[2021] KEELC 1832 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC SUIT NO.706 OF 2017

ABDILLAHI KARIUKI ADAM..............................................PLAINTIFF

VERSUS

SAMUEL NDUNGU NGAMAU..........................................1ST DEFENDANT

THE LAND REGISTRAR THIKA.....................................2ND DEFENDANT

LUCY WAMBUI GITHINJI................................................3RD DEFENDANT

HON.ATTORNEY GENERAL............................................4TH DEFENDANT

JUDGEMENT

By a Plaint dated16th August 2017,and filed on17th August 2017,the Plaintiff herein sought for Judgement against the Defendants jointly and severally for; -

a) A declaration that Plot No. Ruiru West Block 1/1267 belongs to the estate of Adam Kimani Mumin Alias Adam Mumin, the Plaintiff’s father.

b) An order cancelling and/or revoking title deed for Plot No.Ruiru West Block 1/1267, illegally registered in the names of Lucy Wambui Githinji,the 3rd Defendant.

c) Defendants to pay Costs plus interests.

d) Any other relief that the Court deems fit to grant.

In his statement of claim, the Plaintiff stated that he brought this suit on behalf of the Estate ofAdam Mumin (deceased) by virtue of a Limited Grant of Letters of Administration Ad litem. He averred that in 1973, his late father

Adam Kimani Mumin,AliasAdam Mumin(deceased) became a shareholder ofGithunguri Ranching Co. Limited,vide share certificateNo.2697and was issued with a clearance certificate and on22nd September 1992, he was issued with an allotment letter number 7098/VII/235.

He further averred that sometimes in2003,the 1st Defendant in collusion with the 2nd Defendant fraudulently caused the land to be transferred to the 1st Defendant. He particularized fraud thus;

1) Forging share certificate dated19th October 1973,in the names of Chege Waweru.

2) Forging a survey fees receipt dated 4th July 1973 for survey fees in the names of Chege Waweru.

3) Forging a ballot card number 1267.

4)Causing the subject plot of land to be illegally transferred and registered in the name of the 1st Defendant without requisite transfer documents from Githunguri Ranching Co. Limited.

5)Colluding with the Land Registrar to be issued with title deed without proper legal documents for such a transaction.

It was his contention that after lodging a claim with Githunguri Ranching Co. Limited,it was resolved vide a verdict by Directors of the Company on7th July 2017,that the 1st Defendant could not explain how he purchased the suit property fromChege Waweru, a copy of share certificate produced by the 1st Defendant, had no share certificate number and Plot No. Ruiru West Block 1 is aleaseholdarea not aFreehold,and theFreeholdtitle issued toSamuel Ndungu Ngamauwas fake.

It was his further contention that the registration of the 3rd Defendant as the owner thereof should be cancelled.

The suit is contested and the 1st Defendant filed a Defence on 18th September 2017, and averred that he purchased Plot No.Ruiru West Block 1/1267,in 2001 from oneChege Waweru, after conducting due diligence atGithunguri Ranching Co.Limitedoffices upon production of Survey Fees receipt dated14th July 1973, ballot card number1267,and original share certificate ofChege Waweru. Further that in 2002 he obtained a clearance certificate forPlot No. Ruiru West Block 1/1267to enable him process a title deed and in2005,he sold the said property to oneLucy Wambui Githinji,the 2nd Defendant.

It was his contention that the suit property was approved as a freehold interest, instead ofleaseholdinside the history of land and settlement letter dated29th September 1998. He further contends that there is no Privity of Contract between himself and the Plaintiff’s father, as he is an innocent purchaser for value, having purchased the said plot fromChege Waweru.

3rd Defendant also filed her statement of Defence on19th September 2017,and averred that she purchased the suit property from the 1st Defendant vide a sale agreement dated19th August 2004,and prior to entering into an agreement for sale, he obtained a copy of the title deed and conducted an official search at the Thika Land’s Office. She further averred that prior to the said transaction, the 1st Defendant supplied her with copies of clearance certificate issued to him byGithunguri Ranching Co. Limitedand a letter from the Ministry of Lands dated29th September 1998. On or about the2nd June 2017, she was summoned to theOCS Ruiru Police Stationand accused of having falsely obtained land registration. It was her contention that theOCSdismissed them without making entries in the OB, and the same ought to be decided or followed up byGithunguri Ranching Co. Limited.

The 2nd and 4th Defendants filed a statement of Defence on15th May 2019and vehemently denied allegations raised in the Plaint and the Plaintiff ought to be put to strict proof onfraudrelated issues as raised in his claim.

The matter proceeded by way of viva voce evidence on8th July 2020.

Plaintiff’s Case

Pw 1- Abdillahi Kariuki Adamadopted his witness statement as part of his evidence. He further testified that his fatherAdam MuminaliasAdam Machariagot the share certificate in1973, the clearance certificate on15th September 1993,and an allotment letter in1992. He further testified that upon finding out that the land was grabbed, he raised a complaint atGithunguri Ranching Co. Limitedand the Defendants were summoned.

It was his further contention that there was a verdict byGithunguri Ranching Co. Limitedsigned by all the Directors of the Company. Further, oneSamuel Ndungu Ngamauwas arrested and charged with different counts, but the matter is still pending in Court. He adopted his list of documents as Exhibit 1 and further list of documents as Exhibit 2.

On Cross-examination, he testified that his father had lived on the suit land since1973,and died in2003, but got to know about the encroachment in the year2010,and filed this case in 2007. It was his testimony that he had a share certificate, a letter of allotment dated22nd September 1992, receipt dated24th September 1992. He also contended that the land is a leasehold and the 1st Defendant forged the documents.

On re examination, he testified that the Land Registrar colluded with the 1st Defendant. He further testified that the land was initially forGithunguri Ranching Co.Limitedand it later came to his father’s name.

On cross examination by the 3rd Defendant Counsel, he testified that the 1st Defendant colluded with the 1st Defendant to grab his land. He further testified that there is a criminal case against the 1st Defendant beingCR CASE No.121 of 2017,filed at Thika Chief Magistrate’s Court. That the land belonged to his father and he used to pay land rent and rates and the receipts are in Court. Further, that his father died in 2003, and he discovered the encroachment in2010,while the case was filed in 2017.

PW 2- John Maina Mburu, testified that he is the Chairman ofGithunguri Ranching Co.Limitedand the dispute involvingPlot No.Ruiru West Block 1/1267,was between the Plaintiff, 1st and 3rd Defendant which started in 2016. He further testified that they made a verdict stating that the Plaintiff was the rightful owner of the suit property having acquired it from his fatherAdam Macharia,who was a shareholder ofGithunguri Ranching Co.Limited. He contended that during the hearing of the case atGithunguri Ranching Co.Limited, the Plaintiff brought the following;- share certificate in the name of Adam Macharia. Affidavit for correctness of names, receipt dated 4/7/1977, receipt dated 7/3/1983, receipt dated 16/12/1988, receipt dated 4/8/1983, receipt dated 4/8/1983, for payment of shares, clearance of shares, letter of allotment dated 27/09/1992, letter dated 27/09/1992 from lands office, ballot card number 1267.

WhileNgamauhad share certificate dated19/10/1973, in the name ofChege Waweru, copy of survey fees receipt dated4/7/1973, certificate of shares no.9057 dated 6/12/2001, receipt dated 30/11/2001, copy of defaced ballot and freehold title deed issued on 14/07/2005.

That both parties came for the hearing of their case and the Board was satisfied that the Plaintiff’s documents were consistent and the ones by 1st Defendant had many anomalies such as there was no share certificate number and the receipt of4/7/1973,had no receipt number and that the title deed for Ngamau wasFreehold title,while the suit land is aleaseholdarea.

On cross examination, he testified that the dispute was referred to the Company in2016. That they did not know that the area had a title deed and had no documents to prove that the area was a leasehold. That the Company wanted to do a change of user, but discovered that the area had a change of user. He further testified that the documents held byNgamauwere not genuine.

Defence Case

Dw 1- Samuel Ndungu Ngamauadopted his witness statement as part of his evidence and his list of documents as exhibit 1-6.

On cross examination, he testified that he has no sale agreement and cannot trace it and that he has a criminal case, but not yet convicted. He further testified that the land is freehold, but the former chairman said that it was leasehold.

Upon cross examination by the Counsel for the 3rd Defendant, he stated that he knew about the dispute in 2017, upon being called by the OCS Ruiru. He further stated that the land isFreeholdand notLeasehold,and referred to the letter of1998,from the Ministry of Lands.

Upon cross examination by the Counsel for the 4th Defendant, he stated that he processed the title for himself and used the letter that he got fromGithunguri Ranching Co. Limited.

On re-examination, he testified that he used the clearance fromGithunguri Ranching Co. Limited,to process title. He further testified that the land is registered in the name ofLucy Wambui.

Dw 2-Lucy Wambui Githinjiadopted her witness statement filed on19th /9/2017,and her list of documents as Exhibits 1-7.

On cross examination, she testified that she did a search and noted that the land was forSamueland she has the title deed in the name of the 1st Defendant.

On re-examination, she stated that she did due diligence and also did a search and the land was in the name ofSamuel Ndungu Ngamau.

Dw 3- Robert Mugendi Mbugua,testified that he is a Land Registrar stationed in Ruiru. He prepared a list of documents and witness statement dated14th/12/2010,and adopted the same as his evidence.

On cross examination by the Plaintiff Counsel, he stated that the block of land is owned byGithunguri Ranching Co.Limited,and that the land is freehold. He further testified that with regard to the tenure of the land,Ruiru West Block 1,was initially issued with leases in the year2002,but in2018,theDirector of Land Administrationcommunicated toDistrict Land Administration Officer,advising that the land be converted to Leasehold from Freehold. That there are owners of land who have both leases and freehold titles and that the land was allegedly transferred to Samuel, the same date it was transferred to Lucy.

On cross examination, by the 1st Defendant Counsel, he testified that the land is now Freehold since 2003, and registration as freehold that time was valid. That Lucy is the registered owner.

On cross examination by the 3rd Defendant Counsel, he stated that he did not have the documents before a caution was filed, and the Plaintiff applied for the caution as the owner.

After the viva voce evidence, parties were directed to file written submissions. The Plaintiff filed his submissions dated 10th January 2021, through the Law Firm of B N Kilonzo &Co. Advocates. The 1st Defendant filed his submissions dated 29th March 2021, through the Law Firm of Millimo Muthomi &Co. Advocates. The 3rd Defendant filed her submissions dated 8th March 2021, through the Law Firm of Agnes W.Njoroge &Co. Advocates and the 2nd and 4th Defendants filed their submissions dated 12th June 2021 through Mwihaki Ndundu for the Attorney General.

Having now carefully read and considered the pleadings, written submissions by the parties, cited authorities and relevant provisions of law, the Court finds the issue for determination as follows;

1. Who is the bonafide owner of Plot No.Ruiru West Block 1/1267.

2. Whether the Plaintiff is entitled to the orders sought

Who is the bonafide owner of Plot No.Ruiru West Block 1/1267.

It is the Plaintiff’s case that the late Adam Kimani MuminAliasAdam Mumin(deceased)was the registered owner of the suit property, having been allotted the same by the Githunguri Ranching Company Limited. Further, the Plaintiff testified that the late Adam Kimani MuminAliasAdam Mumin was issued with a share certificate and a Clearance Certificate upon which he sought to be registered as the proprietor of the suit property.

On the other hand, the 1st Defendant has alleged that he purchased Plot No.Ruiru West Block 1/1267,in2001from oneChege Waweruafter conducting due diligence atGithunguri Ranching Co.Limited,offices upon production of Survey fees receipt dated14th July 1973, ballot card number1267,and original share certificate ofChege Waweru.

The 3rd Defendant contends that she purchased the suit property from the 1st Defendant vide a sale agreement dated19th August 2004. This Court has seen share certificate in the name ofAdam Macharia, affidavit for correctness of names, receipt dated 4/7/1977, receipt dated 7/3/1983, receipt dated 16/12/1988, receipt dated 4/8/1983, receipt dated 4/8/1983 for payment of shares and letter of allotment dated 27/09/1992

However, the Plaintiff still has an obligation to give evidence on the procedure that was used to acquire the title to land. See the case of Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others[2016] eKLR,where the Court held that;

‘A Court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’’

On the other hand, the 1st Defendant contends that he purchased Plot No.Ruiru West Block 1/1267,in2001from oneChege Waweru,after conducting due diligence atGithunguri Ranching Co.LimitedHowever, the Plaintiff has pleaded that all these documents are a forgery.

Having alleged that the 1st and 3rd Defendants procured the title through falsified documents, it then became incumbent upon the Plaintiff to prove the same. The Plaintiff has relied on a verdict from theGithunguri Constituency Ranching Company Limitedthat stated thatthe Board was satisfied that the Plaintiff’s documents were consistent and the ones by 1st Defendant had many anomalies e.g. there was no share certificate number and the receipt of4/7/1973,had no receipt number and that the title deed forNgamauwas Freehold title while the suit land is a leasehold area.

As already stated, there was a process through which a shareholder of the Company could acquire title. The 1st Defendant claim that hehas share certificate dated 19/10/1973, in the name ofChege Waweru, copy of survey fees receipt dated 4/7/1973, Certificate of shares No.9057, dated 6/12/2001, receipt dated 30/11/2001, copy of defaced ballot and freehold title deed issued on 14/07/2005.

Though, the 1st and 3rd Defendants have produced documentation, including a share certificate and a clearance certificate fromGithunguri Constituency Ranching Company,dated 22/11/2002, a title deed in the name of the 3rd Defendant, they have failed to give evidence of the process through whichChege Wawerutransferred the suit land to 1st Defendant. There is nothing on record to show the process of transfer in terms of sale agreement, transfer or purchase of shares by oneChege Waweruin favor of the 1st Defendant.

The Court has seen the verdict byGithunguri Constituency Ranching Companydated7th July 2017,which statedthat the Board was satisfied that the Plaintiff’s documents were consistent and the ones by 1st Defendant had many anomalies e.g. there was no share certificate number and the receipt of4/7/1973,had no receipt number and that the title deed for Ngamau was Freehold title while the suit land is a leasehold area. The same sentiments were confirmed by Pw 2 and was not challenged.

The above verdict was never challenged by the 1st and 3rd Defendants who had an obligation to even appeal the said decision through theGithunguri Constituency Ranching Companyadministrative organs or the Court but they failed to do so.

Section 26 (1) of the Land Registration Act, gives a registered owner of property absolute and indefeasible rights over the said property. However, it is not in doubt that the said title can be impeached if it is found to have been acquired unprocedurally or through fraud.

In this instant case, the 1st and 3rd Defendants have not established the root of their title and it is the Court’s considered view that the Plaintiff has proved how he acquired the suit property and the same was acquired procedurally.

However, despite the 1st Defendant producing documents indicating that Chege Waweru was the owner of the suit property, he failed to prove that the title deed to the suit property was acquired procedurally as there seems to be no evidence of the transfer and the resultant transaction to the 3rd Defendant was thus illegal.

Therefore, the Court finds and holds that Plaintiff is the bonafide owner of Plot No. Ruiru West Block 1/1267,having acquired it fromAdam Mumin (deceased),by virtue of a Limited Grant of Letters of Administration Ad litem.

(ii) Whether the Plaintiff is entitled to the orders sought

The Plaintiff had sought for amongst other prayers that the Court declares that the suit property belongs to the estate ofAdam Kimani MuminAliasAdam Mumin, an order of cancellation/revoking of the title deed of the suit property and costs. This Court has already found and held that the manner in which the suit property was transferred to the 3rd Defendant was not proper and therefore the prayer by the Plaintiff to be declared as the rightful owner of the suit property is found proper and will therefore stand and succeed.

The Plaintiff urged the Court to cancel the title deed held and registered in the name of the 3rd Defendant in line with Section 80 of the Land Registration Act. Section 80 (1) of the Land Registration Act provides that: -

“Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”

This Court holds and finds that the Plaintiff has discharged the onus of proving his case on a balance of probability. Since the Court already came to a conclusion that there was no due process in which the title was issued to the 3rd Defendant, there would therefore be no reason as to why the same should not be cancelled.

The Upshot of the foregoing is that the title held by the 3rd Defendant is illegal and therefore cancelled. However, the Court declares the Plaintiff as the rightful owner of the suit property.

Having now carefully considered the available evidence herein, the cited authorities and relevant provisions of the law and the rival written submissions, the Court finds that the Plaintiff has discharge the burden of proving his claim on a balance of probability. Consequently the Court enters judgement for the Plaintiff against the Defendants herein jointly and severally in terms of prayers no. (a) (b) and (c) of the Plaint dated 16th August, 2017.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 30TH DAY OF SEPTEMBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Kuiyaki