[2023] KEELC 18495 (KLR)

Gaiko alias John Muriithi Gaiko (Suing as the Executor of the will of Ernest Mureithi Kigiri - Deceased) v Kamau & 3 others (Environment & Land Case E004 of 2022) [2023] KEELC 18495 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18495 (KLR)

Republic of Kenya

In the Environment and Land Court at Nyeri

Environment & Land Case E004 of 2022

JO Olola, J

July 6, 2023

Between

John Mureithi Gaiko alias John Muriithi Gaiko

Plaintiff

Suing as the Executor of the will of Ernest Mureithi Kigiri - Deceased

and

Joseph Kuira Kamau

1st Defendant

John Wahiu Munga

2nd Defendant

Nyeri County Land Registrar

3rd Defendant

The Attorney General

4th Defendant

Judgment

Background 1. By the plaint dated April 4, 2022, John Mureithi Gaiko alias John Muriithi Gaiko suing as the executor of the will of Ernest Mureithi Kirigi (the plaintiff) prays for:(a)A declaration that the transfer of LR No Kabaru/Block 2/Mathira/384 to the 1st and 2nd defendants was fraudulent and irregular;(b)An order (for) the rectification of the register (for) LR No Mathira/384 by deleting the names of the 1st and 2nd defendants as proprietors of the said land;(c)A declaration that the title deed for LR No Kabaru/Block 2/Mathira/88384 that is in the custody of the 2nd defendant is not genuine;(d)Costs of the suit and interest; and(e)Any further or better relief that the honourable court may deem fit to grant.

2. Those prayers arise from the plaintiff’s contention that in his will dated April 25, 2008, the late Ernest Mureithi Kigiri had bequeathed the said parcel of land to his daughter Mary Wanjiru Mureithi. The plaintiff avers that while in the process of transferring the suit property to the named beneficiary, he discovered on September 30, 2021 that the same had fraudulently and illegally been transferred by the 3rd defendant to the name of the 1st defendant on the February 5, 2003 and subsequently to the 2nd defendant on May 11, 2010.

3. Despite service by way of substituted service carried out in the Daily Nation Newspaper of June 10, 2022, John Kuria Kamau and John Wahiu Munga sued herein as the 1st and 2nd defendants respectively, neither entered appearance nor did they file a statement of defence to the claim.

4. On their part, the Nyeri County Land Registrar as well as the Attorney General sued as the 3rd and 4th defendants respectively did file a statement of defence dated June 21, 2022 wherein they deny any wrong doing or fraud on their part.

The Plaintiff’s Case 5. The plaintiff (PW1) testified as the sole witness in his case. He told the court he was a consultant quantity surveyor and the executor of the will of his father Ernest Mureithi.

6. Relying on his written statement dated April 4, 2022, PW1 told the court that his father passed away on April 11, 2013 leaving behind a number of properties. Before his death, the deceased wrote a will on April 25, 2008 appointing the plaintiff as the sole executor and bequeathing the properties to his children.

7. PW1 testified that in the year 2014, he did file Nairobi High Court Succession Cause No 448 of 2014 and was subsequently issued with a grant of probate on June 10, 2014. The same was confirmed on January 25, 2016.

8. PW1 told the court that at part 6 of his father’s will, he had bequeathed the suit property to PW1’s sister Mary Wanjiru Mureithi. In September, 2021 while in the process of transferring the property to his sister, PW1 discovered that on February 5, 2003, the suit property had been registered in the name of the 1st defendant before it was again transferred to the 2nd defendant on May 11, 2010.

9. PW1 testified that his father could not have transferred the suit property to the 1st defendant as he had retained the possession of the same and had the custody of the original tittle deed. On September 30, 2021, PW1 reported the fraudulent transfer to Nyeri Police Station and investigations are ongoing.

The Defence Case 10. The 1st and 2nd defendants neither entered appearance nor did they file any statement of defence to the plaintiff’s claim. On the other hand, the 3rd and 4th defendants entered appearance and filed a statement of defence through the office of the honourable the Attorney General. The two did not however call any witness at the trial.

Analysis And Determination 11. I have carefully perused and considered the pleadings filed herein, the testimony of the plaintiff as well as the evidence adduced at the trial. I have similarly perused and considered the written submissions and authorities placed before me by the learned counsels for the plaintiff and the Honourable the Attorney General.

12. The plaintiff herein brings this suit as the executor of the last will of his father one Ernest Mureithi Kigiri who passed away on April 11, 2013. It is the plaintiff’s case that prior to the deceased’s death, he had on April 25, 2008 written his last will. At part 6 of the said will, the deceased did bequeath LR No Kabaru/Block 2/Mathira/384 (the suit property) to his daughter and the plaintiff’s sister Mary Wanjiru Mureithi.

13. It was the plaintiff’s case that while he was in the process of transferring the suit property to his sister as required under the will, he did discover that the same was no longer registered in the name of his father. It was then that he obtained a copy of the green card for the suit property whereupon he realized that unbeknown to themselves, the 3rd defendant had on July 2, 1995 re-issued another title deed for the self same suit property and that subsequently the same had been on February 5, 2003 registered in the name of the 1st defendant before it was later on, on May 11, 2010 transferred to the name of the 2nd defendant.

14. It is the plaintiff’s case that the re-issuance of the title and the subsequent registrations were fraudulent and hence his prayers that the same be declared fraudulent and irregular and for the register to be rectified by deleting the names of the 1st and 2nd defendants therefrom.

15. At the trial herein, the plaintiff told the court that he did not know the 1st and 2nd defendants and that he only came across their names when he applied for the green card for the suit property. It was his case that he knew his father could not have transferred his land to the 1st defendant as the family had remained in possession thereof and had to-date retained the original title deed in his father’s name.

16. As it turned out, the 1st and 2nd defendants could not be found for purposes of effecting personal service. The duo were thus served by way of substituted service through the Daily Nation Newspaper of June 10, 2022. Despite such service neither of them entered appearance or filed any defence to the claim. The 3rd and 4th defendants who are the custodians of the land register in the county filed a statement of defence denying the allegations of fraud. At the trial however, they did not call any witness and no explanation was hence given why a new title for the suit property was re-issued in the year 1995 as appears from the green card of the suit property produced by the plaintiff as P.exhibit No 5.

17. It was apparent from a perusal of the green card that the deceased was registered as the proprietor of the suit property on February 2, 1989 and that he had been issued with a title deed for the same on the same date. That title was still being held by the deceased at the time of his death and it was incumbent upon the 3rd defendant in particular to offer an explanation as to who applied for the re-issue and how the same came to be re-issued in the year 1995.

18. In the absence of any evidence to controvert the particulars of fraud that were pleaded and asserted by the plaintiff, and in view of the evidence adduced by the plaintiff, this court was satisfied that the plaintiff had discharged the burden of proof and had proved his case on a balance of probabilities. As it were, it was not possible that there could be two genuine title deeds over the same property. The 3rd defendant did not contest the authenticity of the title in possession of the plaintiff and there was no evidence adduced to suggest that the title deed currently in the name of the 2nd defendant were genuine.

19. It follows that I am persuaded that the plaintiffs case has merit. I allow the same as prayed with costs.

JUDGMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AND VIRTUALLY AT NYERI THIS 6THDAY OF JULY, 2023. In the presence of:Ms Lucy Mwai for the PlaintiffNo appearance for the DefendantsCourt assistant – Kendi…………………….J. O. OlolaJUDGE