[2013] KEHC 1554 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

ENVIRONMENT & LAND COURT

CIVIL CASE NO.48 OF 2011

JAMES MURIUKI KANGARA....................................................PLAINTIFF

VERSUS

GEORGE MWANGI KANGARA)

KANGARA MWANGI )....................................................DEFENDANTS

J U D G M E N T

James Muriuki Kangara (hereinafter referred to as the plaintiff) is a younger brother of George Mwangi Kangara (hereinafter referred to as the 1st defendant) whilst Kangara Mwangi (hereinafter referred to as 2nd defendant) is the son of the 1st defendant.

At all material times Land parcel No.KIRIMUKUYU/MBOGOINI/255 belonged and was registered in the name of Kangara Ndegwa (deceased) who was the father of the plaintiff and 1st defendant.

The plaintiff contends that the registration of ownership in the names of the defendants was done illegally and fraudulently.

The plaintiff's claims on fraud are based on allegations that the defendants caused the removal of the original registered owners name and replaced it with theirs without following the legal process and that the defendants could not have been the registered owners of this land in 1959 because the original owner was alive and the second defendant was not even born. Moreover that the second defendant could not have been registered in this title in 1975 as he was just a minor. Lastly that the interference with this title to show a change of ownership in 1959 and in 1977 was outright illegal and a criminal act perpetrated by the defendants.

The plaintiff avers that these illegal acts were committed by the defendants with the sole intention of denying him his right to inherit their father's land.

The plaintiff avers that their father who died in 1977 had informally sub-divided this land equally between him and the first defendant and they occupy the same as such and that despite the illegal transactions done by the defendants, they hold this land in trust for him and the same should be terminated.

The plaintiff avers further that save for the Karatina S.R.M Succession Cause number 22 of 2000 in respect of the estate of their father, there has been no suit in any court involving them on this parcel of land.

The plaintiff prays for orders that this court declares that the defendants hold the parcel of land KIRIMUKUYU/MBOGOINI/225 in trust for the plaintiff and that the defendants be ordered to terminate the trust and transfer half of the land to the plaintiff.

The plaint was accompanied with the statement of the plaintiff whose import is that the plaintiff sued his brother George Mwangi and his son Mwangi Kangara for transferring to themselves the land that belongs to their father.He states his father Kangara Ndegwa died in 1977 and left 2 sons and one daughter that is George Mwangi, himself and Virginia Wanjiku Githogori who is married.

Kangara Ndegwa had two parcels of land namely Kirimukuyu/Mbogoini/225 and Kirimukuyu/Gachuiro/536. The two parcels of land are supposed to be shared between George Mwangi and himself equally. In the year 2000, George Mwangi filed Succession Cause No.SRM.SUCC.22 of 2000 at Karatina. Since the estate of Kangara Ndegwa was to be shared equally, he did not object. The succession proceedings were completed, however when they took the transmission documents in lands office, they found George Mwangi and his son had transferred to themselves parcel of land KIRIMUKUYU/MBOGOINI/225 and an attempt to rectify the grant failed.

The plaintiff realized that the two intended to deprive him of his inheritance from his father. If they knew that the parcel of land was in their names, then why file succession cause in respect of the same.

According to him it is abundantly clear that if he does not claim this land through a civil claim, he might lose his entitlement yet they share the suitland equally and they have both lived and occupied the same since 1975. .

The 1st defendant filed a statement of defence whose import was that paragraphs, 2, 3 and 4 of the plaint were admitted save that the deceased Kang'ara Ndegwa alias Kang'ara Mwangi caused the suit property to be registered in his name and the 1st defendant in the year 1959 in equal shares.

The contents of paragraphs 5 and 6 of the plaint together with the particulars of fraud attributed on the 1st defendant were denied and the plaintiff put to strict proof. The 1st defendant also denied the allegation that he caused the removal of the name of Kang'ara Ndegwa from the register and substituted it with the names of Kang'ara Mwangi and G. Mwangi Kang'ara as alleged and that he caused any change of ownership in the title Kirimukuyu/Mbogoini/255 in 1977 or at all or otherwise interfering with lands records in 1977 as alleged or at all. The 1st defendant avers that the said parcel of land is registered in the name of the 1st defendant and Kang'ara Ndegwa alias Kang'ara Mwangi the latter being their late father.

The 1st defendant further admitted the contents of paragraph 7 of the plaint and averred that the plaintiff and the 1st defendant are the lawful heirs of the suitland and their father's estate comprised in L.R. KIRIMUKUYU/MBOGOINI/225 and as confirmed by the Karatina SRM's Court vide Succession Cause No.22 of 2000.

The 1st defendant categorically denies that the 2nd defendant has any legal interest in the suitland as alleged by the plaintiff.

In essence, the 1st defendants, defence was an admission of the claim by the plaintiff.

On his part, the 2nd defendant filed his defence on 28/6/2011 where he admits the descriptive parts of the plaint but denies the rest of the same. He states that the plaintiff's claim is misplaced as he could not claim that there exists a trust and at the same time claim that registration of the defendants as joint owners was done fraudulently.

The 2nd defendant avers that the plaintiff was an adult in 1959 and 1977 and hence a minor could not have been registered as a trustee for an adult and If Kang'ara S/O Ndegwa had wanted to give land to the plaintiff he could have done so expressly. The late Kang'ara S/O Ndegwa did the registration transactions of both of his lands and left the title deeds with the then Chief of Kirimukuyu the late Gitahi in the early 1980's.

Further the 2nd defendant pleads that the suit is misplaced as he participated in Karatina Succession Cause No.22 of 2000 involving the estate of Kangara S/O Ndegwa and he informed the court that the land property belonged to the defendants.

The matter came for hearing on 19/3/2013 when Mr. Kebuka Wachira appeared for the plaintiff and Mr. Muthigani appeared for the defendant. Both plaintiff and 1st defendant were present while the 2nd defendant was absent despite being served.

The plaintiff testified that he knows the 1st defendant as they are brothers whilst the 2nd defendant is the 1st defendant's son. He adopted what he says in his statement and asked the court to help them share their land, Kirimukuyu/Mbogoini/225 that belonged to Kangara Ndegwa, their father. He lives on the parcel of land with his family. The brother who is the 1st defendant has no problem sharing the land with the plaintiff.

His father had another parcel of land being Kirimukuyu/Gachuiro/536 which the plaintiff and 1st defendant shared equally . He asked for costs from the 2nd defendant.

On cross-examination by Mr. Muthigani, it was established that the land was registered in the name of Kangara S/O Mwangi and Mwangi S/O Kangara. That means the land was registered in the name of the plaintiff's father and the 1st defendant and not the 2nd defendant.

The 1st defendant also testified on oath and stated that he stayed in Kirimukuyu Mbogo-ini. He knows James Muriuki Kangara the plaintiff as his blood brother and the 2nd defendant as his son. The 2nd Defendant, who was born on 30/5/1967 is known as Kangara Mwangi as he was named after his grandfather. However, In his identity card he is known as John Kinyua Mwangi. . The land in issue was registered in the year 1959 in the names of the father of the plaintiff and 1st defendant, and the name of the 1st defendant. The father to both the plaintiff and defendant had two names, thus Kangara Mwangi and Kangara son of Ndegwa.

The Kangara Mwangi in the register refers to their late father who is the grandfather to the 2nd defendant. He stated that the plaintiff is entitled to half share of the deceased's parcel of land. The land is occupied in half shares by the plaintiff and the 1st defendant.

I have read the pleadings and considered the evidence by the plaintiff and the 1st defendant and do find that the defendant's evidence is an admission of the claim by the plaintiff. I do find that the land in dispute was registered in the names of the father of both the plaintiff and the 1st defendant. The second defendant only attempts to take advantage of similarity of his name and the name of his deceased's grandfather as the property was registered in the name of Kangara Mwangi in the year 1959, 8 years before the 2nd defendant was born and therefore the 2nd defendant cannot stake claim on the parcel of land.

The 2nd defendant never came to court to give evidence despite being severed with a hearing notice and therefore I do find that he has failed to prove his allegations.

To reach a valid determination the court has considered the provision of Sections 28, 126 and 141 of the Registered Land Act Cap 300 laws of Kenya (repealed).

Section 28 provides that the rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in the 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 tothe leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; andunless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require notice on the register:

Section 126 (1) provides that aperson acquiring land, a lease or a charge in a fiduciary capacity may be described by that capacity in the instrument of acquisition and, if so described, shall be registered with the addition of the words “as trustee”, but the Registrar shall not enter particulars of any trust in the register.

Section 143 provides that subject to subsection (2), the court may order rectification of the register by directing that any registration be canceled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake.

The above sections especially section 126 contemplated the holding of land in trust and the registration of the person as a trustee. There is a school of thought that believes that the word “may” in Section 126 (1) was mandatory and that it meant, and should read, “shall”. This I understand to mean that unless a registered owner is described as a trustee in the instrument of acquisition of land there can be no trust and the land cannot be said to be held in trust and therefore in this case since the 1st defendant was not registered as a trustee in the instrument of title, he cannot be said to have held half of the land in trust for the plaintiffs. I do not agree with this school of thought.

In Mwangi Muguthu -VS- Maina Muguthu (unreported) Madan J held, and I agree with the holding, that as regards Section 126 ,, there is no need to register the defendant as a trustee due to the fact that he was registered as an owner as the eldest son of the family in accordance with Kikuyu custom which has the notion of trust inherent in it. Ordinarily in pursuance of Kikuyu Custom he would have transferred a half share in land to the plaintiffs but he did not. In any event the section does not make registration as trustee obligatory as it states a person may be described in that capacity. Under Section 143 of the repealed Act a first registration could not be attacked even if it was obtained, made or omitted by fraud or mistake however this section does not exclude recognition of customary trust provided that it can be established by evidence. Parliament did not intend to abolish the Kikuyu customary law by enacting Cap 300 Laws of Kenya( repealed) and I believe that is why the word may is used as opposed to shall. However I do find that even if the word shall was used, for the court to reach an informed decision other factors such as the object or scope of the enactment and the consequences flowing from such construction may be considered as they may rebut the presumption that the use of the word shall makes a particular provision imperative. When a statute uses the word “shall” prima facie it is mandatory but the court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute. Customary trust is made orally and and is implied and therefore can only be proved by statements of those claiming that it exists hence is not registrable.

This court has a duty to protect the rights and privileges of the people and not to discard them. In my opinion the plaintiff is entitled to succeed in any event as he has proved that there existed a trust in land parcel KIRIMUKUYU/MBOGOINI/225 though not registered as such.

I do find that the plaintiff has proved on a balance of probabilities that the suit property KIRIMUKUYU/MBOGOINI/225 is held in trust for the plaintiff.

The court orders that the 1st defendant shall terminate the trust and transfer half of the land to the plaintiff. Costs to be paid by the 2nd defendant.

Dated, signed and delivered at Nyeri this 6th day of November2013.

A. OMBWAYO

JUDGE