[2016] KEELC 393 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

ELC CIVIL CASE NO. 140 OF 2004

ABDALLA NGINYANGA JUMA……………………….....…….PLAINTIFF

-VERSUS-

1. ZAMAL NOOR MOHAMED YUNIS (Sued as legal representative of

NUR MOHAMED YUNIS KANA – DECEASED

2. W. F. HIME & P. A. ZIMERLINE t/a HIME & ZIMERLINE

3. THE ATTORNEY GENERAL………………...…………DEFENDANTS

JUDGEMENT

1. The plaintiff Abdalla Nginyanga Juma commenced this suit on 28th May 2004 against the defendants. The defendants entered appearance and filed their defences on diverse dates. Later on 3rd April 2007 the plaintiff withdrew suit against the Attorney General (3rd defendant). However in the amended plaint now dated 7th August 2008, the Attorney General is still named as a 3rd defendant.

2. The plaintiff at one time proceeded exparte and obtained judgement on 15th February 2008. The judgement was subsequently set aside and the case heard on merits. The plaintiff’s evidence was taken by J. B Ojwang J. (as he then was) on 5th November 2009. Upon being sworn, he stated that he is a marine engineer. He lives in Majengo in Mombasa. He remembers 1982 he bought two plots in Mtwapa from Mrs Tobana.

3. The plots were shown to him and they entered into a sale agreement which was reduced into writing on 17th February 1982. The plot number was 539 (original 397/7/311) and the plots were unsurveyed. The plaintiff continued that he was introduced to a surveyor (The 2nd defendant) who is based in Mombasa. That he visited this land many times. He produced the sale agreement as Pex 1.

4. It is the plaintiff’s evidence that the 2nd defendant wrote to him on 1st June 1986 advising him that the deed plans were ready. He went and took the original deed plans and signed for them. That he kept these original deed plans safely and never gave them to anyone. Later he was given a letter of consent from the Land Control Board – Kilifi. He followed the applicable procedures and was later issued with the title deeds for plot No 921 and 922. He produced photocopies. The plaintiff avers that he has not sold these plots to anyone.

5. The original deed plans are produced as Pex 21 & 22. The plaintiff states that he took possession of the plots. That currently each plot has a house now and therefore he went to the surveyor (2nd defendant) to ask about the houses. He also went to see Mama Tobana who told him she could give him other plots which he replied that he only wanted his plots. He therefore filed this suit asking for the competing titles to be cancelled. He also sought damages for trespass and an order for the buildings to be removed plus the costs of this suit.

6. The plaintiff was put to cross examination. He said he bought the land in February 1982 and later he applied for the Land Control Board consent. That Mama Tobana was handling the issue of the consent. That being a marine engineer he used to travel long distances and could be away for even 10 years. He continued that he learnt in 1990 that someone was building on his land. He asked Mama Tobana and expressed his intention to sue. He instructed two lawyers who failed to perform. That the agreement did not mention there were two plots sold but the consents were two.

7. In re – examination, the plaintiff stated that the consents were obtained to enable Mama Tobana to sell. That he did not buy plot No 921 and 922 but the numbering was given subsequently. He bought this land with understanding that he was the only one with a title deed. That Zimalin (2nd defendant) never called him to say that his title deed was lost. With this evidence the plaintiff closed his case.

8. The parties having taken directions agreed to continue with the trial of this matter from where it had reached. I took over the case and heard the 1st defendant’s case when he testified on 23rd November 2015. The 1st Defendant’s witness was Zamil Noor Mohamed. He is the administrator of the 1st defendant who passed away on. The witness was issued with grant of letters of administration on 18. 8.2003 a copy of which was produced as Dex 1.

9. DW 1 testified that he knows the plaintiff is claiming he bought this land. The two plots are developed with buildings on it. According to his evidence, the plots were bought by his father in 1993 from Hamis Salim Kombo and he produced an agreement dated 11. 11. 1993 which was produced as Dex 2 (in respect of plot 921). He said he was not able to trace the agreement in respect of plot No 922, but had supporting documents that it was bought at Kshs 120,000=. He continued that his father obtained title deeds for both plots in 1995.

10. He also obtained transfers for both plots which have deed plans. He produced the title deeds, deed plans and transfers as Dex 3 & 4. He stated that they also received consents of the Land Control Board. That the plaintiff is alleging to have bought the land from Tobana Bashek the administrator of Mwana Hulu bin Salim as per the plaintiffs’ agreement is dated 17. 2.1982. The mother title was No 539/141/111/MN which he saw. Kobana passed on and he does not know the administrator.

11. The witness stated that he got a copy of the mother title in 2003 from a grandson called Abdul Razak. That on 6. 1.1995 an entry was made on the mother title for plot No 921 and entry No 205 was made on 8. 11. 1995 was made for plot No 922. The witness continued that the original owners were three (3) and Kobana was one of them. The title had an entry No 47 where Tobana is indicated as administrator of Mwana Hulu bin Salim entered on 8th December 1983.

12. That this land was partitioned on 18. 10. 1994 between Kobana and Tobana. The 1st defendant says they bought from Kobana after the partition. That when they bought the plots, Kobana did not have original deed plans saying they were lost. He instructed surveyors to prepare fresh ones as per the letter dated 23rd September 1994 and produced as Dex 5. He also had a letter from DAL Surveys dated 23rd November 1994 relating to plot No 921 produced as Dex 6 and an affidavit sworn by Kobana produced as Dex 7.

13. . DW 1 continued that he got a letter from Karimbhai dated 5th July 1995 in respect to deed plan for plot No 922 and the affidavits of Kobana produced as Dex 8 & 9. Thereafter they received certified copies of the deed plan and made payments as evidenced by receipts produced as Dex 10 (a) & (b). He stated that he did not know that the plaintiff had the original deed plans for the suit plots. He continued that the plaintiff’s entry was made on 10. 12. 2002 i.e. No 229 and 230. That is when the plaintiffs received the titles.

14. The 1st defendant continued that he was not aware their titles were cancelled. His father got his titles in 1995 while the plaintiff received his in 2002. He produced the mother title as Dex 11. He disputed the allegation that they obtained their titles fraudulently. He asked the Court to cancel the plaintiff’s titles and award him costs of the suit. That when he did a search on 4th November 2009, it showed his father was still the registered owner. The searches were produced as Dex 12 & 13. They got the approved plans to develop the plots on 4th November 1998 produced as Dex 14 (a) & (b) and by 2002 they were already developing the plot.

15. On cross – examination by Mr Oddiaga for the plaintiff, the witness said he was not involved in the survey exercise neither did he pay the survey fee. While buying, they were shown the plots minus the deed plans. He stated that he owns plot No 920 which his father bought before plot No 921 & 922. He has not seen the plaintiffs’ deed plans. His deed plan is dated 15th December 1994 No 126015 while the plaintiffs’ is dated 21st May 1986 bearing the same No 126016. Deed plan for plot No 922 is 21. 5.1986 No 126016 and it has another date 31st December 1996 when it is certified as true copy.

16. That it appears these deed plans were reported lost yet they were available. The mother title was subdivided into several plots and each party would receive his title once they received a deed plan. And that it would be wrong for a party to be given a deed plan of another. That the plots 921 & 922 belongs to the person who owns the original deed plans. He did not see the letter of Zimalin denying the existence of the duplicate deed plans.

17. In re-examination, he said the person who alleged the deed plans were lost was Kobana & he the one who swore an affidavit to that effect. The person who certified the duplicate was the director of surveys. When they bought, they did not know someone else held original deed plans. They do not bear any blame. This marked the close of the 1st defendant’s case.

18. The parties then filed rival submissions. The plaintiff submitted that the claim against the Attorney General was never defended. That his claim is a pleaded from paragraph 5 – 14 of the amended plaint. The plaintiff’s submissions gave the summary of the evidence presented on how he acquired the suit property. That there was no way the deed plan for plot no MN/III/921 and 922 could be for another person other than the plaintiff. That certified copies of the deed plans were irregularly obtained. He submitted that the defendant’s exhibits were of no consequences since they were based on the certified copies. He urged the Court to allow his claim as contained in the amended plaint and dismiss the defendant’s counter – claim with costs.

19. The 1st defendant also opened his submissions by giving a summary of what is claimed by the plaintiff as contained in the amended plaint and what is claimed by them as contained in their counter – claim. I need not copy or reiterate the facts/evidence as set forth in the submissions as I have summarised them above. The defendant added that the plaintiff did not prove how the land which is 0. 0918 acres could result into two bigger subdivisions of about 1. 82 acres. That the plaintiff also did not explain why it took him twenty (20) years to transfer the suit properties into his name if at all.

20. The defendant also submits that when the plaintiff purchased the property described as plot No 539 ORIG 2397/7/III M.N in 1982, it was registered in the names of Toban Bin Basheikh (as administrator of Mwana Ulu) and Kobana Salim Hamisi. Therefore Toban could not legally and validly sell the subject portion without the consent of Kobana Salim who held an equal undivided share. On this, they relied on the case law of Satima Peak Farmers Ltd vs Onesmus Weru & 4 Others (2013) eKLR. In that case the 1st defendant referred to this quote “one or two co-owners cannot act to sell the property to the exclusion of he other and none of the co-owners has the power to sell unless the power is exercised unanimously by all registered co-owners…….In the present case we hold that since the sale agreement was not signed by all the 3 co-owners, there was no valid agreement to effect sale and transfer of the suit property. A transfer can only be effected with the signature of the registered proprietors….”

21. The 1st Defendant further submits that they have proved that the deceased is the owner of the suit properties. To support this submission, they relied on the case law of Charles Ogejo Ochieng vs Geoffrey Okumu (1995)eKLR which quoted the provisions of section 23 (1) of the RTA that certificate of title is to be taken as conclusive evidence of the proprietor. The 1st defendant submitted also that no allegation of fraud was proved on the part of the deceased. That the plaintiff merely pleaded fraud but did not give any evidence to support his pleadings on the issue of fraud. That it is not enough for a party to plead fraud. On this, they quoted Ali Mbwana & 11 Others vs Mohamed Ali Askul (2015) eKLR.

“We understand this holding to mean that the learned Judge found no proof of fraud on the part of the respondent…….”In our own assessment of the matter and bearing in mind the definition of “fraud” in the Registration of Titles Act and standard of proof required we come to the same conclusion as the learned judge that, apart from merely listing particulars of fraud, the appellants did not present any evidence of fraud either in their pleadings, reproduced earlier, or in evidence….”

22. Lastly the 1st defendant submitted on the effects of entries made by the 3rd defendant on the mother title in favour of the plaintiff. The 1st defendant narrated that the plaintiffs deed plans were registered on 10. 12. 02 vide entries Nos 229 and 230. That this was after the 1st defendant’s title were issued on 6th January 1995 and 8th November 1995. That the plaintiff obtained his titles knowing well that the title deeds to the suit properties had been issued to the 1st defendant therefore his action was illegal, irregular and/or an act of fraud. He quoted the case of Benjah Properties Ltd vs H. H. Dr Syedna & 4 Others (2015) eKLR. For these reasons, the 1st defendant urged the Court to dismiss the plaintiff’s suit and grant them orders sought in the counter – claim.

23. I have analysed the pleadings, the evidence adduced and submissions rendered. The issues I find not to be in dispute are the following :

i) Both the plaintiff and the 1st defendant bought portions of L. R 539/III/MN which turned out to be plot Nos 921 and 922 now in dispute.

ii) The two parties purchased from different vendors and at different times to wit the plaintiff in 1982 when the plot was still unsurveyed while the 1st defendant in 1993.

iii.) Similar numbering of the deed plans was used by both parties to acquire their titles i.e Deed plant No 126015 and 126016 respectively.

iv) The plaintiff was in possession of the original deed plan while the 1st defendant used certified copies of the deed plans to secure his titles.

v) The plaintiff secured registration of his title deeds on 10. 12. 2002 while the 1st defendant acquired his registration on January & November 1995.

vi) The plot is developed by the 1st defendant.

vii) The searches produced shows the 1st defendant is still the registered owner of the suit property as at 2009.

24. The issues in dispute and therefore for my determination are ;

a) Whether the registration of the 1st defendant was obtained by fraud therefore null and void.

b) Whether the subsequent registration of the plaintiff in 2002 was lawfully procured thus he is entitled to the orders he seeks.

c) Which of the two parties are entitled to retain registration and possession of the suit parcels 92/III/MN and 922/III/MN.

d) Who is entitled to the costs of the suit.

25. Starting with the issue whether registration of the 1st defendant was obtained by fraud, the defendant in his evidence stated that they followed due procedure in acquiring registration. He began by saying that his father purchased the suit plots on 11th November 1993 for Kshs 160,000 and 120,000 respectively. He also produced transfers forms and deed plans as Dex 3 & 4 that enabled them to secure their title deeds. The defendant stated that they received the respective Land control board consents for both plots. He also produced an affidavit sworn by Kobana dated 5th & 6th July 1995 deposing that the original deed plans were lots. I was not able to trace the said affidavit but a letter dated 26th September 2003 from the ministry of Lands and addressed to Mr P.A Zimmerlin, the 2nd defendant confirmed there was an affidavit to this effect. The issue of the existence of this affidavit was also not contested.

26. The consent letter produced by the plaintiff is in respect of plot referred to as original No 539/III/MN measuring 0. 0918 acres and issued on 28th January 1983. The consents to the 1st defendant were issued on 25th November 1993 and on 26th June 1995 respectively. The transfer for plot No 921 bears date of 6th January 1995 when it was received in the District land registry Mombasa while 922 was received on November 1995. Certificate of title deeds were thereafter issued to the 1st defendant. By this time, the plaintiff had not presented his documents for registration. The plaintiff’s complaint is that his land was taken away using certified copies of the deed plans when the originals were in his possession. The defendant on his part stated that when he was shown the land, he was told the original deed plans were lost. That the vendor went ahead to swear an affidavit confirming loss as a result of which certified copies were obtained. Therefore on the face of it the documents the 1st defendant used to obtain his titles were in order.

27. Original deed plans by itself is proof of ownership of a plot. The plaintiff’s documents show that at the time he purchased the plot, it was unsruveyed and not beaconed. This is the description given in the sale agreement. Secondly the consent to transfer obtained was not in respect of the suit plots but the plot No 539/III/M.N. As at the time of purchase by the plaintiff, the title had not been portioned. It was owned as tenants in common in equal shares. The instrument of partition was registered on 19th October 1984 between KONANA SALIM & MOZA BINTI TOBAN BINTI BASHEIK as administrator of the estate of MWANA ULU – DECEASED to own the unshaded areas shown on development plan No MK19/1 and MK/19/2.

28. Unfortunately the plan showing the unshaded area was not made available to this Court by either of the parties. When the plaintiff first approached Toban about interference with his plots, mama Toban offered to give him alternative plots. The plaintiff was therefore under a duty to demonstrate to this Court that plots Nos 921 and 922 did not fall on the portion partitioned and taken by Kobana. This would have been done by calling the person who sold him the land or her representative. The second duty on the plaintiff to show that the 1st defendant was a party to the fraud he alleged. Probable by leading evidence to show that the 1st defendant ought to have known that he held the original deed plans. The deed plans did not bear any name other than name of the surveyor who prepared them and the date of 21st May 1986 when it was issued. The law of evidence is that he who alleges a fact must prove (section 107 and 108 of the Evident Act Cap 80). In the case of ALI MBWANA supra held in case that proof of fraud must be done above the standard in civil proceedings. The plaintiff however did not show this Court how the 1st defendant ought to have known these were his plots and that he held the original deed plans. His long absence due to the nature of his job could not assign the blame on the 1st defendant. The 1st defendant has not been proved to have been a party to the fraud as provided in section 23 of the Registration of Titles Act (repealed).

29. The second question is whether the registration of the plaintiff in December 2002 had any effect on the titles earlier issued to the 1st defendant. (This is in respect to the claim contained in the 1st defendant’s counter – claim). The plaintiff presented original deed plans and consent from the control Land Control Board, Kilifi dated 28th January 1983. The letter of consent is in respect of L. R No 539 Original 397/7 Sec III MN. It referred to sale of sub-divisions of 0. 0918 acres Re. HZ 009/C Sub/of 170A from Tobana Rasheikh to Abdalla Nginyanga Juma.

30. In this Court’s opinion, the plaintiff’s documents presented for registration on 10th December 2002 were incomplete as the letter of consent was not in respect of the suit plots. I also did not find copies of transfers signed by the vendor used to register the plaintiff. The documents were also presented about twenty (20) years after the sale agreement was drawn and ten (10) years after the 1st defendant had acquired title for the suit plots. Section 24 of the Registration of Titles Act Cap 281 (repealed) provided that:

“Any person deprived of land or of any interest in Land in consequence of fraud or through the bringing of that land under this Act or by the registration of any person as proprietor of the land or in consequence of any error or misdescription in any grant…….may bring and prosecute an action in law for the recovery of damages against the person upon whose erroneous registration was made or who acquired the title to the interest through fraud or error or misdescription”. Further section 60 of cap 281 requires the registrar to summon a person to whom a grant has been fraudulently or wrongfully issued to deliver it up for purposes of being corrected. If subsection (2) provides that if the person neglects to appear, the registry may apply to Court to issue summons to that person. Section 61 cap 281 confirms that upon the person appearing before the Court, and still refuses to deliver up the documents, the Court may examine that person on oath or affirmation. The Court then directs the registrar to cancel the title or correct any certificate of titles or other instrument.

31. These provisions of cap 281 have been replicated in section 79 (4) and 80 of the Land Registration Act No 3 of 2012. Their import being that before the plaintiff could be registered as owner of the suit plots; he needed to move the registrar for cancellations of the 1st defendant’s title as provided in the Act. Instead he applied to also be registered which then resulted into double registration of the suit plots. Priority of registration is given under section 28 of CAP 281 (repealed) which states that “…Instruments registered in respect of or affecting the same land shall be entitled to priority according to the date of registration not the date of instrument.” The registration of the plaintiff on 10th December 2002 without an order of the Court was thus unprocedural and of no consequence. He came to Court (filing this suit) after the action of registration. Therefore until he proved his case, legally the 1st defendant remained the registered owner of the suit properties/plots.

32. The last and difficulty question is who between the 1st and the plaintiff is entitled to be the lawful registered owner of the suit plots? Both parties purchased the plots for valuable consideration. The plaintiff was the first to buy. The 1st defendant secured registration first in 1995. He subsequently put up buildings on the suit plot. The effect of his registration is that the land was conferred to him by Section 23 of cap 281 (repealed) that certificate of title is to be held a conclusive evidence of proprietorship. The same can only “be challenged on the ground of fraud or misrepresentation to which he is proved to be a party to.”I have found above that the plaintiff did not prove that the 1st defendant was a party to the fraud of obtaining certified copies of the deed plans.

33. Secondly the plaintiff also slept on his rights. Equity aids the viligant not the indolent. The plaintiff was the first in time but he failed to take physical possession of the suit plots so as to bar interest in future buyers. Thus having failed to establish fraud on the part of the 1st defendant, and the defendant having developed the plots the Court is satisfied and finds for the 1st defendant to retain the registration of the two plots 921 and 922. In the absence of originals, certified copies are as good as originals to have been used to confer title to the 1st defendant.

34. In the amended plaint, the plaintiff also sought for general damages against the 1st and 2nd defendants for fraud and wrongful occupation. This prayer fails for failure to establish any fraudulent acts of the 1st and 2nd defendants. Further I have found the 1st defendant is entitled to retain the plots hence no damages can accrue for wrongful occupation. There was also a claim for general damages against the 2nd defendant for professional negligence. The person who swore the affidavits that the original deed plans were lost was Kobana. He was not joined to these proceedings. There was no evidence of collusion between the 2nd defendant and the said Kobana placed before this Court. From the plaintiff’s own exhibits (Pex 1, 2, 3 and 4) demonstrated that the 2nd defendant did his part as a surveyor and handed over the original deed plans on completion of his work. I find no reason to order the 2nd defendant to pay any damages as none was proved. I find therefore that the plaintiff did not prove his case against the defendants. The same is hereby dismissed.

35. I find for the 1s defendant as contained in paragraphs a) – d) of the counter – claim on the basis of reasons contained in the body of this judgement. Lastly on costs, I find that each party bear their respective costs. Although the 1st defendant succeeded in his claim, costs is a discretion of this Court. The plaintiff has lost his money/plots. It is inequitable to order him to again pay further cost.

Signed and delivered at Mombasa this 1st November 2016.

A. OMOLLO

JUDGE