[2020] KEELC 1681 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT BUSIA

CIVIL CASENO. 179 OF 2014

CHRISPINUS MANG’ENI WAMANYA......................................................PLAINTIFF

- VERSUS -

PAUL JUMA OTAGA............................................................................1ST DEFENDANT

DAVID ASHIBO NDAKALU................................................................2ND DEFENDANT

J U D G E M E N T

1. Vide a plaint dated 22nd April 2014, the plaintiff sued two defendants seeking the following reliefs;

a. A declaratory order that the sale, registration and transfer to the 2nd defendant of the plaintiff’s portion of land that had already been purchased from the 1st defendant was illegal, unconstitutional, null and void abinitio.

b. A declaratory order that the suit land and especially a portion measuring 0. 40 hectares created out of land parcel number Bukhayo/Kisoko/3221 and which was to be designated as land parcel number Bukhayo/Kisoko/6404 lawfully and solely belonged to the plaintiff and that the same be registered and transferred in his names since he is in occupation and use as a bonafide purchaser. In the event the 2nd defendant refuses to sign the transfer, the Deputy Registrar of this court to do so on his behalf.

c. An alternative order that the defendants jointly and severally compensates the plaintiff for the current market value of the suit land and the developments thereon.

d. A permanent injunction restraining the defendants, their servants and or authorized agents and or any person claiming through them from interfering with the parcel of land that would be created in favour of the plaintiff.

2. The plaintiff pleaded that the 1st defendant is the immediate former registered owner of L.R No. Bukhayo/Kisoko/3221 measuring approximately 1. 46 ha before he transferred it to the 2nd defendant. That the plaintiff had on 29/1/2003 purchased a portion of this land measuring 1½ acres at a consideration of Kshs.37,000 to be curved from Bukhayo/Kisoko/3221. That before purchasing this land, he did a search at Busia Lands Registry and confirmed it was registered in the 1st defendant’s name.

3. The plaintiff pleaded further that he was put in possession of the sold portion which was then demarcated on the ground. Further, it is his case that the 1st defendant obtained spousal consent and the transaction was within the knowledge of the 2nd defendant herein who is their neighbour. The plaintiff pleads that the 1st defendant attended Nambale Land Control Board and obtained consent to subdivide the 0. 4ha which created L.R. No. Bukhayo/Kisoko/6404.

4. That the plaintiff avers that he has carried developments carried on the portion that he occupies on the suit land with the following;

i. The land value at Kshs.300,000.

ii. Semi-permanent houses valued at Kshs.75,000.

iii. Several hundreds of different species of trees valued between Kshs700,000 to 2,532,580.

5. The plaintiff avers that in 2008, the 1st defendant notwithstanding having sold him the one acre, proceeded to sell to the 2nd defendant the whole land including the plaintiff’s portion. That the defendants owed him a duty in law and fact in which they were to inform him of the transactions that were being carried on the suit land taking into account that he is a bonafide purchaser for value. That the sale to the 2nd defendant was fraudulent and or dubious sale. Particulars of fraud are listed below inter alia;

a. Secretly purporting to be selling and buying the plaintiff’s portion of land which had been earmarked, surveyed and only waiting for registration and transfer in the plaintiff’s name.

b. Ignoring to register and deliver the title deed of the plaintiff’s portion of land even after signing all the relevant documents pertinent to registration and transfer of land.

c. Ignoring the land control board consent acquiring the final transfer of the suit land in favour of the plaintiff and thereby denying him his constitutional right to own land.

d. Fraudulently manipulating the lands officers by concealing the particulars and facts surrounding the said land and transferring the same in the names of the 2nd defendant instead of the plaintiff.

e. Coercing the lands officers and inducing them and or intimidating them and causing them to transfer the plaintiff’s purchased portion to the 2nd defendant.

f. Purchasing the said portion knowingly and ignoring the plaintiff’s possession and occupation of the said land.

6. The 1st defendant never entered appearance. The 2nd defendant filed a statement of defence and counter-claim dated 23rd December 2014 denying the plaintiff’s claim. The 2nd defendant states that he procedurally, regularly and lawfully obtained registration as the sole proprietor of land parcel No. Bukhayo/Kisoko/3221. The 2nd defendant further pleaded that the plaintiff never obtained the Land Control Board consent to transfer hence the alleged agreement of sale between him and the 1st defendant was null and void for all purposes and totally inconsequential.

7. In the counter-claim, the 2nd defendant pleaded that sometime in 2009 the plaintiff laid claim to one (1) acre of the 2nd defendant’s land and filed a claim to that effect at the now defunct Nambale Land Dispute Tribunal No. 9 of 2009. The award of the Land Dispute Tribunal was reviewed by the High Court in Case JR No. 191 of 2009 restoring the one (1) acre of land to him. The 2nd defendant counter-claim’s against the plaintiff for eviction orders requiring the plaintiff, his workers employees or persons claiming through him to remove all buildings, structures, plants, trees, crops et al on the 2nd defendant’s land.

8. The 2nd defendant pleaded that there is a pending suit Busia CMCC No. 417 of 2014 filed on 10th October 2014. He urged the court to dismiss the plaintiff’s case and allow the 2nd defendant’s counter-claim. There was an order consolidating the lower court case with this file.

9. The parties called oral evidence at the close of the pleadings. The plaintiff testified on 13th June 2018 stating that he comes from Tanga Kona within Bukhayo/Kisoko area. He knew both defendants. He produced in evidence a sale agreement dated 29/1/2003 showing he bought one acre of land from L.R No. Bukhayo/Kisoko/3221 at Kshs.37,000 as Pex 1. That when he paid the deposit, he was put in possession before he finished paying the payment of the purchase price. That he later finished paying the same as shown in Pex 1 (comprised of the sale agreement and acknowledgements for the instalments).

10. PW stated that after occupying the land, he developed it by building his home and planting trees. He also produced as Pex 2 documents in evidence to demonstrate that the 1st defendant did start the process of transferring the sold portion to him. He also produced an application for consent to transfer as Pex 4. The plaintiff said the land was never transferred to him and when he asked, he was told to vacate. It is on being told this that he discovered the whole land had been sold to the 2nd defendant. He admitted that the 1st defendant made an application to evict him before he died – Pex 8. He asked the court to grant his prayers.

11. In cross-examination, the witness he has maize on the land but the trees in the valuation report are no longer there. That the court in Pex 8 did not give him the land. That he attended the Land Control Board meeting with the 1st defendant. That before he got consent to transfer, the 1st defendant sold the whole land to the 2nd defendant. That both defendants have wronged him. In re-examination, the plaintiff said there are a few trees remaining on the land. That the 1st defendant told him to leave the land about the year 2008 – 2009. That the 2nd defendant knew he was living on the suit portion when he bought the land. The plaintiff opposed the granting of prayers in the counter-claim. This marked the close of the plaintiff’s case.

12. The 2nd defendant gave his evidence on 18/2/2020. The original 2nd defendant died during the pendency of this suit and he was succeeded by his son Jason Amwayi Odando. He produced the grant of letters of administration as Dex 1. He adopted his statement and that of his father as his evidence in chief. DW said he knew the plaintiff because he is living on part of L.R No. Bukhayo/Kisoko/3221 registered in the name of the 2nd defendant. The witness produced the title as Dex 2. The 2nd defendant stated that the plaintiff should not live on their land. That he should be ordered to remove his 3 houses on the suit land and leave.

13. In cross-examination, DW said when his father bought the land in 2008, the plaintiff was already living there. That he did not know if his father asked the seller why the plaintiff was on the land. He did not know if the 1st defendant had sold one acre to the plaintiff. That he had a sale agreement but the same was not produced in evidence. This also marked the close of the defence case.

14. The counsels on record filed their respective submissions supported by case law. From the pleadings and evidence adduced, it is not in dispute that the 2nd defendant is the current registered owner of the suit title Bukhayo/Kisoko/3221 as shown in the copy of title and green card produced as Dex 2 and 3 respectively. The 2nd defendant’s witness stated that his father purchased the suit land from the 1st defendant in the year 2008 while the plaintiff was already living on the land. Thus occupation of the one (1) acre portion of suit land by the plaintiff is also not disputed.

15. The question which then arises for determination is whether or not the plaintiff’s interest in suit land were extinguished by the registration of the 2nd defendant as owner thereof. The 2nd defendant submitted that the plaintiff’s interest were indeed extinguished. In support of this averment he cited the provisions of Section 6(1) of Cap 302;

“(1) Each of the following transactions that is to say -

a. the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area.

b. the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of less than twenty acres into plots in an area to which the Development and Use of Land (Planning) Regulations, 1961 (L.N. 516/1961) for the time being apply;

is void for all purposes unless the land control board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.”

16. The 2nd defendant continued that the Land Control Board Act provides that lack of consent in a controlled transaction, the agreement becomes void for all purposes. The 2nd defendant also states that the plaintiff’s against him is remote because of the absence of a sale agreement between the two of them. That the appearance of L.R No. Bukhayo/Kisoko/6404 in a mutation form (Pex 2) is merely an intention to create the sub-divisional title. In reference to paragraph 13 of the plaint, the 2nd defendant submitted that he was a stranger to the transaction between the 1st defendant and the plaintiff.

17. Legally, the 2nd defendant is a stranger to the initial transaction which took place between the 1st defendant and the plaintiff. Did he remain a stranger? My answer is no because later on he bought the land the plaintiff is claiming a portion that is to say the plaintiff is challenging the validity of the 2nd defendant’s title. He has pleaded particulars of fraud against both defendants in paragraph 17 of his plaint. Section 26 of the Land Registration Act provides thus;

“(1) 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 whichthe person is proved to be a party; or

b. where the certificate of title has been acquiredillegally, unprocedurally or through a corrupt scheme.

(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.”

18. The applicable law at the time the 2nd defendant acquired his title was the Registered Land Act Cap 300 (now repealed). The said Act also provided for challenging title to a registered owner of land. Under Section 143 1 & 2 it provides thus;

“(1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake.

(2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.”

19. The law imposes burden on a party who alleges fraud to prove it above the standard provided in Civil Cases but not beyond reasonable doubt. Has the plaintiff discharged this burden? The plaintiff said he was put in possession of the part he bought by the 1st defendant. That the 2nd defendant knew of his presence on the land since he was a neighbour thereon. The plaintiff said further that he established his home on the land and put up 3 semi-permanent structures. The occupation is confirmed by the 2nd defendant who has counter-claimed for an order of eviction. The 2nd defendant also did not deny neighbouring the suit land.

20. Therefore did the 2nd defendant acquire his title to the land lawfully or he was a party to the fraud which resulted in the plaintiff losing his land? The 2nd defendant relies on the provisions of Section 6(1) of the Land Control Act to argue that the plaintiff’s transaction became null and void thus he had no interest to be protected in the suit land. First, where a transaction is deemed as null and void for want of consent of Land Control Board, Section 7 of Cap 302 provides thus;

“If any money or other valuable consideration has been paid in the course of a controlled transaction that becomes void under this Act, that money or consideration shall be recoverable as a debt by the person who paid it from the person to whom it was paid, but without prejudice to Section 22. ”

21. The 2nd defendant did not clarify if the plaintiff was refunded his money. Secondly, the provisions of Section 6(1) of Cap 302 cannot be invoked to aid the offending party. In this instance, the plaintiff has demonstrated his vigilance to ensure that he got his title for the portion he purchased as well as the 1st defendant’s intention to transfer. He did this by producing documents of mutation creating his one acre portion; acquisition of letter of consent to subdivide the land and lastly a duly executed application for consent to transfer and blank transfer form signed by the 1st defendant to give him the sold portion to him. He said that when he asked the 1st defendant why he was now not taking him to the Land Control Board, the 1st defendant turned around and asked him to vacate. It is after this answer that he learnt the 2nd defendant had purchased this land. The 2nd defendant thus contributed to making the 1st defendant change his mind making the 1st defendant complicit to the illegality.

22. The 2nd defendant also argued that six months had lapsed since the transaction was executed between the two parties. The time lapse is relative in this case on account of two reasons. First, the balance of Kshs.2,000 was paid on 9/4/2007. So when did time begin to run? In my view time began to run when the last instalment was paid. The six months would have lapsed on November 2007. The 2nd defendant did not disclose to the court both in his pleadings and witnesses statement when he got into the transaction of buying land from the defendant. He neither produced a sale agreement. It could be possible that he may have purchased the land even before the 6 months of the plaintiff had lapsed. For him to rely on the provisions of this section, he needed to demonstrate that his transaction was after 9/11/2007.

23. Secondly, the plaintiff having been put in possession did he acquire any rights provided under Section 28 of the Land Registration Act? (Expanded version of Section 30(g) of the Registered Land Act). This proposition is captured well in the Case Maina and 87 others Vs Kagiri (2014) eKLRat holding Nos 1 and 2 the Court of Appeal stated thus;

1. The evidence on record revealed that the Appellants were in possession of the suit property and as such, they came within the protection of Section 30(g) of the Registered Land Act. The Respondent having put the Appellants in possession of the suit property created an overriding interest in favour of the Appellants in relation to the suit property.

2. The Respondent had put the Appellants in possession of the suit property not as licensees but with the intention that he was to transfer the individual plots purchased by them. He had received the purchase price from the Appellants and thus created an implied and constructive trust in favour of the people who had paid the purchase price pending the sale of the suit proprietary estoppels were applicable and the Respondent could not renege.

24. The 2nd defendant while purchasing the whole land without asking the 1st defendant to first avail vacant possession is assumed to have done so while aware of the plaintiff’s interest on the disputed portion. Consequently his acquisition of the title L.R No. Bukhayo/Kisoko/3221 was subject to the interest of the person in occupation. It is therefore my opinion and I so hold that the 2nd defendant registered himself in trust for the plaintiff in respect of the portion of one acre the plaintiff so occupying. I am inclined to find that the plaintiff has proved his claim in terms of prayer 24 (a) and (b) and (d) of the plaint.

25. The 2nd defendant’s prayer in the counter-claim cannot hold in view of the fact that he has not proved that he is a bonafide purchaser for value without notice. In the Case of Katende Vs Haridar Company Limited (2008) 2 E.A 173the Court of Appeal stated that for a person to be considered as a bonafide purchaser for value, he must have proved inter alia;

a. He holds a certificate of title

b. He purchased the property in good faith.

c. He had no knowledge of the fraud.

d. He was not party to the fraud.

e. Payment of consideration.

26. In the instant case, I am not persuaded that the 2nd defendant purchased the property in good faith and that he had no knowledge of the 1st defendant defrauding the plaintiff. I say so because the plaintiff had physical structures on the land where he was living on with his family. The 2nd defendant’s witness statement dated 23/4/2014 made no mention of whether he asked the 1st defendant about the plaintiff’s presence on the land. Instead he concentrated on the proceedings of the Land Disputes Tribunal which were quashed thus taking the parties to the position ante. Lastly he did not produce evidence of paying consideration for the land.

27. In the conclusion, I enter judgement for the plaintiff as follows;

a. A declaratory order issued that the sale, registration and transfer to the 2nd defendant of the plaintiff’s portion of land that had already been purchased from the 1st defendant was illegal, unconstitutional, null and void abinitio.

b. A declaratory order be and is hereby given that the suit land and especially a portion measuring 0. 40 hectares created out of land parcel number Bukhayo/Kisoko/3221 and which was to be designated as land parcel number Bukhayo/Kisoko/6404 lawfully and solely belong to the plaintiff and that the same shall be registered and transferred in his names since he is in occupation and use as a bonafide purchaser. In the event the 2nd defendant refuses to sign the transfer, the Deputy Registrar of this Court to do so on his behalf.

d. A permanent injunction is hereby issued restraining the defendants, their servants and or authorized agents and or any person claiming through them from interfering with the portion of land that is occupied by the plaintiff.

28. The counter-claim of the 2nd defendant is dismissed. The costs of the suit and the counter-claim is awarded to the plaintiff.

Judgement Dated, signed and delivered at BUSIA this 16th day of July, 2020.

A. OMOLLO

JUDGE