[2022] KEELC 210 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NYAMIRA

ELC NO. 102 OF 2021

{Formerly at Environment and Land Court at Kisii Case No. 93 of 2017}

ESTHER MATOKE MOGAKA (Suing as the Legal Administratix of the Estate of

MOGAKA NYARANGO (deceased).....................................................................PLAINTIFF

=VRS=

RICHARD ONDIEKI MAKORI...............................................................1ST DEFENDANT

THE LAND REGISTRAR, NYAMIRA COUNTY...................................2ND DEFENDANT

HON. ATTORNEY GENERAL.................................................................3RD DEFENDANT

JUDGMENT

According to the Amended Plaint dated 12/07/2017 the Plaintiff’s case is that the suit property, L.R. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 was adjudicated, demarcated and subsequently registered in the name of her late husband, Mogaka Nyarango which became part of his Estate after his demise on 27/12/1977. The same was later transferred in the names of the Plaintiff and the 1st Defendant without the Grant of letters of administration being issued. This was done fraudulently to deny the Estate part of its assets. It also amounted to intermeddling with the Estate of the deceased contrary to Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya. The Plaintiff avers that the same could not have been possible without the connivance of the 2nd Defendant. The transfer of the suit property was effected on 12/05/1999 and the Plaintiff’s prayer is that the same be cancelled and a declaration be given that the entry was unlawful, illegal and void. Orders of eviction and injunction are also sought against the 1st Defendant as well as General Damages and costs. On the part of the 1st Defendant, it is pleaded that the Plaintiff’s claim is not true and that the suit should be dismissed with costs. The 1st Defendant also swore a Replying Affidavit on 12/06/2017 shielding the 2nd Defendant against accusations of fraud and maintaining that the Plaintiff himself caused the transfer to be effected. The 2nd and 3rd Defendants denied the accusation of collusion and pleaded that if ever any transfer of the suit land was carried out, the same was done in good faith, legally and with the proper procedure being followed with no intention to defraud anyone. They further aver that the transfer of the suit property was effected after presentation of the transfer documents at the 2nd Defendant’s offices and that the 2nd Defendant is not an expert in detecting fraud and could therefore not investigate who presented the transfer documents to him. He was not even mandated to carry out investigations.

The Plaintiff’s evidence was commenced by Esther Matoke Mogaka PW1, a blind woman who testified that Mogaka Nyarango was her late husband but she could not recall when he died. He was the registered owner of L.R. NO. WEST MUGIRANGO/BOSAMARO WEST/1497. All her 7 children had died and the 1st Defendant was her adopted son. The 1st Defendant is said to have transferred the suit property without her consent and/or knowledge. The 1st Defendant has therefore made her stay on the suit property untenable and that he has been threatening to kill her. She concluded by testifying that she has given the 1st Defendant another piece of land elsewhere where he should move to. She prays for the orders sought in the Amended Plaint since whatever action was carried out the same was done illegally and irregularly, behind her back.

On cross-examination by the 1st Defendant, the Plaintiff said that she took him to her home after his mother, Teresa died. This was in the year 2000. On re-examination by Mr. Ochwangi, the Plaintiff said that the 1st Defendant must have fraudulently transferred the suit property.

PW2, Charles Mutua, the Land Registrar, Nyamira referred to a copy of the Green Card and indicated that the first registered owner of L.R. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 was Mogaka Nyarango Makura, on 21/07/1969. On 12/05/1999 it was transferred to the names of the Plaintiff and the 1st Defendant by way of transfer from Mogaka Nyarango Makura. Mr. Mutua did not find any transfer documents in the file at the Lands office. He also said that he found a strange copy of Grant in the file in respect of the Estate of Mogaka Nyarango Makura issued to the Plaintiff, Esther Mogaka but no certificate of confirmation of Grant. There was also a Death certificate for Mogaka Nyarango showing that he died on 27/12/1977 but no transfer forms were traced. The Land Registrar admitted that the transfer from Mogaka Nyarango to Esther Matoke was not proper as there was no Grant and that the Title should revert to the original owner. On cross-examination by the 1st Defendant, Mr. Mutua said the transfer was effected in 1999. Mogaka Nyarango had not obtained a Title Deed and he could not tell whether the Plaintiff had sought advice from the 2nd Defendant’s office. Mr. Mutua did not come across any transfer documents in the Lands office.

On his part, the 1st Defendant testified that the Plaintiff had no children and she consequently married his mother, Teresia Bosibori in 1990 in a traditionally recognized woman to woman marriage. He says he was born in 1976. The Plaintiff also married Clemensia Mokeira who came in with 6 children. The Plaintiff had 2 sons and 2 daughters who had died by the time his mother married her. Teresa Bosibori died in 2021. On cross-examination Mr. Makori said that the suit land belonged to Mogaka Nyarango who had died by the time the Plaintiff married his mother. He admitted that no succession cause was ever commenced and that by the time his mother married the Plaintiff the suit land was already in the Plaintiff’s name. On cross-examination by Mr. Nderitu for the 3rd Defendant, the 1st Defendant admitted that the Plaintiff has been blind since birth and that it is her who took him to the lands office, Nyamira and signed transfer documents whose contents she did not disclose to the 1st Defendant. But that later, a Title Deed came out in their joint names. He could not tell whether the Plaintiff went to the Land Control Board for consent or not.

DWII, Jared Ogeto Onkundi testified that he is the first born son of Clemensia and that his mother married the Plaintiff in 1993. He was born in 1981. The suit land was sub-divided into 2 by the Plaintiff between Clemensia and Teresia and that as a family they all agreed that the 1st Defendant be registered as a Trustee in trust for the entire family but on cross-examination by Ms. Ochwal for the Plaintiff she admitted that no Grant of letters of administration was ever applied for. On cross-examination by Mr. Nderitu for the 2nd and 3rd Defendants he admitted that he did accompany the Plaintiff to the Land’s Office for transfer.

DW3, Shadrack Nyagetiria gave evidence similar to that of DW2 which I intend not to reproduce. DW4, Clemensia Mokeira re-iterated that she was the Plaintiff’s wife in a woman to woman marriage. They had all agreed that the 1st Defendant be registered as a co-owner to the Plaintiff in trust for the entire family and that the 1st Defendant was registered as a co-owner because all the other children in the family were young.

The one issue in this suit and which would dispose of the suit is whether the transfer of L.R. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 from the late Mogaka Nyarango to the Plaintiff and the 1st Defendant respectively was proper. It is agreed by all the parties and witnesses in equal measure that L.R. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 belonged to the late Mogaka Nyarango, who according to the Land Registrar, Nyamira Mr. Charles Mutua, was registered as the owner on 21/07/1969. On 12/05/1999 it was then transferred in the joint names of Esther Matoke Mogaka and Richard Mogaka Nyarango. But in a very enthralling manner, there are no transfer documents in the Lands Office. There was a copy of Grant in the Lands Office issued in respect of the Estate of Mogaka Nyarango Makura. But again there is no certificate of confirmation of Grant. Interestingly, the transfer was not by way of transmission but directly by Mogaka Nyarango who had long died on 27/12/1977, 22 years earlier. A copy of his death certificate was also in the file. Could this be yet another case of a dead man coming back to life for the sole purpose of transfer. It is as if Mr. Mogaka must have resurrected to carry out this function which he had not completed in his lifetime. He went back to his grave immediately the land was transferred to the Plaintiff and the 1st Defendant without anybody noticing that he was around.

Someone must have hatched a fraudulent scheme and successfully executed it either with the connivance of some officials at Nyamira Lands office or due to the latter’s negligence. But even more curiously there are no Transfer Forms presented to the Lands office nor any consents to transfer. Equally surprising is the fact that nowhere has the 1st Defendant mentioned that the consent of the Land Control Board was ever sought which is mandatory for any unexempted agricultural land such as the suit land. Although the 1st Defendant and all his witnesses testified that the Plaintiff and her family members were in agreement that the suit property be registered in the joint names of the Plaintiff and the 1st Defendant, the transfer was allegedly carried out by Mogaka Nyarango who had died more than 22 years earlier, on 27/12/1977. This fraud was no doubt carried out for the benefit of the 1st Defendant. He has defended the Transfer and even claims that he was asked to accompany the Plaintiff to effect it yet he did not see the Documents of Transfer.

The 1st Defendant and the Lands officials who transferred the property L.R. NO. WEST MUGIRANGO/ BOSAMARO/1497 cannot escape blame. How could the Lands officials not be able to tell the difference between an ordinary land Transfer from Transfer by way of Transmission? Where are the Transfer documents and the Application forms for Registration? The Lands officials must have been privy to the fraud for entertaining and effecting a transfer of an agricultural land without consent of the Land Control Board.

Although when testifying he providentially negated what is contained in his Defence, it is quite unfortunate that in his Defence, the Land Registrar who is the 2nd Defendant in this suit defended his action as follows:

· At no given time did the 2nd Defendant collude, manipulate and/or illegally transfer and register the suit parcel of land in favour of the 1st Defendant. If any transfer and registration of the land was ever done, which is denied, the same was done in good faith, legally and proper procedure was followed and/or with no intention to defraud the Plaintiff of the suit property.

· The 2nd Defendant did not at any time collude with the 1st Defendant neither did the 2nd Defendant transfer and register the suit property through irregular, fraudulent and illegal means.

· The Defendants deny the cancellation and/or nullification of the Title in respect to LR. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 as stated in paragraph 13 and 14 of the Plaint. The 2nd Defendant avers that if any registration was done in favour of the 1st Defendant, which is denied, then the same was done in good faith after the presentation of the transfer documents at the offices of the 2nd Defendant.

· The 2nd Defendant is not an expert in detecting fraud hence could not and was and/or not mandated to investigate the party lodging transfer documents at the 2nd Defendant’s office neither can the 2nd Defendant detect if documents presented at his office were forged.

Having analyzed the evidence above and having come to the conclusion that the entire process was punctuated by fraud, what is the effect of a fraudulent transaction?

The applicable law during the pendency of the transaction above was the Registered Land Act (Cap 300 Laws of Kenya). Section 43 (1) of the said repealed Act provided that: -

“(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.”

Subsection (2) is even more important. The same reads as follows: -

“(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.”

Section 143 of the Registered Land Act has been reproduced in the Land Registration Act, No. 3 of 2012 under Section 26 to even include misrepresentation as a ground for rectifying the Register.

In the case of Alice Chemutai Too – Vs – Nickson Kipkurui Korir & 2 Others [2015] e KLR Justice Sila Munyao held that:

“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation.

Turning now to the law of succession, Section 45 of the Law of Suction Act (Cap 160 Laws of Kenya) provides that: -

“(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.

(2) Any person who contravenes the provisions of this section shall—

(a) be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and

(b) be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.”

Section 55(1) of the said Act is to the effect that: -

“No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in section 71. ”

Section 79 provides: -

“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of that grant, and, subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” (Emphasis mine).

In the present case no letters of administration have ever been applied for let alone been granted. The Transfer to the Plaintiff and the 1st Defendant jointly contravenes the provisions of section 45 of the Law of succession Act (CAP 160 Laws of Kenya) and as such it is unlawful.

The upshot of the above is that whatever was done in respect to the Transfer of property L.R. NO. WEST MUGIRANGO/ BOSAMARO/1497 after 27/12/1977 was intermeddling with the Estate of Mogaka Nyarango and not lawful. Before 12/5/1999 the land parcel known as property L.R. NO. WEST MUGIRANGO/ BOSAMARO/1497was still the property of the Deceased and no living person had a good Title over the property. The Transfer was therefore a nullity and this court hereby nullifies the same.

I hereby invoke the provisions of Section 80 (1) of the Land Registration Act No. 3 of 2012 which provides as follows:

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

And since the proviso under sub section (2) is not applicable to the 1st Defendant as he was a party to the fraud, I hereby enter judgement in the following terms:

(a) A declaration be and is hereby made that the transactions and/or entries entered and/or endorsed in the register of LR. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 on the 12th day of May 1999, prior to and/or before the issuance of Grant of Letters of Administration of the Estate of the deceased, were unlawful, illegal and void.

(b) TheLand Registrar, Nyamira ishereby ordered to rectify the property known as Title NO. property L.R. NO. WEST MUGIRANGO/ BOSAMARO /1497 to have the entry made thereon on 12th May 1999 and any subsequent entries cancelled and the proprietorship section of the said property reverts back to the name of MOGAKA NYARANGO forthwith pending the process of Succession.

(c) An order of eviction is hereby issued against the 1st Defendant, his agents and/or servants from LR. NO. WEST MUGIRANGO/ BOSAMARO WEST/1497.

(d) A Permanent injunction is hereby issued restraining the 1st Defendant either by himself, agents, servants and/or anyone claiming under the said Defendant from entering upon, re-entering, taking possession, trespassing onto, cultivating, building structures, interfering with and/or in any other manner dealing with LR. NO. WEST MUGIRANGO/BOSAMARO WEST/1497 and/or any portion(s) thereof.

The prayer for General Damages for trespass is disallowed.

Before I put down my pen, I am persuaded to believe that since he claims that the family agreed that he becomes a Trustee in respect to the suit land, asserts that he accompanied the Plaintiff, an old blind woman, to the Lands office for Transfer of the suit land which the Plaintiff herself denies and disowns, the 1st Defendant must not only have had the knowledge of the fraud perpetrated to facilitate the transfer of Parcel Number property L.R. NO. WEST MUGIRANGO/ BOSAMARO/1497 but must also have substantially contributed to the same and ensured that the scheme succeeded. It is important to note that the Plaintiff is blind and everything must have been done behind her back. Consequently, I direct that the DCIO, Nyamira do commence investigations on how the property known as L.R. NO. WEST MUGIRANGO/ BOSAMARO/1497 was transferred from the late Mogaka Nyarango who had died on 27/12/1977 to Esther Matoke Mogaka and Richard Ondieki on 12/5/1999 with a view to recommending to the Director of Public Prosecutions the arraigning in court and charging of anyone who will be found to have perpetrated and/ or participated in the fraud. A Report on the progress of the investigations and/ or criminal charges be filed in this Court within the next sixty (60) Days from the date hereof. The Land Registrar, Nyamira do facilitate the said investigations.

On the issue of costs, I accordingly order that the 1st Defendant do pay the costs of this suit to the Plaintiff.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 25TH DAY OF MARCH 2022.

MUGO KAMAU

JUDGE

In the Presence of: -

Court Assistant: Sibota

Plaintiff’s Counsel: Ms. Ochwal

Defendants: 1st Defendant in person