[2018] KEELC 3853 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT MIGORI

ELC CASE 34 OF 2017

(Formely Kisii Elc Case No. 627 of 2016)

FRANCIS OKECH AWINO........................................PLAINTIFF

VERSUS

JOHN NYAMBOK AWINO.............................1ST DEFENDANT

LAND REGISTRAR HOMA- BAY.................2ND DEFENDANT

JUDGMENT

1. In a plaint dated 24th November 2016, the plaintiff has sued the defendants jointly and severally for orders;-

a) A declaration that the registration of the 1st defendant on LR NO. KANYADA/KANYANGO –KILANYA/924 contrary to the confirmed grant is illegal, null and void.

b) An order of cancellation and rectification of the register of all subdivisions out of LR No. KANYADA /KANYANGO –KILANYA/5252, 5255, and 5973 in favour of the plaintiff.

c) Costs of this suit to be borne by the defendants.

d) Any other relief that this court may deem it fit to grant.

2. The plaintiff claimed that on 7th January 2006, the 1st defendant and himself obtained a certificate of confirmation of grant of letters of administration to the estate of Cornel Awino Wajinga (deceased) in LR NO. KANYADA/KANYANGO/KALANYA/924 (hereinafter referred to as the suit property) on equal share, in Homa- Bay SRM’s court Succession Cause No. 225 of 2004 (P Exhibit 1). The 1st defendant colluded with the agents of 2nd defendant and was registered as the owner of the suit property contrary to the confirmed grant. The plaintiff was under the impression that the 1st defendant was the owner of the suit property which was ancestral land to hold it in trust for himself and the 1st defendant until such time that he could subdivide and transfer his equal portion of the land.

3. On 9th May 2007, the 1st defendant without the knowledge and consent of the plaintiff, subdivided the suit property into three portions namely LR NO. KANYADA/KANYANGO/KAHIYA/5163, 5163, and 5165 and disposed of portions out of L.R numbers 5164 and 5165. The 1st defendant further subdivided LR. NO. KANYADA /KANYANGO/KILANYA/5163 to LR. NOs. 5252 to 5255.

4. The plaintiff also claimed that defendants’ transactions were fraudulent hence irregular, null and void. The plaintiff, further, claimed that he has suffered loss and damage by being disinherited his entitlement to the ancestral land which has a sentimental value. He has pleaded particulars of fraud and irregularity on the part of the defendants,

thus ;

i. Registering the suit property LR. NO. KANYADA/KANYANGO-KALANYA/924 contrary to confirmed grant.

ii. Subdividing the suit property LR. NO. KANYADA/KANYANGO-KALANYA/924 without the consent of the plaintiff.

iii. Defrauding the plaintiff his entitlement

iv. Presenting documents to the lands office for registration contrary to the confirmed grant.

v. Colluding with lands officials to disinherit the plaintiff.

5. By an affidavit of service sworn on 30/11/2016 and 15/11/2017, by Edward Awuor Nyaila, a duly authorized process server, the 1st and 2nd defendants were duly served. The defendants failed to file memorandum of appearance and or statements of defence within the prescribed period of time.

6. On 22/11/2017, I heard the testimony of the plaintiff/PW1 who stated that the 1st defendant and himself obtained P Exhibit 1. PW1, further, stated that the 1st defendant subdivided the suit land and transferred portions into three Nos. 5163, 5164, and 5165. He produced PEXhibit 1 , a certificate of official search dated 7/11/2016 (P Exhibit 2 a and 2 b), Land Disputes Tribunal. Asego division gave the plaintiff 0. 41 Ha of the suit property by an award dated 25/2/2010 (P Exhibit 3).

7. Learned counsel Mr. Nyambati for the plaintiff filed submissions dated 23/1/2018. He summoned up the claim as per the plaint and evidence of the plaintiff. He did urge for the grant of the orders sought.

8. I have studied the entire plaint, evidence of PW1 and submissions by his counsel. In Galaxy Paints Co. Ltd – Vs- Falcon Grounds Ltd (2000) EA 385 quoted in the case of Great Lakes Transport company (U) Ltd –vs. Kenya Revenue Authority (2009) KLR 720, it was held that issues for determination in a suit generally flow from the pleadings or as framed by the parties to the suit. In the instant suit, there are no issues framed by the parties. Therefore, I find the following issues flowing from the pleadings for determination;-

a) Was a grant of letters of administration issued jointly to the plaintiff and the 1st defendant in respect of the estate of the deceased Cornel Awino Wajinga ?

b) Did the 1st defendant in collusion with agents of the 2nd defendant, register, subdivide, further sub-divide and transfer the portions of the suit land in the name of 1st defendant and others ?

c) Is there any disclosure of fraud in the actions of the defendant?

d) Is the plaintiff entitled to the reliefs sought herein?

9. On the issue of grant of letters of administration to the estate of the deceased, PW1 stated:-

“ the suit property is Kenyada/Kanyango –Kalanya/924. It belongs to my late father CORNEL AWINO WAJINGA. Upon his death, the defendant and Myself were granted a certificate of confirmation of grant issued on 17/1/2006 by Homa- Bay SRM Succession Cause No. 225/2004,( P Exhibit 1. )”

10. P Exhibit 1 reveals that a certificate of confirmation of grant in respect of the estate of the deceased was issued to the 1st defendant as the administrator on 17/1/2006 in Homa- Bay SRM court succession cause No. 225 of 2014. The 1st defendant was to share the estate with PW1 in equal shares. On the schedule part, PEhibit 1 reads :-

Schedule

Name Description of property share of heirs

1. John Nyambok Awino L.R. NO.KANYADA/KANYANGO-KALANYA/924

Equal shares each

2. Francis Okech Awino L.R. NO.KANYADA/KANYANGO-KALANYA/924

11. It is clear from the PExhibit 1 that both PW1 and the 1st defendant were heirs for equal shares on the estate of the deceased. The 1st defendant was holding the estate in trust for PW1 and himself. The case of Mwangi & anor –vs- Mwangi (1986) KLR 328, recognized trust over agricultural land like in the instant suit. Furthermore, in Section 28(b) of the Land Registration Act, 2012, trusts including customary trusts are overriding interests to which all registered land shall be subject to as may for the time being subsist and affect the same, without their being noted on the register.

12. In respect of subdivision of the estate and registration of portions thereof, PW1 produced PExhibit 2 (a) and (b) in the name of the 1st defendant which show that land titles No.s KANYADA/KANYANGO/KALANYA 5252 and 5255 came from the subdivision of land title No. KANYANDA.KANYANGO/KALANYA/5163. PW1 was entitled to receive the particulars of P Exhibit 2(a) and 2(b) pursuant to Section 34 of the Land Registration Act, 2012 which states that :-

“A person who requires an official search in respect of any parcel, shall be entitled to receive particulars of the subsisting entries in the register, certified copies of any document, the cadastral map, or plan file in the registry upon payment of the prescribed fee.”

13. On the issue of fraud, Blacks Law Dictionary 9th Edition at page 731 defines it as ;-

“ A knowing misrepresentation of the truth or a concealment of material fact to induce another to act to his or her detainment. Fraud is usually a tort , but in some cases, especially when the conduct is wilful, it may be a crime. A misrepresentation made recklessly without belief in it’s truth to induce another person to act”

14. Moreover, under section 2 of the Limitation of Actions Act (Cap 22 Laws of Kenya), the term:

“Fraud’’ includes conduct which having regard to some special relationship between the parties concerned is an unconscionable thing for the one to do towards the other”.

15. In Atieno –V- Thabiti Finance Co. Ltd and another (2001) KLR 496, the court termed fraud as a generic term embracing all multifarious means which human being devise and which are resorted to by one individual to get advantage over another by false suggestions or by surprise, trick, winning, dissembling and any unfair way by which another is cleared. It stated that fraud must be specifically pleaded and particulars of fraud alleged must be stated on the face of the pleading. It is well settled law that fraudulent conduct must be strictly proved more than a mere balance of probabilities.

16. I note that P Exhibit 3 speaks volumes on the relief sought and in favour of the plaintiff. It reads in part;

“..The land road between Aiko and Francis Okech be opened for use to cater for closed Mutation road. John Nyambok Awino to sign land relevant forms to allow Francis Okech Awino get his parcel number and title deed. Failure of which the Executive Officer of the Court to execute the same.”

17. According to Section 80 (1) of the Land Registration Act , 2012, this court has powers to rectify the register in relating to title to land by cancellation or amendment in case of fraud or mistake. The section states;.

80 (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.( Emphasis provided)

18. I find the plaintiff’s case firmly built and not challenged. The plaintiff has proved his claim against the defendants on a balance of probability.

19. Accordingly I enter Judgment in favuor of the plaintiff against the defendants in terms of orders (i), (ii) and (iii) sought in the plaint dated 24th November, 2016.

DELIVERED, SIGNED and DATED in open court at MIGORI this 15th day of February, 2018.

G. M. A. ONGONDO

JUDGE

In the presence of;

Mireri, learned counsel for the plaintiff

Tom Maurice, court assistant