………………………………………………………16TH PLAINTIFF JOHNSON KINYUA…………………………………………………………17TH PLAINTIFF FRANCIS MUHORO GITHU……………………………………………….18TH PLAINTIFF LILLIAN NYAMBURA GATHIMA……………………………………….19TH PLAINTIFF PETER NJUGUNA ………………………………………………………….20TH PLAINTIFF DAVID MIRITI MTOKIAO…………………………………..…………….21ST PLAINTIFF VERSUS MARGARET NGENDO WAMBAKI……………………………...……….1ST DEFENDANT TERESIA WANJIKU WAMBAKI........................................................…...2ND DEFENDANT JOSEPH KIMANI GATHECHA……………………….…………………..3RD DEFENDANT MARY WAIRIMU MIRINGU T/A WAKIBUI HELP GROUP INVESTIMENT……………….……………..5TH DEFENDANT CHIEF LAND REGISTRAR, THIKA…………………………………….6TH DEFENDANT RULING 1. At the heart of this dispute is the ownership of RUIRU/RUIRU EAST BLOCK 2/908 and 909 ( hereinafter referred to as the suit property) which belonged to the late Philisila Wambaki Kiguru. Vide a Plaint dated 19 th November 2015, the Plaintiffs filed a suit seeking Judgement against the Defendants jointly and severally for various restraining orders against the Defendants and also seeking declaratory orders that the Plaintiffs are the RULING ELC NO 1206 OF 2015 2 of 11

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legal and rightful owners of the individual sub division plots arising out of the suit properties. 2. This court differently constituted heard the evidence as adduced by three Plaintiffs witnesses and the 3rd and 4th Defendant. In a Judgement delivered by the Hon Lady Justice Komingoi on 21 st September 2023 the court made the following orders; a) That the 5th Defendant do refund the Plaintiffs the value of the suit plots at the current market rate. b) That the Plaintiffs do vacate the suit properties within one hundred and fifty (150) days from the date of this Judgment. In default, the 3rd and 4th defendants be at liberty to use lawful means to evict them. c) That costs of this suit shall be borne by the 2nd and 5th defendants 3. Some of the findings of the court that led to these final orders were that the Plaintiffs were victims of the 2nd and 5th Defendants actions. From the Judgement I glean that the court refused to uphold the transaction between the Plaintiffs and the 5th Defendant for a number of reasons; firstly that the Plaintiffs acted on the basis of a title which was in the name of Philisila Wambaki Kiguru who was by then deceased; that the Plaintiffs failed to undertake due diligence; at paragraph 41 the court faults the Plaintiffs for failing to produce any sale agreement with the 5th Defendant and lastly that there was no consent from the Land Control Board to subdivide the suit property into smaller portions. The court found that the Plaintiffs were entitled to a refund by the 2nd and 5th Defendant of the value of the suit plots. RULING ELC NO 1206 OF 2015 3 of 11

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4. On the other hand the court found that the 3 rd and 4th Defendant had proved that they purchased the suit properties from the 1 st Defendant in whose favour the suit property was distributed when the confirmation of grant was issued. The court noted that the two had sale agreements which the court upheld. The court also noted the green card entries. 5. The Plaintiffs have filed an application dated 16 th February, 2024 in which they seek the following orders; a) That this application be certified as urgent and the same be heard exparte on a priority basis and service thereof be dispensed with in the first instance b) That the Honourable Court be pleased to grant leave for the firm of M/S WAKIAGA SEMEKIA & CO ADVOCATES to be placed on record in place of the firm of KAHUTHU & KAHUTHU ADVOCATE, on behalf of the Plaintiffs/Applicants herein c) That pending the hearing and determination of this application, the Honourable Court be pleased to grant an interim order of stay of execution and or implementation of the Judgment and decree of the Honourable Court rendered on the 21st day of September 2023 together with all consequential and or incidental order d) That in the alternative and without prejudice to the foregoing, pending the hearing and determination of this application, the Honourable RULING ELC NO 1206 OF 2015 4 of 11

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Court be pleased to order and or direct the maintenance of status quo in terms of occupation, possession, use over and in respect of all those parcels of land known as RUIRU/RUIRU EAST BLOCK 2 /908 (now RUIRU/RUIRU EAST BLOCK 2/17598 to RUIRU/RUIRU EAST BLOCK 2/17613 respectively) and RUIRU/RUIRU EAST BLOCK 2/909 (now RUIRU EAST BLOCK 2/17598 to RUITU/RUIRU EAST BLOCK 2/17598 to RUIRU/RUIRU EAST BLOCK 2/17613 respectively) (hereinafter referred to as the “suit properties” e) That the Honourable Court be pleased to alter, set aside and or review the Judgment dated 21st day of September 2023 by Honourable Lady Justice L.KOMONGI and set the suit for a fresh hearing. f) That the Honourable Court be pleased to order and direct the officer Commanding Station, Ruiru police Station to ensure compliance and enforcement of the orders of this Honourable Court g) That the costs of this application be in the cause h) That the Honourable Court be pleased to grant any such further and or other orders as they may be deemed just, appropriate and expedient in the interest of justice 6. In the affidavit in support of the application the Plaintiffs urge the court to review the order by Hon Lady Justice Komingoi for various reasons namely; that there several errors apparent on the face of the record as the court RULING ELC NO 1206 OF 2015 5 of 11

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misapprehended the fact that the certificate of confirmation of grant was confirmed on 3rd February 2006 yet the grant was confirmed on 30th May, 1996 hence the 2nd Defendant had authority as an administrator to enter into a sale agreement with the 5th Defendant; further that the court did not address itself to substantial issues in the pleadings; that the court overlooked the fact that they were in the process of obtaining consent of the land control board; they also aver that the court did not fully consider the evidence. 7. The 3rd Defendant filed a short Replying Affidavit in which he stated that the Plaintiffs were seeking to litigate again issues that had been already resolved by the court. 8. While this application was pending a party filed an application dated 26 th February 2024 seeking to arrest the Ruling to await other proceedings which were ongoing. This application was overtaken by events as this court which was engaged in a Performance Management exercise was unable to deliver the Ruling. I therefore mark it as spent. 9. On the 9th January 2025 yet another application was filed by the guardian ad litem of the 1st Defendant who seeks a number of orders including an order that the intended interested party be granted leave to join as an interested party so as to represent the interest of her mother who is confirmed to be mentally incapable. She also sought to set aside the Judgement on basis of mental incapacity. This application was partially allowed by consent on 27 th January 2025 allowing the guardian ad litem to join as 1st Defendant. RULING ELC NO 1206 OF 2015 6 of 11

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10.I will address the first application which seeks to review the Judgement of the court delivered on 21st September 2023. The courts power to review is exercised within the framework of Section 80 Civil Procedure Act and Order 45 Rule 1. Section 80 of the Civil Procedure Act provides as follows: 80. Any person who considers himself aggrieved(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: 45 Rule 1 (1) Any person considering himself aggrieved(a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for review of judgement to the court which passed the decree or made the order without unreasonable delay.” RULING ELC NO 1206 OF 2015 7 of 11

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11.The application for review is primarily hinged on the claim that there are several errors in the decision of the court. The courts have had occasion to interpret what amounts to an error apparent on the face of the record. In Nyamogo & Nyamogo v Kogo (2001)EA 173 discussing what constitutes an error on the face of the record, the court rendered itself as below; “An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal 12. While the Plaintiffs cited several errors the only error that they isolated was the finding by the court that the grant was confirmed on 3 rd February 2006 and not 1996. I have considered the arguments by the Plaintiffs on this point and I am not satisfied that it aids their case. The court did not only consider the date that the grant was issued but also considered the fact that the suit RULING ELC NO 1206 OF 2015 8 of 11

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properties were solely bequeathed to the 1st Defendant and not the 2nd Defendant who sold it to the 5 th Defendant and eventually the Plaintiffs herein who have filed this application. It is also noteworthy that the Certificate of confirmation of grant which the proposed interested party (now 1st Defendant) has annexed to the application dated 9 th January, 2025 bears the date of 3rd February, 2006 which the court is alleged to have erred in considering. The same certificate of confirmation of grant also confirms that the properties of the late Priscilah Wambaki Kiguru was divided not only to the 1st Defendant Margaret Ngendo Wambakai the 1st Defendant herein, but also to her sister Teresa Wanjiku Wambaki the 2 nd Defendant herein, who was also a beneficiary of several assets of their late mother. The current application is curiously silent on the issue of final distribution which did not bequeath the suit property to the 2 nd Defendant who purported to sell it to the 5th Defendant and then to the Plaintiffs. 13.All the other issues the Plaintiffs raise are issues which would require this court to make findings on issues already addressed by a court of equal jurisdiction. That would be over reach by this court. I also point out that as summarized by this court in paragraph 3 and 4 of this Ruling, the courts decision for and against either parry was made on the basis of reasons which transcended the certificate of confirmation of grant. This court cannot reopen those issues for determination. I therefore do not find any grounds to review the Judgement of the court. RULING ELC NO 1206 OF 2015 9 of 11

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14.On the latest application the proposed interested party who is now the 1 st Defendant, avers that she was not heard during the suit and seeks to set aside the Judgment. In her application, she attaches a Ruling from Thika High Court in which she was appointed the guardian ad liten for the 1 st Defendant. The Ruling which is dated 19th December 2024 raises more unanswered questions. Firstly the medical report attached to the application which alleges that the 1st Defendant was being treated for dementia is dated 1 st February 2023. It fails to prove that by the time the 1st Defendant was selling the suit property to the 3rd Defendant, almost nine years ago, she was unwell and did not have capacity to carry out the transaction. The 1st Defendant also, fails to tell the court why if her mother was incapacitated all these years she only waited until the 11th September 2024 to seek the orders of guardian ad litem. She also does not indicate what defence if any she has to the suit. 15.The upshot of the foregoing is that I find that both applications have no merit and dismissed with costs. Judgment Signed, Dated and Delivered via Microsoft teams this 30th day of January 2025 JUDY OMANGE JUDGE In the presence of: Mr. Wakiaga for Plaintiff RULING ELC NO 1206 OF 2015 10 of 11

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Mr Njonjo for the 3rd Defendant Court Assistant Meryline RULING ELC NO 1206 OF 2015 11 of 11

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