[2019] KEELC 2746 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT MURANGA

ELC N0. 491 OF 2017

ANGELICA WANJIKU NGUGI............................................PLAINTIFF

VERSUS

FELISTER NJERI NGUGI..........................................1ST DEFENDANT

GRACE WAITHIRA NGUGI......................................2ND DEFENDANT

JULIA WANJIRU MBUTHIA.....................................3RD DEFENDANT

STEPHEN GUCHU NGUGI.........................................4TH DEFENDANT

CHARLES NGUNGU NGUGI.....................................5TH DEFENDANT

SIMON MURIGU NGUGI...........................................6TH DEFENDANT

NGUGI KIMANI............................................................7THDEFENDANT

JUDGMENT

1. The Plaintiff filed suit against the Defendants jointly and severally seeking the following orders;

a. Cancellation of the 1st -6th Defendants names in the suit properties.

b. Cancellation of the 1st 2nd 3rd and 6th Defendants names in the suit properties and the properties do revert to the names of the 7th Defendant now deceased so that distribution can commence after succession proceedings.

c. Costs of the suit.

2. On the 20/9/18 the suit was withdrawn against the 4th and 5th Defendant. Later on the demise of the 7th Defendant the Plaintiff withdrew suit against the said 7th Defendant and proceeded against the 1st, 2nd 3rd and 6th Defendants respectively.

3. The Plaintiff claimed that her husband the 7th Defendant who has since passed away was senile and suffered from mental disorder prior to his death. She avers that 1st 2nd 3rd and 6th Defendants with intent to defraud her misled her late husband into transferring Plot Numbers LOC5/NGURWEINI/891 5A, 5B, 12/6A and 6B (suit properties) in their favour effectively disinheriting her of the properties. She asserts that the suit properties were originally registered in the name of her late husband. Included in the list of properties allegedly transferred in a deceptive manner to the Defendants are; L.R NO 36/111/1251 and Motor Vehicle No KWH 109 and LR NO 36/111/170. That the acts of the Defendants are fraudulent and illegal. She therefore seeks that the aforementioned properties be cancelled and reverted to the 7th Defendant so that succession may commence.

4. The claim of the Plaintiff is opposed by the 1st 2nd 3rd and 6th Defendants who have termed the Plaintiffs’ claims as baseless and unfounded. They contend that the 7th Defendant too is a beneficiary of parcels of land Known as LOC5/NGURWEINI 148, LOC5 /MARIAINI/1438, LOC5 NGURWEININ /931 AND LOC5/NGURWEININ/580 all registered in the name of the Plaintiff by the 7th Defendant as gifts intervivos.

5. At the hearing the Plaintiff testified and stated that she is the wife of the 7th Defendant and the 1st Defendant is her co-wife while the rest of the Defendants are her step children, being biological children of the 1st Defendant. That the registered owners of the suit lands are the children of the 1st Defendant and informed the Court that her desire is to have the said properties be retransferred back to the 7th Defendant to allow for distribution in a succession cause between the two houses. She argued that the said properties were transferred by her husband to the Defendants but at a period when he had become senile and thus was unable to comprehend his actions. When put to task as to the evidence of senility of her husband she indicated that she did not have any as she is not a doctor.

6. On cross examination by the Advocate for the Defendants she informed the Court that her husband give her land during his lifetime, which land she argued is unwilling to share with the Defendants. She indicated that in total she has 3 properties which are registered in her name all given to her by her late husband. Equally the 7th Defendants gave lands to the Defendants which are registered in their names. However she argued that all the plots were taken by the Defendants to her exclusion.

7. Though the 1st, 2nd 3rd and 6th Defendants were represented by Counsel at the hearing they elected not to tender any evidence and instead relied on the defense and the list of documents on record and closed their case.

8. The parties filed Written Submissions which I have read and considered.

9. The key issue for determination are;

a. Whether the Plaintiff has proved fraud on the part of the Defendants?

b. Was the 7th Defendant senile or compos mentis when he transferred the suit lands to the Defendants?

c. Costs of the suit?

10. It is trite that he who asserts must prove. The Plaintiffs case is that the Defendants jointly and severally with intent to defraud her misled the 7th Defendant to transfer to them the suit lands. It is trite law that a person must plead the particulars of fraud and lead evidence to proof the same. A Court of law cannot infer fraud but must be proved with facts. In this case the Plaintiff has neither pleaded no proved fraud on the part of the Defendants.

11. The second issue is whether the 7th Defendant was senile at the point at which he transferred the suit lands to the Defendants. Senility is the state of deterioration of the state of mind caused by old age or disease related like Alzheimer’s. The Plaintiff did not lead any evidence before me in Court to proof that at the time the said lands were conveyed to the Defendants her late husband was senile or was not in control of his full faculties. The Court finds this ground speculative and the responsibility to proof this laid with the Plaintiff.

12. It is clear from the record and the copies of the ownership documents in respect to the suit lands that the said properties were registered in the respective names of the Defendants in the lifetime of the 7th Defendant. The Plaintiff has admitted as much that the 7th Defendant shared his properties to both houses and their children. What she challenges are that the plots being part of the estate of the deceased were not given to her at all and in her view these ought to have been shared amongst houses as well. Her view that the same should be cancelled and reverted to the name of the 7th Defendant so that the same may be succeeded is untenable in view of her failure to proof fraud as alleged.

13. Section 80 of the Land Registration Act empowers the Court to cancel titles found to have been procured through fraud and or mistake for which the person is a party to the fraud. As alluded earlier no fraud or mistake was proved on the part of the Defendants and I find no legal justification to so determine. I decline to grant the prayers.

14. Parties being related, I order that each to meet their costs of the suit.

Orders accordingly

DELIVERED, DATED AND SIGNED AT MURANG’A THIS 24TH DAY OF JUNE 2019.

J. G. KEMEI

JUDGE

Delivered in open Court in the presence of;

T M Njoroge for the Plaintiff

Mbuthia HB for Ms Muigai for the 1st, 2nd, 3rd & 6th Defendants

Kuiyaki and Njeri, Court Assistants