[2025] KEELC 4079 (KLR)

Abdullahi (Suing on Behalf of the Late Saidi Wakasaka Kapila) v Jetwa & another (Environment & Land Case E022 of 2023) [2025] KEELC 4079 (KLR) (22 May 2025) (Judgment)

Neutral citation: [2025] KEELC 4079 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment & Land Case E022 of 2023

E Asati, J

May 22, 2025

Between

Ali Msungu Abdullahi (Suing on Behalf of the Late Saidi Wakasaka Kapila)

Plaintiff

and

Vallabhkas Rachanji Jetwa

1st Defendant

The County Land Registrar, Kisumu

2nd Defendant

Judgment

1. The Plaintiff Ali Msungu Abdullahi brought the suit on behalf of Saidi Wakasaka Kapila (the deceased) vide the plaint dated 30th November 2023. The subject matter of the suit is a parcel of land known as Kisumu/Mukendwa/77 measuring or estimated to measure 2. 3 Hectares (the suit land). The plaintiff claimed that the suit land was registered in the name of the deceased as a first registration on 6/2/1980. He claimed that he is the grandson and administrator of the estate of the deceased.

2. The Plaintiff’s complaint was that the 1st Defendant, Vallabhdas Rachanji Jetwa, fraudulently caused the entire of the suit land to be transferred to his name. That a case was filed at the Land Disputes Tribunal in which an award was made in favour of the deceased but could not be implemented as the title in respect of the suit land had already been closed upon sub-division of the land into plots No.83 and 84.

3. The plaintiff therefore sought for the following relief against the Defendants jointly and severally; -a.A declaration that all dealings in land Parcel No. Kisumu/Mukendwa/77 and subsequent sub-division of the same into land parcel Nos. 83 and 84 are wrong, illegal fraudulent malicious, null and void and should be cancelled and reversed.b.An order that Kisumu County Land Registrar to remove, cancel and/or revoke the mutation dated 20/5/1983 which gave rise to new numbers 83 and 84 and the numbers be quashed and the title to revert back to its original owner.c.An order that land parcel No. Kisumu/Mukendwa/77 to be transferred into the names of the plaintiff as the grandson, next of kin and the administrator of the estate of the late Saidi Wakasaka Kapiia, deceased, pursuant to a grant of Letters of Administration and Confirmation of Grant issued in Kisumu H.C Succ Cause No. 10 of 2019. d.Costs of the suit plus interest thereon.e.Any other relief deemed just and expedient by the honourable court.

4. In response to the plaintiff’s claim, the 2nd Defendant filed a statement of Defence dated 8th February 2024 vide which he denied the plaintiff’s claim and averred that the suit land was sub-divided by the registered owner one Saida Wasaka Kapila who regularly transferred the resultant parcels to the 1st Defendant on 9th June 1983 and that the resultant parcel numbers have been further sub-divided and changed hands. That the current registered owners required to be joined in the suit. The 2nd defendant further averred that the suit is statute barred the action complained of having happened in the lifetime of the original owner of the land, about 40 years ago.

The evidence 5. The plaintiff testified and produced documents namely, green card, certificate of Confirmation of Grant dated 13th October 2020, Grant of Letters of Administration dated 16th October 2019, Kenya Gazette for 13th September 2019, transfer form for land Parcel No.s Kisumu/Mukendwa/83 AND 84, Mutation form, Letters by Mukele & Co Advocates dated 4th December , 16th January 1985 and 5th November 1987, proceedings in the Tribunal case No. 1 of 2002 dated 18/3/2002, Decree in Kisumu Land case No. 17 of 2003, Certificate of Death for Feruza Saidi Wanzala, grant of Letters of Administration Ad Litem dated 18th January 2016 and a Letter from the Ministry of Lands dated 15th November 2012 as exhibits.

6. On Cross – examination, the plaintiff stated that the original registered owner died in the year 1991 and that the Land was sub-divided into parcel numbers 83 and 84 in the lifetime of the said original registered owner. That it is the registered owner who did the sub-division. That he did not have evidence that the deceased registered owner lodged a complaint of forgery to the police. That he does not know who the current registered owners of the lands are.

7. No evidence was adduced by the 1st Defendant who did not Enter Appearance or file defence.

8. On behalf of the 2nd Defendant, Nicholas Obiero, the Land Registrar Kisumu testified. He narrated the history of the suit land and the subsequent sub-divisions and produced copies of documents as held at the Land Registry in respect of the suit land.

9. He testified that after land parcel number 83 and 84 were transferred to the 1st defendant, the 1st Defendant charged them to the bank to secure a loan, failed to pay the loan and the parcels of land were sold by the bank to Kenya Bankers Sacco Ltd on 11/3/2003 who sub-divided the lands No. 83 and No. 84 into 29 and 24 portions respectively. That the new portions have further been sub-divided and registered in the names of third parties.

Issues for determination 10. From the pleadings the evidence and the submissions placed before court, the following emerge as the issues for determination; -a.Whether or not sub-division of the suit land parcel No. Kisumu/Mukendwa/77 and transfer of the resultant parcels in favour of the 1st defendant was fraudulent.b.Whether or not the plaintiff’s suit is res judicata and time-barred.c.Whether or not the plaintiff is entitled to the relief soughtd.Costs of the suit.

Analysis and determination 11. The first issue for determination is whether or not sub-division of the suit land and transfer of the resultant parcels in favour of the 1st Defendant was fraudulent.

12. The Plaintiff’s case was that the 1st Defendant entered into a land sale agreement with the deceased for the purchase of a portion of land measuring 2 acres of the suit land but that the 1st defendant failed to pay the balance of the purchase price and instead caused the deceased to be coerced into signing the requisite documents for transfer of the entire suit land measuring 2. 3 hectares in favour of the 1st Defendant.

13. It was not disputed that the suit land belonged to the deceased and that it was sub-divided into two portions by the deceased in his lifetime and both resultant parcels were transferred to the 1st Defendant also in the lifetime of the deceased registered owner and title documents issued to the 1st Defendant.

14. The plaintiff claimed that the 1st defendant paid to the deceased only Kshs.1000/= of the agreed purchase price of Kshs.35,000/- for the portion measuring 2 acres of the suit land but failed to pay the balance. He produced documents which he said showed that the deceased complained about the sub-division and the transfers. These were; the letter dated 16th January 1985 from Mukele & Co advocates addressed to the deceased advising the deceased on the options available to him. The letter advised him either to have his sons file a complaint through the District Officer’s office under the new Land Act giving elders powers to handle land cases and that the findings of the elders could then be filed in court. The letter advised him in the alternative to file a case in the court but to do this he needed to avail the sum of Kshs.40,000/= ready for refund and pay the Advocate Kshs.5000/= to cover their fees and court fees.

15. From the contents of this letter, it is clear that the deceased had received Kshs.40,000/= from the 1st Defendant which the Advocate advised him to avail for refund to the 1st Defendant before a suit could be filed in court for recovery of the land.

16. The other letter produced by the plaintiff was dated 4th December from the same firm of Advocates addressed to the 1st defendant. In the letter, the advocate indicated that the deceased was willing to settle the matter if the 1st defendant could re-transfer to him land parcel No.84 and allow the deceased to pay him Kshs.2,000/= per month with effect from 10th January 1985 and on the 10th of every succeeding month to cover the money the 1st defendant paid to the deceased.

17. The contents of these letters discount the plaintiff’s claim that the 1st defendant only paid Kshs 1000/= of the agreed purchase price of Kshs 35,000 for a portion of 2 acres.

18. It is true that the deceased never filed suit against the 1st defendant but was trying to negotiate for re-transfer of part of the suit land back to him.The Plaintiff’s claim is hinged on the tort of fraud.Fraud has been defined in Black’s Law Dictionary 11th Edition as;“A knowing, misrepresentation or knowing concealment of material facts made to induce another to act to his or her detriment.”

19. The Court of Appeal in Vijay Morjaria vs Nansingh, Madhusingh Darbar & another [2000]eKLR held that:“It is well established that fraud must be specifically pleaded and the particulars of fraud alleged must be stated on the face of the pleading. The act 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 distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”

20. On the standard of proof required for claims based on fraud, courts have held that the standard of proof is higher than in the ordinary civil cases. In Koinange & 13 others vs Charles Karuga Koinange 1986 KLR at page 23 the court held that:“When fraud is alleged by the Plaintiffs the onus is on the Plaintiffs to discharge the burden of proof. Allegations of fraud must be strictly proved, although the standard of proof may not be so heavy as to require proof beyond a reasonable doubt, something more than a balance of probabilities is required.”

21. Under the provisions of sections 107 to 109 of the evidence Act, the burden of proof is on the Plaintiff to prove that the transactions he complained of were fraudulent. The court finds that that burden of proof has not been discharged. The evidence placed before court shows that the land left the ownership of the deceased, on whose behalf the plaintiff claims to bring the action, during the lifetime and with the participation of the said deceased.The next issue for determination is whether the suit is res judicata.

22. The plaintiff’s case was that his father filed a suit at the Land Disputes Tribunal, on behalf of the estate of the deceased, over the dispute and that the Tribunal made a decision in favour of the decease. He pleaded in paragraph 10 of the plaint that his father one Feruzi Zaidi Wanzala(also now deceased) succeeded the estate of the deceased registered owner and lodged a complaint with the Kisumu Land Disputes Tribunal in Tribunal Case No. 1 of 2002 which was decided in favour of the plaintiff’s father and the award of the Tribunal was adopted as a judgement of the court in Kisumu CMCC Land case No. 17 of 2003.

23. The Plaintiff produced a copy of the proceedings dated 18/3/2002 in respect of Land Tribunal Case No. 1 of 2002. The verdict in the said proceedings was that; -“This land should be sub-divided between the two. The plaintiff should remain with the portion which their family occupy.”

24. The Plaintiff also produced a copy of the decree in Kisumu CMC Land Case No. 17 of 2003 adopting the verdict of the Tribunal as a decree of the court. There is no evidence that the decision of the tribunal whether right or wrong, as adopted by the court has ever been set aside.

25. The suit herein over the same subject matter and against the same parties as the case before the Tribunal is therefore of res judicata as provided for in Section 7 of the Civil Procedure Act.The next issue is whether the suit is time barred.

26. Section 7 of the Limitation of Actions Act, provides that an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

27. And under section 4(2) of the same Act, an action based on fraud may not be brought after the expiry of 3 years from the date of the cause of action. The actions complained of in present suit happened more than 12 years ago. I find that the suit is time barred.As to whether the plaintiff is entitled to the relief sought;

28. In addition to the findings already made herein, it was demonstrated by the evidence of DW1 that the suit land no longer exists. That it has over the years been sub-divided to over 50 pieces of land now registered in the names of third parties who are not parties to this suit.

29. Further, it was the plaintiff’s case that his father had earlier on taken out Letters of Administration in respect of the estate of the deceased. It was not clear whether the plaintiff and his father were joint administrators of the estate or each had sought Letters of Administration separately.

30. Regarding costs of the suit, though under section 27 of the Civil Procedure Act costs follow the event, in this suit the 1st defendant did not respond to the claim hence no basis to make an award for costs.

31. For the foregoing reasons the court finds that the plaintiff has not proved his claim on a balance of probabilities. The suit is hereby dismissed. No order as to costs.Orders accordingly.

JUDGMENT DATED AND SIGNED AT KISUMU, READ VIRTUALLY THIS 29TH DAY OF MAY 2025 THROUGH MICROSOFT TEAMS ONLINE APPLICATION.E. ASATIJUDGE.In the presence of:Maureen: Court Assistant.Plaintiff present in person.No appearance for the 1st Defendant.No appearance for the 4th Defendant.