text:
Home Brooklyn 20 Brooklyn's Newest Foodie Destinations
Brooklyn's Newest Foodie Destinations
Myrtle/Broadway
In this part of Bushwick, a bar or restaurant dating back to 2006 qualifies as an old timer. As recently as 2011 (the year nearby DIY venue the Market Hotel was shut down), there were just three places to get a drink in the relatively out-of-the-way area around Myrtle/Broadway: Goodbye Blue Monday, Lone Wolf and an inexplicable, since-shuttered branch of Beauty Bar. For food, there was Little Skip's (which came in 2010) or there was Seamless.
Since then, Beauty Bar's space was reworked into upscale bar-cafe Skytown; an absinthe-focused cocktail bar (Bizarre Bar) and a salad and juice spot (The Salad Wheel) opened right across the street from each other on Jefferson; Norbert's, a vegan-friendly pizza joint, opened up two locations in the area; and Bossa Nova Civic Club triggered New York Times trend pieces seemingly the minute it opened. Silent Barn has also relocated to the area, Secret Project Robot's owners opened up their own bar on Myrtle (delightfully named Happy Fun Hideaway), and Dillinger's Cafe started serving up Russian food at the end of 2013. Right next door, a branch of Prospect Heights' Chuko Ramen is expected to open in the fall.
Of course, change this rapid raises eyebrows (and rents, inevitably). But then, you know, it's still pretty nice to have places to get food and beer that aren't a 20-minute walk from your apartment or the deli. After three years of wrangling with its permits, even the Market Hotel is making noise about opening back up, though it's unclear when, exactly, that'll be. Whenever it does, it'll be in a neighborhood drastically different than the one it left behind.
While it's long been a culinary wasteland, Windsor Terrace has never really needed anyone's pity. The neighborhood borders Prospect Park, has great public schools, and is a sought-after spot to live for individuals and families alike. But its lack of new restaurants has been deeply felt in the midst of the Brooklyn foodie boom, which is why the arrival of several new restaurants is so welcome. This past spring, Prospect Park West (the neighborhood's main thoroughfare) has been graced with the addition of Brunswick, from the owner of Prospect Heights' Sunshine Co. and Milk Bar; Krupa Grocery, from the co-owner of nearby Windsor Wine Merchants; and Brooklyn Proper, from the owner of Dear Bushwick. For Windy T residents, it's a welcome change
in a neighborhood that once had a paucity of options. Now if only someone would open a grocery store…
Maybe it started with Franklin Park, the beer garden. Or maybe it was the influx of new residents with different tastes, moving east from Park Slope and Prospect Heights. Whatever it was, in the last couple of years Crown Heights—particularly Franklin Avenue and the surrounding streets—has become a dining destination. There's always been terrific food in the neighborhood, but the new crop of restaurants are emblematic of the foodie culture already raging in other parts of Brooklyn and the city. As such, they're reflective of the economic and ethnic transformation of Crown Heights. It's still the best place to go for Caribbean food, but now there's an abundance of great spots to eat and drink: Mayfield, Cent'Anni, Glady's, The Wedge Cheese Shop, Silver Rice, Barboncino, and Catfish—try them, one and all, and you'll be happy you did.
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Q June 5, 2014 at 5:41 pm
NOPE! Neighborhoods aren't 'culinary wastelands' just because white privileged alt america is unfamiliar with their establishments. Kristin Iversen's gonna be so pissed..
Kristin Iversen June 5, 2014 at 6:12 pm
As a resident of Windsor Terrace for over 10 years, I have no problem with its designation as a culinary wasteland. The other neighborhoods mentioned are not (nor should they have been) described as such. But Windsor Terrace has only in recent years begun to have any options at all. Kensington, it isn't, you know?


text:
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using System.Collections.Generic;
using System.Linq;
using System.Text;
using CSharpGL;

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redpajama_set_name: RedPajamaGithub


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text:
Hillary's 6000 Crises
By Maria Russo • 03/13/06 12:00am
If you can trust the word of a publisher in promotion mode, then Living History is making money: Simon & Schuster reported on Tuesday, June 10, that 200,000 Americans had celebrated the first two days of publication of Hillary Rodham Clinton's memoir by paying $28 and taking it home. Here at The Observer (which Senator Clinton calls a "limited-circulation publication" on page 346), we asked some American novelists–John Updike, Erica Jong, David Gates, Vince Passaro, Jennifer Egan, Louis Begley, Francine Prose and the contemporary romance writer Laura Moore–to assess the book: the already classic telling of the scene in which the hang-dog President wakes his wife and confesses to the stunned and seething First Lady, as well as the section in which the two prepare for the cumbersome machinery of impeachment to be wheeled into place. Of course Living History is about politics, and of course its publication is a political act, but in this case the political is personal as well as fictional, at least in technique. Her opening line, "I wasn't born a First Lady or a Senator," surely could have opened any book by Fannie Hurst. And Senator Clinton's story is well wadded–"I wanted to wring Bill's neck," "I wore a glorious burgundy Oscar de la Renta creation," "If Mandela could forgive, I would try"–with the stuff of pulp fiction. James M. Cain, however, is not listed in the acknowledgments.
How does our panel of professionals rate her performance?
Senator Clinton is an excellent and thoroughgoing politician and not a novelist; her description of "the most devastating, shocking and hurtful experience" of her life is nowhere as moving or human as the legalistic vignettes of furtive partial pleasures in the Starr Report. Her surprise at her husband's belated confession is indeed surprising, as if they had never quite met before. But I loved the sentence, "I hadn't decided whether to fight for my husband and my marriage, but I was resolved to fight for my President." Her citizenship is ardent.
John Updike's most recent novel is Seek My Face (Knopf).
In any campaign biography, the writer–or her ghost–solicits sympathy for the campaigner while pretending to be telling the truth, the whole truth and nothing but the truth. Living History is no different. Hillary Clinton's moment of maximum public sympathy arrived when she became the woman scorned, and she has no intention of letting us forget it. "This was the most devastating, shocking and hurtful experience of my life," she writes. "I was furious and getting more so by the second," she writes. "[H]is eyes filled with tears. He had betrayed the trust in our marriage and we both knew it might be an irreparable breach." With these soapy sentences, Hillary reminds us relentlessly of her instant of greatest P.R. glory, the moment she stopped being too brainy, too brilliant, too adamantine and became, in the tabloids, just another betrayed wife. How pathetic that she has to twang our heartstrings in this cheesy way. Hillary Clinton has changed the role of First Lady for all time. Like Eleanor Roosevelt, her mentor, she has proved that the First Lady can be more compelling and empathic than the President. The woman is stronger than Queen Elizabeth I of England, a greater strategist than Catherine the Great of Russia, braver than Boadicea or the Amazons of old. And yet the demands of fame in America are such that she has to grovel to the appalling level of reality TV to get our undivided attention. The fault, dear readers, is not in Hillary, but in our ghastly mass media, which only applauds brainy women when we are reduced to tears.
Erica Jong's most recent novel is Sappho's Leap (W.W. Norton & Company).
LAURA MOORE
Dear Senator Clinton,
In my line of fiction, we call it the "black moment": the moment of crisis between the heroine and hero, when they discover that their love and trust are in jeopardy. You've done a great job, in Living History, of setting the scene for the key confession/confrontation, but if I may, I'd like to make a few suggestions to turn your story into a real "keeper" for your fans.
We need to feel your pain. The best romance novels wring every last drop of emotion as they expose the heartache of betrayal. Simply crying, yelling and saying you're furious won't make those pages turn and those readers' eyes moisten with tears of understanding and connection. You have to make us identify with you as a wife and lover. Let's see whether we can't open up this scene in the bedroom (terrific choice of setting, by the way) and let the reader share more fully in your thoughts, emotions and reactions when Bill drops the bomb.
My mind reeled from the blow of his softly stammered words. Stunned, I stared uncomprehending. A wave of dizziness assailed me and I thought I might be sick. Fighting against the sudden nausea, my fingers clutched at the bed sheets. A distant region of my brain registered the fact that here I was in our bed, the one Bill and I had shared countless nights, his warm, wonderfully familiar body pressed against mine. It had been a place of joy and refuge where we had lain and whispered dreams in the dark. Now it was horribly transformed into an icy field of lies. As though of their own accord, my hands released their hold to wrap themselves protectively about me as I shivered from the tears coursing down my cheeks, from the awful chill invading my heart. A scream of pain rose up inside me, and yet all I managed was a broken whisper. "Why, Bill, why? Why did you lie to me?"
He just stood there, his head lowered, unable to meet my eye, his shoulders slumped, looking like a sullen, naughty child. Perhaps I should thank Bill for that, for at that moment as I stared at him, rage hot and pure began coursing through my veins, spreading until it consumed every atom of my being. Bill must have sensed it, for he raised his head, his red-rimmed eyes finally meeting mine. "I'm sorry. I'm so sorry. I was trying to protect you and Chelsea."
Now, obviously we can't have Bill explaining too much here. That would take away from your story–and besides, your book can be a great marketing teaser so that next year we'll all rush out and buy Bill's take on the bedroom scene–but there's one more thing I feel could really enrich the emotional impact of the scene: forgiveness. Even the merest hint of it allows your reader to hope that maybe there's some way to get past this darkest moment of your marriage and your love. As you know, this is a challenging bit of writing, because you'll have to convince us that you found something redeemable in Bill, something worth saving in your relationship. But let's give it a shot. Let's try and open the door of your heart a crack, because, after all, that's what you did manage to do.
"I believed in you, Bill. We all believed in you." My throat, raw from pain, closed tight and I was unable to continue. I shut my eyes in despair. I couldn't bear to look at him. Not now, maybe never.
I heard the sound of his feet moving closer, the heavy muffled thud of his knees hitting the carpet as he dropped down next to the bed. "Hill …. " His whisper was an agonized plea. "Please, please, I need you. Now more than ever." I felt his head drop, its weight resting heavy against my thigh. I opened my eyes, and involuntarily my hand reached out, a feather brushing against his graying hair.
Unchecked tears flowed down his cheeks as he gazed at me. "You've always been strong where I was weak. Be strong for me now, Hillary …. If not for me, then for Chelsea …. "
Chelsea. The one truly wonderful thing our marriage had given us. Chelsea, our pride and joy. How this sordid affair would hurt her, a pain a thousand times greater than my own. "I don't know, Bill. I don't know if I can be that strong …. "
From outside the bedroom door, our dog, Buddy, gave a plaintive whine of distress.
I think we'll leave the suggestions at that. I'm sure you've got the gist. In closing, please let me add that I hope we'll have you and President Clinton back in the White House in 2008. The material W. is providing is far too scary to contemplate.
Laura Moore's latest contemporary romance novel, Night Swimming (Ballantine), was published in May.
This doesn't feel to me like the time to be making sport of Hillary Clinton–not when the far right, having essentially engineered a coup d'état, is busily reinventing America as a theocratic cloud-cuckooland, with suicidal economic, social and environmental policies and a mean streak so wide it would take a B-52 hours to fly across it, and with the mouth-breathing millions cheering them on. I'm a lot less dainty than I used to be when I couldn't bring myself to vote for a sellout like her husband. So I'm not the guy to give her book the ridicule it might deserve in better days.
Living History isn't an X-ray self-portrait, but a belated–or a be-earlied–campaign autobiography, as well as a moneymaking product calculated to save her hours and hours of paid speechifying. Since one recurring theme is her tendency to put her supposedly innocent foot in her mouth—"tea and cookies," "Tammy Wynette," "vast right-wing conspiracy"–it's understandable, maybe even commendable, that the book has been thoroughly gaffe-proofed, apparently with the help of the speechwriters, editors and friends whom she thanks in her copious acknowledgments. If her goal was to include nothing that might come back to bite her in the ass, she's done just fine. For instance, she doesn't come right out and say that if Ken Starr hadn't distracted the White House and Congress with the Monica Lewinsky nonsense, the Sept. 11 attacks would never have happened. But she sure lets you know it, by constantly juxtaposing President Clinton's prescient worries about Osama bin Laden with the Republican right's jihad against Mr. Clinton. It sounds a little sketchy, but I'm not dead sure she's wrong.
If I'd been her editor, I would have cut the sentence where she says: "My own approval rating was nearing an all-time high and would eventually peak somewhere around 70 percent, proving that the American people are fundamentally fair and sympathetic." And I might have urged her to lose the namedroppy stuff, where Stevie Wonder comes and sings her a song he just wrote about forgiveness, and Walter Cronkite takes Bill and Hill for a sail, and the Dalai Lama puts in his two cents. At Davos, she runs into Elie Wiesel and the missus, and he asks her, "What is wrong with America? Why are they doing this?" She says, "I don't know, Elie." Icky as this is, though, she undoubtedly was on a first-name basis with Elie and Stevie and Walt and Dalai. And they undoubtedly were nice to her. So what's she supposed to do, not say so?
About Mr. Clinton's sexual betrayals–the plural is mine, not hers–she's as forthcoming as you could reasonably expect. Her only comment on Gennifer Flowers' allegation that she'd had a long affair with Mr. Clinton is: "He told me it wasn't true." (End of sentence. End of paragraph. No halfway intelligent reader could miss the implication.) Similarly, she says a couple of times that her husband will have to give us his own explanation for what the hell he was thinking when he got involved with Ms. Lewinsky. And while Bill and Hillary went into marriage counseling after the affair became public, Hillary never tells us specifically what the upshot was–if there was a specific upshot–or even if they started sleeping in the same room again. Well, it's none of our business, really, and left to herself–to the extent any politician has a self–she might have told us so. But without at least dipping a toe into this swamp, she wouldn't have had a promotable book or, perhaps, a political career beyond the Senate. Which, I have to say, I hope she's got her beady eye on. Since she had to deal with the mess somehow, she's done a reasonably deft job of giving away not much of anything we didn't know. Did anybody, for instance, think she wasn't angry with Mr. Clinton? Would anyone have respect for her if she hadn't been? As rawly confessional as Living History is designed to seem, it's an artifact crafted by a politician and her team, and she doesn't give up a damn thing she didn't have to. Would you?
David Gates is the author of two novels and, most recently, The Wonders of the Invisible World: Stories (Vintage Books).
VINCE PASSARO
It's a decent bet that almost every day that Monica Lewinsky went down on Bill Clinton, bombs dropped somewhere in Iraq–and while he hardly ever got to climax, the bombs frequently did. Now that Hillary has spilled "all," that's one of many facts you won't see discussed in the stupefying reporting about her book. Nor, it occurred to me today while looking over "August 1998," the curiously affectless chapter on her "personal agony" that was much reported on after it was leaked to the Associated Press last week, are we going to be enlightened as to why Hillary voted in favor of our spectacularly mendacious little war in the Fertile Crescent, either.
All we get are her tears over the casual infidelities of a man who, by most credible accounts, hasn't kept it in his pants since the diapers came off.
Here's a news item for the media, for Simon & Schuster, and for whatever bizarre, salacious readership leads the publisher to believe this book needed a first print run of a million copies: It wasn't the Clintons' genitals that were so troubling, it was their brains.
But, of course, there's a lot of political cover in pointing our attention groin-ward. Perhaps that's why her book reads so much like the establishing scenes in a bad porn video.
August 1998 is when Bill Clinton testified to a grand jury via video what he then had to announce to the nation: He'd had a little action in the Oval Office. Hillary kindly reminds us that (just by coincidence, mind), "within hours of his statement about his personal transgression, the United States would launch a missile strike against one of Osama bin Laden's training camps in Afghanistan, at a time when our intelligence indicated bin Laden and his top lieutenants would be there."
This little arrangement, in which dire national-security requirements dovetail so perfectly with the political needs of a desperately underclad emperor, feels kind of familiar, doesn't it? But then, that's not an aspect of Hillary's now-famous chapter–the "personal revelation" of her "agony" (as opposed to the agony of so many others)–that we care to discuss much.
Vince Passaro's first novel was Violence, Nudity, Adult Content (Simon & Schuster).
Reading Hillary Clinton reminds me of how hard it is to pull off climactic, emotionally charged scenes without lapsing into cliché. Of course, there is frisson in the very idea of being secreted past the bedroom door to witness the moment when her husband, the President, admitted to her that he had fooled around with Monica L. after months of denying it. But the language Senator Clinton uses to render this encounter veers between legalese ("there had been an inappropriate intimacy") to familiar prose shorthand for heightened emotional states ("Gulping for air"; "I was furious and getting more so by the second"; "I was dumbfounded, heartbroken and outraged … ").
Clichés are a kind of literary Esperanto, recognizable to everyone in a vague, general way. Take out the names, and just about anyone could have written this stuff about anyone. That's why Ms. Clinton's answer to another much-pondered question back in 1998–how does Hillary feel about Bill now?–is so weirdly disappointing: "As a wife, I wanted to wring Bill's neck." The cliché blocks the gritty specificity of what went on between these two particular people; it actually obscures it. Which may be the point. Does she really want millions of readers to know how she felt when her husband confessed to yet another infidelity–one that might cost him his Presidency? I wouldn't.
As a writer, I try to look at clichés as a starting point. Early drafts of my work are lousy with them, in the same way that they creep into (cliché) so much spoken language without our even noticing. In the end, I try to isolate each one and ask myself: What exactly is this standing in for? The answers are usually interesting. I'd love to know Hillary Clinton's.
Jennifer Egan is the author of two novels and a collection of short stories.
LOUIS BEGLEY
We live in a decadent era that grows uglier by the minute. The spectacle of the media salivating in gluttonous anticipation of Senator Clinton's telling how she learnt from her husband the "truth" about Monica has been one more painful and shaming lesson in the abasement of the American public's taste as the media and publishers perceive it. Is it true that Hillary Clinton needed to let the entire world into her bedroom to justify an $8 million book contract? She had, after all, other useful and interesting information to impart, and she is an engaging and sometimes deeply moving figure. I readily imagine Kenneth Starr, Orrin Hatch, Tom DeLay and the other stalwarts of the great Presidential peep show in their viewing booths, shifting eagerly from foot to foot, ready to climax as Hillary and Bill undress. But are the rest of us just as depraved? If we are, I wonder whether Hillary Clinton shouldn't have settled for less money and written a book that did not delve into matters normally reserved for fiction and the transcripts of divorce proceedings. Peep shows are hardly ever worth the price of admission–a quarter? Fifty cents? I honestly don't know; the last one I attended–other than the Clinton impeachment proceedings, which came free on CNN–was in the early 50's, in smelly premises near Boston's Scollay Square. The price of the current one–$28, minus such discounts as Barnes & Noble, Amazon and other chains will grant–will seem like highway robbery to the prurient reader the media have postulated: Senator Clinton has, in fact, written with commendable restraint and modesty.
Louis Begley's seventh novel, Shipwreck (Knopf), will be published in September.
Even those of us who have given up the losing battle against the misplaced modifier and the dangling participle still believe that certain rules of English grammar are not optional, and that their importance is not merely linguistic, but philosophical and moral. One of these is the rule that says that to put dialogue between quotation marks signifies (unless you're writing fiction) that those words were spoken as written, and were transcribed directly from what we call real life. I've sometimes wondered if the increasingly common confusion about this simple relationship between truth and punctuation may be at the heart of some of the media's current problems with journalistic ethics and accuracy.
It's possible that, when Bill Clinton finally admitted to his affair with a White House intern, Hillary said, as she reports in Living History: "What do you mean? What are you saying? Why did you lie to me?" And it's possible that Bill replied: "I'm sorry. I'm so sorry. I was trying to protect you and Chelsea." It's likely that they said something like that, but unlikely that they said that, exactly. For one thing, it's very difficult to remember precisely what words we used in the past, unless we've uttered some fabulous bon mot. Which this is not. And it must be doubly hard to recreate the conversation that ensued when one's husband, the President of the United States, suggested that Ken Starr might soon tell the world how Monica Lewinsky was encouraged to get acquainted with a cigar.
But someone felt that we needed to hear (not merely hear about) this historic exchange, and that to dramatize it–to borrow from the rhythms and speech patterns of the afternoon soaps–would help us to feel like a fly on the wall. Or, as Senator Clinton's publishers must hope, one fly among millions on the wall. The result is that, reading the scene, you don't have to be a writer to think that you could have written it yourself. Which can only add to the sense of déjà vu and anti-climax that (despite the advance publicity and the tantalizing promises of heartfelt, steamy, tell-all revelation) readers may wind up feeling about Living History.
Which is as it should be. Because now that we're being routinely bombarded with so many big lies, it's hard to get excited about the little lies and the little exposures. It's just not as much fun as it used to be. Reading Living History feels like an exercise in a kind of bittersweet nostalgia that gets downright depressing as we try to imagine the equivalent we might get–but never will–from the current administration:
"I could hardly breathe. Gulping for air, I started crying and yelling at Donald and Dick and Condoleezza: 'What are you saying? Why did you lie to me? What do you mean, there were no weapons of mass destruction?'"
Filed Under: Home, Bill Clinton, Bill Clinton, The White House, Monica Lewinsky
SEE ALSO: Oscar Wiles: A Roundup of Delights, Disappointments

redpajama_set_name: RedPajamaCommonCrawl


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text:
Civil Appeal 3 of 2017
Mellen Mbera v James Theuri Wambugu [2020] eKLR
Mellen Mbera v James Theuri Wambugu
Court of Appeal at Kisumu
Erastus Mwaniki Githinji, Hannah Magondi Okwengu, Jamila Mohammed
(An appeal from the judgment of the Environment and Land Court of Kenya at Kisii (Mutungi, J.) dated 30th September 2016 in ELC Case No 260 of 2012)
History Docket No:
ELC Case No 260
History Judges:
John M Mutungi
History County:
Appeal dismissed
IN THE COURT OF APPEAL
AT KISUMU
(CORAM: GITHINJI, OKWENGU & J.MOHAMMED, JJ.A)
CIVIL APPEAL NO 3 OF 2017
MELLEN MBERA ……………………………………………….APPELLANT
JAMES THEURI WAMBUGU…………………………………RESPONDENT
(An appeal from the judgment of the Environment and Land Court of Kenya at Kisii (Mutungi, J.) dated 30th September 2016
ELC Case No 260 of 2012)
JUDGMENT OF J. MOHAMMED, JA
1. James Theuri Wambugu (the respondent) sued Mellen Mbera (the appellant) in the Land and Environment Court (ELC) at Kisii claiming to be registered owner of the property known as Transmara/Ololchani/863 (the suit property), having been so registered through a land adjudication process in the Ololchani section.
2. The respondent filed a plaint dated 2nd July, 2012 and claimed that in the month of March 2010, the appellant herein encroached onto that property and started to erect structures which resulted in the respondent being denied access and enjoyment of his property. The respondent complained to the area chief and thereafter to Kilgoris Police Station which resulted in the appellant being charged with the offence of forcible detainer in Kilgoris Principal Magistrate's Court Criminal Case Number No 263 of 2010. The appellant was found guilty of the offence and convicted. The respondent therefore filed the suit urging the court to order the appellant's eviction as well as to grant an order of permanent injunction restraining the appellant, either by herself or through her agents from entering or trespassing on the suit property. The respondent also claimed general damages for trespass as well as costs of the suit.
3. In her statement of defence, the appellant denied each and every statement made by the respondent. She claimed that the suit property belonged to her late father, Mochama Ong'ondo and that even if she had been convicted for the offence of forcible detainer, that did not deny her the right to her father's property. She stated that no matter the outcome of the criminal case, the suit property belonged to her deceased father, and as such, she could not have trespassed onto the suit property which the respondent had transferred to himself fraudulently.
4. The respondent gave evidence; stating that he had acquired the suit property through an adjudication process that culminated in the registration of the property in his favour. He produced documentary evidence to this effect and stated that despite the fact that the suit property was registered in his name, the appellant had entered the suit property in March 2010 and refused to vacate. He eventually took the matter up with the police and the appellant and her mother were charged in court and the appellant convicted of the offence of forcible detainer. Even after conviction, the appellant refused to vacate the suit property, prompting the respondent to file suit seeking an order of eviction directed against her.
5. The appellant testified that the suit property, which she described as plot number 2/58 belonged to her late father. She claimed that the structures on the suit property were erected by her late father before he died. She denied that the suit property belonged to the respondent and produced rates demand notes in respect of the suit property and stated that she had been paying rates to the Transmara County Council. Robert Mochama (Robert), the appellant's brother, also testified. He stated that the appellant was resident on plot number 2/58 but denied knowledge of any conviction for forcible detainer in any criminal proceedings.
6. After receiving evidence from the parties, the trial court delivered a judgment in which it held that the respondent was the registered proprietor of suit property, and that the property which the appellant claimed as belonging to her late father and which she described as Plot No 2/58 did not exist as it was not delineated on any map. The learned Judge also relied on the criminal proceedings and the conviction of the appellant, which had not been set aside on appeal, to find that the appellant was unlawfully in occupation of the suit property. The learned Judge rejected the claim for general damages, finding that no basis had been laid for this award, but entered judgment in favour of the respondent ordering the appellant to vacate and deliver vacant possession of the suit property to the respondent within sixty days, and, in default, an eviction order to issue against the appellant. In addition, the court gave an order of permanent injunction restraining the appellant from any dealings with the suit property.
7. The appellant who was aggrieved by the orders, preferred this appeal setting out various grounds which include that: the learned judge erred by failing: to appreciate the provisions of section 18 of the Land Registration Act; failing to find that the appellant had no locus to be sued on behalf of the estate of the deceased; relied on unsupported documents to reach his judgment; failing to properly analyse the evidence; and arriving at a judgment that was manifestly erroneous and amounted to a miscarriage of justice.
8. On the first ground of appeal, the appellant submitted that the trial court failed to appreciate the provisions of section 18 of the Land Registration Act, 2012 which makes it clear that a court cannot entertain an action relating to a boundaries dispute. In the appellant's view, the evidence showed that there were two parcels of land that were in dispute. These were the parcel of land she was claiming – known as Transmara/County Council/2/258 which is registered in the name of her deceased father, and the parcel of land known as Transmara/Ololchani/863 which the respondent was claiming.
9. It was the appellant's claim that, the trial court failed to consider that the registration of the two properties were overlapping and the true owner of the suit property could only have been determined through the process outlined in section 18 of the Land Registration Act. The appellant maintained that the trial court could not have been able to distinguish the exact location of the two parcels of land and could not make a proper determination as to who owns which property without guidance from section 18 of the Land Registration Act. It was the appellant's further contention that the suit was defective as the respondent should have first sought a solution to the boundary dispute, and with this, demonstrated the manner in which he acquired the property. In her view, the fact that this did not happen was an indication that the respondent had the property registered in his name through fraudulent means.
10. In response to this ground of appeal, the respondent urged us to note that this was the first time that the issue of section 18 of the Land Registration Act was being brought up. He urged us to consider that the appellant filed her list of agreed issues for determination before the trial court and at no point did she indicate that the dispute between the parties was a boundary dispute. Submitting that parties are always bound by their pleadings, the respondent contended that the appellant cannot blame the trial court for failing to consider what was not raised in the pleadings or framed for consideration.
11. The respondent further submitted that there was no evidence that the two parcels of land overlapped each other as claimed, or that they even shared a boundary. He urged us to consider that in the criminal proceedings in which the appellant was charged, the allegation that her parcel number, then described as parcel number 2/258, was sharing a boundary with the suit property was rejected. The respondent submitted further that if an appeal was filed against the judgment in the criminal case, the appellant never brought this to the attention of the court, and in any event, an appeal per se does not suspend or operate as a stay of the determination of the court.
12. The respondent averred further that it was the duty of the appellant to prove that section 18 of the Land Registration Act was applicable to the case before the trial court, and prove the existence of the boundary dispute. She failed to do this; and could now not raise it in her submissions which is neither evidence nor pleadings.
13. It is beyond question that parties are bound by their own pleadings. This Court in David Sironga Ole Tukai v Francis Arap Muge & 2 Others (2014) eKLR held that:
"The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice. (emphasis ours)
14. I agree with the respondent's assertion that the appellant never raised the issue of a boundary dispute between her and the appellant. In fact, her defence sets out the grounds upon which she opposed the suit, and this included claims that the suit property belonged to her father, that she was not a trespasser and the registration of the suit property in the name of the respondent had been done through fraud.
15. Having failed to raise the issue of a boundary dispute at the trial court, the respondent cannot fault the trial court for failing to consider it. I am fortified in this finding by the sentiments of this Court in David Sironga Ole Tukai v Francis Arap Muge & 2 Others (supra) that:-
"[i]t is well established in our jurisdiction that the court will not grant a remedy, which has not been applied for, and that it will not determine issues, which the parties have not pleaded. In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way. And it is for the purpose of certainty and finality that each party is bound by its own pleadings. For this reason, a party cannot be allowed to raise a different case from that which it has pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial as each knows the other's case is as pleaded. The purpose of the rules of pleading is also to ensure that parties define succinctly the issues so as to guide the testimony required on either side with a view to expedite the litigation through diminution of delay and expense"
This ground of appeal therefore fails.
16. The appellant claimed that the registration of the property in the name of the respondent was procured through fraud. The respondent on his part submitted that the process of adjudication that led to him being registered as the owner of the suit property was proper, and stated that neither the appellant nor her father ever objected to his being allotted the suit property during the process of adjudication. Moreover, there was no evidence of any fraud on the part of the respondent. It is trite law that any allegations of fraud must be pleaded and proved. In Vijay Morjaria v Nansing Madhusingh Darbar & Others [2000] eKLR (Civil Appeal No 106 of 2000) Tunoi JA rendered himself on this issue as follows:
"It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts."
17. In Nyangate Guto alias Watson Mogere Mogoko v. Maxwell Okemwa Mogoro & National Bank of Kenya Ltd, this Court stated as follows regarding the standard of proof required in instances where fraud is alleged:
"8. As they are serious allegations, the onus is on the party alleging fraud to provide evidence to the court that rises to the standard of proof which was underscored by this Court in Central Bank of Kenya Ltd vs. Trust Bank Limited & 4 others [1991] eKLR Civil Appeal No. 215 of 1996) as being beyond that of a balance of probabilities. In that appeal, the court rendered itself as follows:-
"The appellant has made vague and very general allegations of fraud against the respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the appellant in this case than in an ordinary civil case."
See: Nancy Kahoya Amadiva V. Expert Credit Limited and another [2015] eKLR.
18. Order 2 Rule 10 of the Civil Procedure Rules, 2010 requires that every pleading shall contain particulars of any fraud that the party intends to rely on. It is clear that the respondent merely made an assertion claiming that the respondent fraudulently procured registration of the suit property in his name, but failed to indicate to the court what the particulars of the fraud were. In the result, I am constrained to find, like the trial court did, that there was no basis to show that the title document was unlawfully issued to the respondent and as such her allegations of fraud were neither properly pleaded nor proved.
19. I have also considered whether the appellant should have been sued on behalf of the estate of her deceased father, Mochama Ongondo instead of being sued in her own capacity. The appellant submitted that since the property in question belonged to her deceased father, and she was resident on the property as a beneficiary to his estate, the proceedings against her should have been instituted as a legal representative of the deceased, and not in her personal capacity. The respondent submitted that this was a baseless allegation as he made the claim against the appellant since she was the one who trespassed onto his property and was the one convicted for being unlawfully on the suit property.
20. I agree. The appellant did not demonstrate that the suit property belonged to her deceased father. She produced a demand note for ground rent in respect of rates payment for plot number 2/58 which was dated 5th October 2012 in the name of her deceased father. However, this was not an indication that her father was the true owner of the suit property and we agree with the trial court's sentiments that:
"The defendant has not shown that she is in occupation of the suit property as a beneficiary of her deceased father. There is absolutely no evidence pointing to the defendant's deceased father as having been the owner of Plot No 863 Ololchani. The evidence by the defendant is that her father owned Plot No 2/58 Kilgoris Town which cannot be the same as Plot No 863 Ololchani which the plaintiff acquired through land adjudication."
21. The appellant's final submission was that the trial court failed to evaluate the entire evidence placed before him. On this, the appellant submitted that the trial court failed to appreciate that the appellant could not have been sued in her name, and further that the respondent failed to produce the land adjudication record as required in law. She further contended that the trial court failed to appreciate the evidence of the clan elder who assisted the deceased purchase the suit property and build on it. The appellant submitted that the trial court did not have occasion to record the evidence of the respondent and therefore failed to appreciate the evidence placed before him. In response to this ground, the respondent submitted that he produced various documents before the court all of which were admitted by the court and which served to prove his case.
22. I have carefully considered this submission alongside the record of appeal. The respondent's testimony set out the circumstances under which he came to be the registered proprietor of the suit property. he testified that an adjudication process in Transmara County begun in 1984 and ended on 1st February 2006 when he was informed by the adjudication officers that the suit property had been adjudicated in his favor. He produced documents to this effect, and showed that thereafter, he was registered as proprietor of the suit property and obtained title on 19th October 2010. The respondent was the first registered owner of the property and his title is indefeasible unless the circumstances in section 25 and 26 of the Land Registration Act are complied with. The rights of a first proprietor acquired on first registration are indefeasible under Section 25(1) of the Land Registration Act which provides that:
Rights of a proprietor.
25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act,…"
23. Further to this, section 26(1) of the Land Registration Act provides that a certificate of title is evidence of ownership by the person named therein as the proprietor, and provides the circumstances under which such a title may be defeated. That section reads as follows:
Certificate of title to be held as conclusive evidence of proprietorship.
26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, 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.
24. As I have noted herein above, the appellant failed to show that the respondent had secured registration of the suit property through fraudulent means. Even in the evidence led in support of her case, the appellant simply stated that her father's property was parcel number 2/58 and that she had occupied the same as his beneficiary. Her younger brother Robert reiterated that the appellant was in occupation of plot number 2/58. This evidence did nothing to cast doubt as to the respondent's ownership of the suit property.
25. This Court's duty on a first appeal was repeated in Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR (Civil Appeal No. 161 of 1999) in the following manner:-
"This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way."
I have re-evaluated and re-analysed the evidence led before the trial court and our analysis of the evidence shows that the respondent proved his case to the required standard, and that the learned judge was therefore right in rejecting the defence of the appellant. Thus, this appeal has no merit and I hereby order it dismissed with costs to the respondent. The orders made by Mutungi J. shall therefore stand and take effect from the date of this judgment.
Dated and Delivered at Nairobi this 3rd day of April, 2020
J. MOHAMMED
JUDGE OF APPEAL
I certify that this is a true copy of the original.
JUDGMENT OF OKWENGU, JA
I have read in draft the judgment of J. Mohammed, JA. I concur that this appeal has no merit. The learned Judge of the Environment and Land Court properly identified and addressed the issues. The appellant failed to prove her allegations of fraud, nor did she prove that the suit property belonged to her deceased father.
I am in agreement with the analysis and reasoning of J. Mohammed, JA and have nothing further to add.
The appeal is therefore dismissed with costs.
This judgment is delivered in accordance with Rule 32(3) of the Court Rules.
DATED and delivered at Nairobi this 3rd day of April, 2020.
HANNAH OKWENGU