[2020] KEELC 258 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KITALE

LAND CASE NO. 77 OF 2018

THE ESTATE OF JOSEPH RAMINYA

(Represented by

MARGARET AWUOR RAMINYA)..................................................PLAINTIFF

VERSUS

TUWAN FARM LIMITED........................................................1ST DEFENDANT

WILSON JUMA OMOLLO..................................................2ND DEFENDANT

JUDGMENT

INTRODUCTION

1. By a plaint dated 9/8/2018 and filed on the even date, the plaintiff sought the following orders against the defendants:-

(a) A declaration that the transfer of title number Kitale Municipality Block 2/Tuwan/2911 by the 1st Defendant to the 2nd Defendant was fraudulent.

(b) An order cancelling the title for parcel No. Kitale Municipality Block 2/ Tuwan/ 2911 and further that the 2nd Defendant do surrender to the County Land Registrar the title for the said parcel and failing which the Land Registrar do gazette the cancellation.

(c) An order that the 1st defendant do transfer the land parcel No. KITALE MUNICIPALITY BLOCK 2/TUWAN/2911.

(d) A permanent and a temporary injunction.

(e) Costs.

(f) Interest.

(g) Any other order or relief that this court may deem fit to grant.

PLEADINGS

The Plaint

2. In the plaint, the plaintiff, the estate of the late Joseph Raminya through Margaret Awuor Raminya, the deceased’s widow, states that the 1st defendant owned the land comprised in LR No. 8813 situate in Kitale Municipality and which land was subsequently shared out among the shareholders of the 1st defendant; that the late Joseph Raminya was at all material times a shareholder of the 1st Defendant ; that after the LR No. 88134 got surveyed and subdivided and a survey map and area list prepared where the late Joseph Raminya was allocated plots Nos. 2908, 2909, 2910 and 2911; that the late Raminya took possession of the suit land and upon his death on 30/3/1997 his estate remained in possession thereof and that his name in the register was substituted with that of Margaret Awuor Raminya; that on 12/11/2001, Margaret Raminya was issued with a share certificate No. 1381 indicating that she was the proprietor of the four plots; that the share certificate was signed and sealed by the officials of the 1st defendant; that the plaintiff has a permanent building constructed on plot No. 2911.

3. The plaintiff further averred that on the 14/6/2013, the plaintiff paid the fees for the processing of her titles, the 1st respondent collected Kshs. 15,000/= and which was indicated to be for three plots and not for the four plots owned by the plaintiff; that the plaintiff was subsequently issued with the title for parcel Nos. Kitale Municipality Block 2/Tuwan/2908, 2908and 2910; that the 1st defendant could not offer any explanation as to why the title processing fees for plot No. 2911 could not be received; that it later transpired that the title for the said parcel had been issued to the 2nd defendant illegally and fraudulently.

The 2nd Defendant’s Defence

4. The 2nd defendant filed a statement of defence on 24/1/2020. He denied the claim and stated that his late wife Risper Juma was on the 14/1/2002 issued with a certificate No. 1308 in respect to her membershipNo. 3336 over plotNo. 2911 by the 1st defendant; that upon the demise of his aforesaid wife on 26/10/2007, he was issued with the letter of administration of the estate of Risper Sherry Juma whereupon plot No. 2911 was transferred to his name and a title subsequently issued on 5/11/2013.

5. The defendant avers that the transfer of KITALE MUNICIPALITY BLOCK 2/ TUWAN/2911 into his name was done legally and not through fraud.

The Plaintiff’s Evidence

6. The plaintiff testified on 17/11/2020. Her evidence accorded with the plaint. She stated that she is the wife to the late Joseph Raminya who died in 1997; that the late Raminya had bought land from the 1st defendant sometime in 1978; that after it was surveyed, his land yielded 4 plots namely 2908, 2909, 2910and2911; that the late Raminya met his demise on 30/3/1997; that the share certificate No. 1381 was later issued in her name; that plot No. 2911 has a permanent building while the rest have semi-permanent houses; that the 2nd defendant has a plot across the road which separates their land; that it was after she wanted to process the title for the suit lands that she learnt that plot No. 2911 had been irregularly and fraudulently transferred to the 2nd defendant; that plot No. 2911 has a house which was built long ago and that there are tenants thereon; that the 2nd defendant has never taken possession of plot No. 2911; that she placed a caution on plot No. 2911 after she discovered that the same had been transferred by the 1st defendant to the 2nd defendant. On cross-examination by Counsel Bisonga, PW1 denied ever being summoned to return the certificate for rectification.

The Defence Case

7. The 2nd defendant, though represented by counsel in the suit, did not testify at the trial. His counsel who was present throughout the trial indicated that in the circumstances of the hearing he would not be calling any witness. The background was that the defendant’s documents had been expunged from the record on the first morning of the trial since they were filed out of time without leave of court. It is quite unfortunate that the 2nd defendant had counsel on the record who waited till the last minute to comply with the rules by filing documents without as much as filing an application seeking that they be deemed as properly filed and served, omissions which this court considers not only unreasonably presumptuous but also great disservice to the case management process. To this I state that it is proper to leave matters to prayer and to God. However I add that the taking of earthly steps stipulated in compliance with the Civil Procedure Rules in fairness to one’s adversary in a suit is an added mark of faith in the litigation process before court.

SUBMISSIONS

8. The parties were directed to file submissions on 17/11/2020. The plaintiff’s submissions were filed on 4/12/2020. I have perused the court record and I have not found the defendants submissions.

DETERMINATION

9. I have considered the pleadings, the evidence and the filed submissions. The issues that arise in this suit are: -

(a) Who is the proper allottee of the suit land?

(b) What Orders should issue?

10. The issues are discussed as hereinbelow:-

(a) Who is the proper allottee of the suit land?

11. From the pleadings on record, both contesting parties claim to own the suit land namely KITALE MUNICIPALITY BLOCK 2/ TUWAN/2911. PW1, the plaintiff gave a chronology of how she came to know the alleged fraud and transfer of the suit land to the 2nd defendant by the 1st defendant.

12. Section 25 of the Land Registration Act provides as follows:

“25. (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-

(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

(b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.

(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.”

13. It is clear that the provisions that govern the cancellation of title on the basis of fraud illegality or existence of an illegal scheme are contained in Section 26 of the Land Registration Act which reads as follows:

“26. (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 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.

(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.”

14. The plaintiff produced a share certificate which showed that she had been allocated the suit land. This evidence by the plaintiff was not challenged.

15. The evidence of the plaintiff is that the land purchased by her husband was subdivided upon survey to yield 4 plots being Plots No. 2908, 2909 2910and2911. These plot numbers were endorsed on her share certificate issued to her by the 1st defendant. Her evidence is that plot number 2911 has an old permanent building and that the 2nd defendant has a plot which is located across the road away from the plaintiff’s plots. She also testified that the suit land has been in her continuous possession and the 2nd defendant has never been in possession thereof. This evidence was not challenged.

16. In this court’s view there could be no probable reason for issuance of a share certificate having plot No. 2911 to the plaintiff by the 1st defendant save that the plot was a subdivision of the land owned by her late husband. The 1st and 2nd defendants never called evidence to disown the said share certificate.

17. A share certificate issued to a shareholder by a company is an accountable document. It can not be wished away willy-nilly by anyone who desires to appropriate whatever material interests it represents. There could be no other explanation for the transfer of the plot and its registration in the 2nd defendant’s name while that share certificate existed save some exercise of fraud on the part of the officers of the 1st defendant in collusion with the 2nd defendant who clearly had an interest to appropriate the suit land. Where fraud has been proved against the holder of a title in the acquisition thereof, that impugned title deserves to be cancelled.

18. In this court’s view the plaintiff has proved her case against both defendants in this suit on a balance of probabilities.

(b)What Orders should issue?

19. Having found that the plaintiff has proved her case against the two defendants on a balance of probabilities I enter judgment in her favour and I issue the following orders:-

(a) A declaration that the transfer of parcel No. KITALE MUNICIPALITY BLOCK 2/TUWAN/2911 by the 1st defendant to the 2nd defendant was fraudulent.

(b) An order cancelling the title for parcel No. KITALE MUNICIPALITY BLOCK 2/TUWAN/2911 issued in the 2nd defendant’s name and further that the 2nd defendant do surrender to the County Land Registrar the title said document failing which the Land Registrar shall Gazette the cancellation.

(c) An order that the County Land Registrar shall register land parcel No. KITALE MUNICIPALITY BLOCK 2/TUWAN/2911 in the name of the plaintiff.

(d) An order of permanent injunction restraining the 1st and 2nd defendants from in any manner interfering with title No. KITALE MUNICIPALITY BLOCK 2/TUWAN/2911.

(e) The defendants shall bear the costs of this suit.

It is so ordered.

Dated, signed and delivered at Kitale via electronic mail on this 17th day of December, 2020.

MWANGI NJOROGE

JUDGE, ELC, KITALE.