[2022] KEHC 1479 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KERUGOYA

ELC CASE NO. 78 OF 2016

AGNES WANJIRU MUCHIRA......................................................1ST PLAINTIFF

LUCY WAWIRA MURIITHI.........................................................2ND PLAINTIFF

ROSE NJOKI GICHOBI................................................................3RD PLAINTIFF

VERSES

NJOKA NDAMBIRI.....................................................................1ST DEFENDANT

MARY WAGICUGU KIURA......................................................2ND DEFENDANT

JUDGMENT

The Plaintiffs instituted this suit by a Plaint dated 03/06/2016 in which they seek the following orders:-

a) A declaration that land parcel number KABARE/MUTIGE/447 was registered in the names of the 1st defendant to hold the same in trust for himself and the plaintiffs.

b) Cancellation of the registration of the 2nd defendant from the register as proprietor of land parcel number KABARE/MUTIGE/447 and subsequently registration of the plaintiffs and the 1st defendant as proprietors of the land parcel number KABARE/MUTIGE/447 holding equal shares each.

c) Costs of this suit and interest at court rates.

d) Any other or further relief that this Honourable Court may deem fit to grant.

The plaintiffs’ suit was filed contemporaneously with a Notice of Motion under certificate of urgency dated 3rd June, 2016. When the said application was placed before the Duty Court, the same was certified urgent and temporary injunction orders issued restraining the defendants from transferring, alienating, entering, cultivating and/or otherwise interfering with the plaintiffs’ right in any way on the suit land parcel number KABARE/MUTIGE/447 pending the hearing and determination of the said application inter-partes.

In a joint statement of defence dated 31st August, 2016, the defendant denied the plaintiffs’ claim and prayed for the dismissal of the suit. After complying with the pre-trial requirements under Order 11 of the Civil Procedure Rules, this case was set down for hearing.

PLAINTIFFS’ SUMMARY OF FACTS

The 3rd plaintiff testified on her behalf and on behalf of her co-plaintiffs whereby she adopted her witness statement recorded on 21/09/2021. She also identified her list of documents dated 03/06/2016 which she also produced as P-exhibit No. 1, 2, and 3 respectively. According to the plaintiffs, Land parcel number KABARE/MUTIGE/447 is a sub-division of land parcel number KABARE/MUTIGE/170 which is a clan land which was registered in the name of their father namely Ndambiri Njigo (deceased) and which ought to be transmitted from one generation to another. The plaintiffs further contend that after sub-division of the suit land parcel NO. KABARE/MUTIGE/447, their father secretly caused the same to be registered jointly with their brother Gatitu Ndambiri and upon the demise of the two, Njoka Ndambiri, the 1st defendant herein secretly procured a death certificate number for their father being number 0022405 and registered the Death certificate without their knowledge and consent while knowing that the 3rd plaintiff was in custody of the genuine and original Certificate of death bearing number 281593. The 3rd plaintiff stated that the 1st defendant later sold the suit land to Mary Wagicugu Kiura, the 2nd defendant herein without notice to them and despite lodging several restrictions on the said parcel of land.

In addition, the plaintiffs contend that some of the parties herein reside and utilize the suit land in their day to day living and have even buried their loved ones in the disputed land. The three exhibits produced by the plaintiffs is a copy of a green card for land parcel NO. KABARE/MUTIGE/447, a copy of Death Certificate for Gatitu Ndambiri No. 281593 issued on 23/07/2010 and photographs of various developments on the suit land.

THE DEFENDANTS SUMMARY OF FACTS

Both defendants gave their evidence to the plaintiffs’ claim. Njoka Ndambiri was the first to testify and was referred to his witness statement recorded on 31/08/2016 which he adopted in his evidence. He also produced the seven items contained in his list of documents dated the same date as defence exhibits No. 1, 2, 3, 4, 5, 6, and 7 respectively. In his evidence, the 1st defendant admits that the suit property L.R NO. KABARE/MUTIGE/447 was a clan land and a subdivision from L.R NO. KABARE/MUTIGE/170 which was registered in the name of their father, Ndambiri Njigo (deceased). He stated that their father subdivided the said land into three portions being L.R NO. KABARE/MUTIGE/447, 448 and 449. Thereafter, he gave him land parcel NO. KABARE/MUTIGE/448 and his brother Gatitu Ndambiri was given land parcel NO. KABARE/MUTIGE/449. However, the remaining portion NO. KABARE/MUTIGE/447 was registered in the joint names of the two brothers and their father. On cross-examination, the 1st defendant admitted that the suit land was left by their father to his wife who is also their mother to take care of any of their sisters in the unlikely event that they are chased or separated by their husbands. He also admitted that they were registered as joint proprietors of the suit land so that if any of their sisters are chased they can have a place they can call home. The 1st defendant also admitted that Agnes Wanjiru Muchira, the 1st plaintiff herein came into the suit land after he had sold the same to the 2nd defendant. He admits that the 1st plaintiff lives on the suit land but only came after he had sold the same to the 2nd defendant. He stated that the plaintiffs consented to the sale of the suit land after they were given money in the sum of Kshs. 200,000/= by their late mother. However, he did not produce any agreement or acknowledgment receipt by the plaintiffs of the alleged sum of Kshs. 200,000/=.

The second defendant also gave sworn testimony and stated that she bought the suit land parcel NO. KABARE/MUTIGE/447 from Njoka Ndambiri, the 1st defendant herein on or about the year 2013 after she was given an offer. She stated that she did due diligence by conducting a search and realising that there was no encumbrances. After paying the deposit, she discovered a restriction had been placed on the land. She also discovered that the plaintiffs were the architects of the restriction. She stated that the plaintiffs in the company of the 1st defendant came to her and said that they had resolved their differences. She said that they went to the D.O’s Office and the restriction was removed. She stated that on 18/12/2013, she went with the 1st defendant to Gichugu Land Control Board where the consent was approved. In conclusion, the 2nd defendant contends that she is an innocent purchaser for value without notice.

PLAINTIFFS WRITTEN SUBMISSIONS

The firm of Ngigi Gichoya & Co. Advocates instructed by the plaintiffs did not file submissions within the timelines agreed by consent of the parties.

DEFENDANTS WRITTEN SUBMISSIONS

The firm of Nduku Njuki & Co. Advocates instructed by the defendants cited Section 26 and Section 60 of the Land Registration Act No .3 of 2012 in support of their defence to the claim and submitted that the plaintiffs have not proved their claim to the required standard. They submitted that acts of fraud must be specifically proved. They argued that the plaintiffs have not proved any fraudulent act committed by the defendants who fully participated in the process leading to the registration of the 2nd defendant as proprietor of the suit land. No cases were cited in defence to the suit claim.

LEGAL ANALYSIS AND DECISION

I have considered the pleadings by the parties, the evidence adduced and the rival submissions. I have also looked at the applicable law. Flowing from the pleadings and the evidence by the parties, the following are the possible issues for determination;

1) Whether the 2nd defendant held land parcel NO. KABARE/MUTIGE/447 in trust for the plaintiffs?

2) Whether the 2nd defendant‘s title to the suit land parcel NO. KABARE/MUTIGE/447 is indefeasible and protected as a purchaser for value without notice?

3) What are the appropriate orders to grant?

4) Who is liable to pay costs?

1. WHETHER THE 2ND DEFENDANT HELD LAND PARCEL NO. KABARE/MUTIGE/447 IN TRUS PLAINTIFFS

From the evidence adduced by the parties, it is not in dispute that the suit land parcel NO. KABARE/MUTIGE/447 is a sub-division of the original land parcel NO. KABARE/MUTIGE/170 which was clan land registered in the name of Ndambiri Njigo to hold in trust for himself and his family which include the plaintiffs and the first defendant herein. It is not also in dispute that the said land was subdivided into three portions in July, 1996. Two of the resultant subdivisions being L.R NO. KABARE/MUTIGE/448 and L.R NO. 449 were given to Njoka Ndambiri, the 1st defendant herein while L.R NO. KABARE/MUTIGE/449 was given to Gatitu Ndambiri (deceased), husband to Rose Njoki Gichobi, the 3rd plaintiff herein. The remaining portion L.R NO. KABARE/MUTIGE/447 was registered in the joint names of the original proprietor Ndambiri Njigo and his two sons, Njoka Ndambiri (1st defendant) and Gatitu Ndambiri (deceased). During his testimony, the 1st defendant admitted that after their father Ndambiri Njigo subdivided the original clan land parcel NO. KABARE/MUTIGE/170 and gave him and his brother Gatitu Ndambiri (deceased) the two portions, the remaining portion L.R NO. KABARE/MUTIGE/447 which is the suit land was for their mother to be kept for any of their sisters who may be separated or divorced and chased away by their husbands and have nowhere to call home.

The 3rd Plaintiff in her testimony explained how the 1st defendant procured a fraudulent Death certificate No. 0022405 for her late husband, Gatitu Ndambiri and without their knowledge presented to the Land Registrar who caused him to be registered as the sole and absolute proprietor without informing the rest of the family members. The 3rd plaintiff also stated that they had lodged numerous restrictions on the suit land but were removed without their notice.

I agree with the plaintiffs’ evidence that the suit land being a resultant of a clan land was registered in the joint names of the 1st defendant, his brother Gatitu Ndambiri (deceased) and their father Ndambiri Njigo (deceased) in trust for themselves and the rest of the family. When the 1st defendant presented a death certificate for his father Ndambiri Njigo and his brother Gatitu Ndambiri to the Land Registrar pursuant to Section 60(b) of the Land Registration Act, he committed acts of fraud and misrepresentation. The 1st defendant also committed a fraudulent act when he removed caution placed by the plaintiffs and presented a fake death certificate to the Land Registrar for registration as the sole and absolute owner of the suit land. These acts of fraud and misrepresentation are not only actionable but are serious criminal offences punishable in law.

2. WHETHER THE 2ND DEFENDANT’S TITLE TO THE SUIT LAND PARCEL NUMBER KABARE/MUTIGE/447 IS INDEFEASIBLE AND PROTECTED AS A PURCHASER FOR VALUE WITHOUT NOTICE

The 2nd defendant during cross-examination admitted that there were two restrictions placed on the suit land before she purchased the same. However, she did not bother to check the reasons for the restriction. She also admitted that there was someone living on the suit land. If the 2nd defendant was diligent enough, she could have found that the suit property was a resultant of a clan land which was not available for alienation. As a result therefore, the 2nd defendant’s title to the suit land parcel NO. KABARE/MUTIGE/447 is not protected in law and the same is liable to be impeached.

WHAT ARE THE APPROPRIATE ORDERS TO ISSUE?

In view of the matters I have stated hereinabove, I find and hold that the plaintiffs have proved their case to the required standard.

WHO IS LIABLE TO PAY COSTS?

Costs usually follow the event unless good reasons are given. Though the plaintiffs and the defendants are close family members and Courts tend to promote cohesion and coexistence by ordering each party to bear their own costs, and having found that the 1st defendant committed acts of fraud in the process of selling the suit land which is a clan land, I order the defendants to bear the costs of this suit.

CONCLUSION AND DECISION

Having found that the plaintiffs have proved their case to the required standard, I hereby enter judgment for the Plaintiffs against the Defendants jointly and severally in the following terms;

a) A declaration that Land Parcel Number KABARE/MUTIGE/447 was registered in the names of the 1st Defendant to hold the same in trust for himself and the Plaintiffs.

b) Cancellation of the Registration of the 2nd Defendant from the register as proprietor of the Land parcel Number KABARE/MUTIGE/447 and subsequent registration of the Plaintiffs and the 1st Defendant as proprietors of the said land NO. KABARE/MUTIGE/447 holding equal shares each.

c) The Defendants to pay the costs of this suit plus interest at Court rates.

d) The Directorate of Criminal Investigations, Kerugoya branch to conduct investigations to determine if criminal acts were committed by the Defendants or any other perpetrators and prosecute the same in accordance with the law.

Judgment READ, DELIVERED and SIGNED in the open Court at Kerugoya this 11th day of March, 2022.

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HON. E.C. CHERONO

ELC JUDGE

In the presence of:

1. Ms Amba holding brief for Mwangi Kinyua for the Plaintiffs

2. Ms Wambui holding brief for Nduku Njuki for the Defendants

3. Kabuta, Court clerk.