[2022] KEELC 1990 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 248 OF 2017

(FORMERLY NRB 106 OF 2007)

CATHERINE NJERI NGUNJIRI

CAROLINE WAMBUI NGUNJIRI

HARIT A.SHETH............................................................................................PLAINTIFFS

(in their capacity as Administrators of the Estate of Anthony Nahashon Ngunjiri)

VERSUS

THE ATTORNEY GENERAL.................................................................1ST DEFENDANT

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

JAMES NDIRANGU.................................................................................3RD DEFENDANT

JUDGMENT

The instant suit was commenced by way of Plaint dated 27th March 2007, by the Plaintiff who was Anthony Nahashon Ngunjiri. However, he passed on before the conclusion of the case and his Administrators substituted him. The Plaintiff had sought for the following orders as against the Defendants jointly and severally;

a) A Declaration that the Plaintiff is the bonafide registered proprietor of all that parcel of Land Known as L.R No. Ruiru East Block 1/23.

b) A Declaration that the registration of the 3rd Defendant as the registered proprietor of all that parcel of land known as L.R No. Ruiru East Block 1/23 is fraudulent, illegal, null and void .

c) A mandatory injunctive order directing the 2nd Defendant to cancel the Title issued to the 3rd Defendant over the suit property .

d) A mandatory injunctive order directing the 2nd Defendant to rectify the Thika District Land Register to reflect the Plaintiff as registered proprietor of L.R No. Ruiru East Block 1/23.

e) The 3rd Defendant, his agents, servants and or employees be permanently restrained from entering, interfering with, trespassing on , alienating ,wasting, damaging, selling , mortgaging, disposing , transferring or in any manner dealing with the suit property .

f) General Damages

g) Costs of this suit

h) Interest on (f) an (g) above .

It was the Plaintiff’s contention that he is the bonafide registered owner of the suit property L.R No. Ruiru East Block 1/23, having purchased it in 1990, at a public auction conducted by the then official receiver and interim Liquidator of Rural Urban Credit Finance Limited. That at the time of purchase, the suit property was charged to Rural Urban Credit Finance Limited by one Andrew Njuguna Chebe, the then registered proprietor and it was sold in exercise of its statutory power of sale . That pursuant to the purchase, the transfer was executed on 9th April 1990, and the Plaintiff registered as the absolute owner and a title deed was issued on 10th April 1990. That in 2004, the Plaintiff conducted an official search which revealed that he was the registered owner.

Further, that by a Certificate of official search dated 16th November 2006, the Plaintiff learnt that the suit property had been registered in the name of James Ndiragu allegedly in 1996, and he lodged a caution. The Plaintiff further stated that he has never sold nor transferred the suit property and the 3rd Defendant’s registration as the proprietor is illegal and fraudulent . That the 3rd Defendant misrepresented and/or connived with the 2nd Defendant to defraud the Plaintiff of his bona fide and legally acquired title to the suit property.

He particularized misrepresentation and fraud by the 3rd Defendant as;- alleging to have bought the suit property and being the bonafide owner;- purporting to have obtained the requisite consents when he had not;- presenting falsified documents to the Thika District Land Registrar, and obtaining a certificate of title over the suit property during subsistence of the Plaintiff’s Title.

He further particularized fraud by the 2nd Defendant as colluding with the 3rd Defendant and changing particulars in the register without any supporting documents;- issuing a title to the 3rd Defendant’s without cancelling the Plaintiff’s;- issuing two titles over the same property;- carrying out his/her work negligently and backdating the date on the green card. That the Plaintiff has suffered loss and damage.

The suit was contested and the 3rd Defendant filed his statement of Defence on 31st October 2007, and denied that he was at any material time the registered proprietor of the suit property . He further averred that if the suit property had been registered in his name, the same was registered without his knowledge , participation or consent . He further denied the alleged or any misrepresentation , connivance or fraud and denied that the Plaintiff suffered any loss or damage .

The 1st & 2nd Defendants filed their statement of Defence dated 9th November 2009, and denied all the allegations made in the Plaint and averred that the Plaintiff presented a duly executed transfer together with the supporting documents and was registered as the proprietor of the suit property on 10th April 1990. That on 10th June 1996, another transfer in favour of James Ndirangu was presented before the 2nd Defendant who after careful evaluation of the documents presented registered the 3rd Defendant as the proprietor of the suit property . It was their contention that if there was any fraud, then the same was carried out by the 3rd Defendant. They particularized fraud by the 3rd Defendant as; preparing documents purporting to be genuine transfer documents;- forging the Plaintiff’s signature;- misrepresenting that the said documents were genuine.

It was their contention that the 2nd Defendant has no sophisticated mechanism to ascertain whether the documents presented are genuine and relies on the honesty of the ,members of the public . That the moment the 3rd Defendant disowned the transaction, the 2nd Defendant contacted the Plaintiff to have the mistake rectified and the Plaintiff has refused to be re-registered as the owner and insists on compensation. That in light of the 3rd Defendant’s denial that he is the registered owner, the 2nd Defendant has no objection to the Plaintiff being registered as the proprietor and if the Court is to allow any damages, it is the 3rd Defendant who ought to be condemned.

The matter proceeded by way of viva voce evidence wherein the Plaintiffs called one witness and closed their case. Despite being served with the Hearing Notice as per the Affidavit of Service dated 27th November 2020, sworn by Ishmael Nguringa , the Defendants did not attend Court to defend the suit and the case therefore proceeded without their participation.

PLAINTIFFS’ CASE

PW1 Catherine Njeri Ngunjiri,an Advocate of the High Court of Kenya, adopted her witness statement dated 13th October 2015, as her evidence in Court . She further produced the bundle of documents dated 12th October 2015, as Exhibit 1. It was her further evidence that there is a confession by the 3rd Defendant vide a Replying Affidavit dated 31st January 2008, where in he stated that he had unknowingly been registered as the proprietor of Ruiru East Block 1/23, whether by way of purchase or gift, transmission or whatsoever and the registration against the title was wholly without his knowledge participation or consent . That the 3rd Defendant has always stated that he did not know the registered owner of the suit property and the pleadings by the 1st & 2nd Defendants indicate some sense of remorse . She urged the Court to grant her the reliefs she has sought for.

The Plaintiff thereafter, filed written submissions which the Court has carefully read and considered. The Court has also read and considered the pleadings by the parties, the evidence adduced and the relevant provisions of law and finds as follows; -

It is not in doubt that though the Defendants filed their statements of Defence, they did not give evidence in Court to support their pleadings and since pleadings are not evidence, the statement of Defence remain mere allegations. The Defendants did not give evidence and thus the allegations have not been substantiated. However, the Plaintiffs still have an obligation to prove their case on the required balance of probability. See the case of Gichinga Kibutha vs Caroline Nduku [2018] eKLR where the Court held;

“ It is not automatic that in instances where the evidence is not controverted, the claimant’s claim shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest”.

The Plaintiff sought for various orders amongst them, a Declaration that he is the bonafide owner of the suit property; that the registration of the 3rd Defendant as the proprietor of the suit property was fraudulent and therefore the issuance of mandatory injunctive orders and the rectification of the register to reflect the Plaintiff as the registered owner of the suit property.

The suit herein was filed in the year 2007, before the enactment of the Land Registration Act, 2012 and any rights and interests to the suit property having been acquired before the coming into force of the Land Registration Act,would therefore stand to be construed under the provisions of the Registered Land Act, Cap 300(Repealed). Although the Registered Land Act together with other Acts were repealed following the enactment of the Land Registration Act No. 3 of 2012, Section 107 of the Land Registration Act, 2012, provided that any right, interest, title, power or obligation acquired, accrued or established under the repealed Acts would continue to be governed by the law applicable to it immediately prior to the commencement of the new Act.

The provisions of Section27 of the Registered Land Act(Repealed)that have since been repeated under Section 24(1) of the Land Registration Act No. 3 of 2012, provide for the absolute ownership by a registered proprietor of any registered land in his favour.

Further Section 28 of Cap 300 (Repealed) provides that the Rights acquired by an owner of the parcel of land cannot be defeated except as provided by the Law.

“28 (a)The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject -

These provisions are repeated in Section 25 of Land Registration Act, which also state: -

“(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—

Further,Section 26 (1) of the Land Registration Act provides for indefeasibility of the title and provides as follows; -

“The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except-

a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or

b.Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

From the above provisions of law, it is clear that a certificate of title held by a proprietor is absolute and indefeasible and the same can only be challenged on grounds of fraud, misrepresentation or if the Certificate of title was acquired illegally or unprocedurally. Though the Defendants did not call any witness to substantiate their evidence, the contents of the 3rd Defendant’s Replying Affidavit and the Defence cannot in the interest of justice be wished away.

As per the Certificate of official search dated 16th November 2006, the same indicates that the 3rd Defendant herein James Ndirangu is theregistered owner of the suit property. Further agreen cardhas been produced in evidence as exhibit to support the above position that indicates that indeed the 3rdDefendant is the registered proprietor of the suit property. However, the 3rdDefendant has denied being the registered owner of the suit property and having any knowledge that he had been registered as the owner of the suit property. The process through which one can be registered as a proprietor of a property in law is very well laid down and there is no room where a person can be registered as the owner and any registration requires the individuals participation in the registration process as they would have to sign the transfer and collect their Title Deed. The 3rdDefendant having disowned being the registered owner, and or having participated in the registration automatically makes his registration as the proprietorfraudulent or suspectand there would be no reason as to why the same should not be cancelled.

As already noted, the Plaintiff must however prove his claim of ownership. The Plaintiffs have produced in evidence a title deed issued to the Deceased on 10th April 1990. Further they have produced in evidence documents that show the root of the Deceased’s Title being documentations of how the suit property was purchased from Rural Urban Credit Finance through a public auction.

In the absence of any evidence to controvert the Plaintiffs’ evidence, and in light of the admission by the 2nd Defendant that there might have been an omission, the Court finds and holds that the Plaintiffs have proved the root of the Deceased’s Title and therefore he is the rightful owner of the suit property and the 3rd Defendant’s registration as proprietor had no basis and therefore the said registrations is null and void and thus ripe for cancellation.

The Court is empowered by the provision of Section 80 of the Land Registration Act to order for the rectification of the Land Register, if it is satisfied that any registration was made fraudulently. See Section 80 of the Land Registration Act, 2012. Which provides;

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

The Court having held that the 3rdDefendant’s registration was acquired fraudulently only means that his registration has to be cancelled and given that the DeceasedAntony Nahashon Ngunjiriis the rightful owner of the suit property, the register should be rectified to reflect the rightful position. Further having found that the deceasedNahashon Ngunjiriis the rightful owner of the suit property, his Estate ought to enjoy all the rights and privileges appertaining to the said ownership, and this enjoyment can only be achieved if the Court grants the mandatory injunctive orders and restraining the 3rdDefendant.

The Plaintiff had sought for General Damages, without stating General Damages for what. The Court is not satisfied that the Plaintiffs are entitled to the said general damages as none has been proved.

On the issue of costs, Section 27 of the Civil Procedure Actgives the Court the discretion to grant costs. Ordinarily, costs usually follow the event, unless special circumstances are presented to Court. However, none has been presented herein and the Court therefore finds that the Plaintiffs are entitled to the costs of the suit.

Having carefully read and considered the pleadings herein, the evidence adduced by the Plaintiffs and the relevant provisions of law, the Court finds and holds that the Plaintiffs have proved their case on the required standard of balance of probabilities. Consequently, the Court enters judgment for the Plaintiffs against the Defendants herein jointly and severally and grants the following orders;

a) A Declaration be and is hereby made that the Plaintiff is the bonafide registered proprietor of all that parcel of Land Known as L.R No. Ruiru East Block 1/23.

b) A Declaration be and is hereby made that the registration of the 3rd Defendant as the registered proprietor of all that parcel of land known as L.R No. Ruiru East Block 1/23 is fraudulent, illegal, null and void.

c) A Mandatory Injunctive Order be and is hereby issued directing the 2nd Defendant to cancel the Title issued to the 3rd Defendant over the suit property.

d) A Mandatory Injunctive Order be and is hereby issued directing the 2nd Defendant to rectify the Thika District Land Registrar to reflect the Plaintiffs as register proprietor of L.R No. Ruiru East Block 1/23.

e) An order be and is hereby made restraining the 3rd Defendant, his agents, servants and or employees from entering, interfering with, trespassing on, alienating ,wasting, damaging, selling , mortgaging, disposing , transferring or in any manner dealing with the suit property .

f) The Plaintiff is awarded costs of the suit.

g) The Plaintiff is awarded interest of the costs of the suit.

It is hereby ordered.

DATED,SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 27TH DAY OF JANUARY, 2022.

L. GACHERU

JUDGE

Delivered online;

In the presence of

N/A for the 1 & 2nd Plaintiffs

Though aware of the Judgment dates.

N/A for the 1st – 3rd Defendants

Kuiyaki – Court Assistant

L. GACHERU

JUDGE