[2020] KEELC 1880 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT MIGORI

ELC CASE NO. 744 OF 2017

(formely Kisii Elc Case No. 156 of 2010 )

JAMES OWUOR AMOLOsuing as legal representative the estate of

JACKTONE AMOLO OYARE........................................................PLAINTIFF

VERSUS

PETER ADONGO OKONGO.................................................1ST DEFENDANT

JOHN ANGIRO ADUKE........................................................2ND DEFENDANT

MARY AWACH.......................................................................3RD DEFENDANT

JUDGMENT

A. INTRODUCTION

1. The suit property is title number Kanyamkango/Kajulu/488 measuring approximately thirteen point four (13. 4 hactares in area. It is located in Kajulu II in Kanyamkago within Migori County. The said property was registered in the name of the 1st defendant son of the late Pius Okongo (deceased) and subdivided in the name of 2nd and 3rd defendants. Previously, the said property was registered in the name of JACKTONE AMOLO OYARE (Deceased original plaintiff) who was the father of the plaintiff and filed this suit on 9th June 2010 by way of a plaint dated 3rd June 2010.

2. Simultaneously filed with the plaint was an application by way of chamber summons of even date wherein the deceased original plaintiff sought a temporary injunction to restrain the 1st defendant from in any way interfering with, wasting, damaging, alienating, constructing and or doing anything on the suit property pending the hearing and determination of the suit. On 30th June 2010, Makhandia J ( as he then was) allowed the application in the terms sought therein.

3. As the suit was pending on 27th September 2011, an order was issued in Migori Senior Principal Magistrate’s court Misc. Application No. 37 of 2010 (hereinafter referred to as the Migori Magistrate’s Miscellaneous case) for eviction of the deceased original plaintiff from the suit property. Thereafter the deceased original plaintiff filed an application by way of notice of motion dated 3rd October,2011 in this suit for a stay of execution of eviction orders issued in the Migori Magistrate’s Misc case and on 5th October 2012, the motion was conditionally allowed by R. Lagat Korir J. On 6th May 2014 the court (Mutungi J) ordered a stay of the eviction orders on condition that the deceased original plaintiff would execute a bond sum of Kshs. 100,000/= as a security for costs within sixty (60) days from the date of the order. Thus the court allowed the deceased original plaintiff’s notice of motion dated 24th February 2015 in terms of amendment of the plaint to enjoin the 2nd and 3rd defendants in the suit.

B. REPRESENTATION:

4. The plaintiff is represented by Mr. Moracha learned counsel of Moracha and Company Advocates. Initially, the firm of Erick Ntabo and Company Advocates appeared for the plaintiff.

5. The 2nd and 3rd defendants are represented by learned counsel Mr. S. Ndege of S. Ndege and Company Advocates. Previously, J.O Magolo and Company Advocates and Mudeyi Okumu and Company Advocates at different times appeared for 1st defendant who had originated this suit in person.

C. SUMMARY OF THE PLAINTIFF’S CASE:

6. By an amended plaint dated 24th February 2015 and filed on even date pursuant to the ruling of the court (Okongo J rendered on 27th August, 2015, the plaintiff is seeking the following reliefs:-

a) Cancellation of title issued to the 2nd and 3rd defendants’ known as Kanyamkago /Kajulu/488 and rectification of register thereof to have the name of the plaintiff James Owuor Amolo entered in the register in his place and on his failure to surrender title, the executive officer of the Honourable Court to sign necessary transfer documents.

b) Costs

c) Interest on (b) above

d) Any other alternative relief this honourable court may deem fit to grant.

7. The gist of the plaintiff’s claims is that in 1970s the deceased original plaintiff bought the suit property from deceased father of the 1st defendant. It was then transferred and registered accordingly. On 11th December 2014, upon search at Migori Land Registry, the plaintiff discovered that the property was registered in the name of the 2nd and 3rd defendants in lieu of the deceased original plaintiff who had passed away on 5th March 2012. That the plaintiff and his family have occupied the suit property for over thirty nine (39) years. That the registration of the property in the name of the 2nd and 3rd defendants, is fraudulent thus provoking the instant suit.

D. SUMMARY OF THE DEFENDANTS’ CASE:

8. The 1st defendant in this statement of defence and counterclaim dated 2nd July,2011 and filed on 4th July 2011, denied the plaintiff’s claim and sought the following orders:-

a) An order that the plaintiff do hand over vacant possession of the suit property to the defendants.

b) Costs of and incidental to this suit and interest at court rates.

c) Any other or further relief this honorable court may deem fit and just to grant.

9. Briefly, the 1st defendant states that he is the bonafide registered owner of the suit land. That the deceased original plaintiff wrongfully, illegally and or fraudulently uttered transfer documents to the District Land Registry at Migori purporting that the deceased father of the 1st defendant that transferred the suit property to him in the year 2000. That the deceased original plaintiff was subsequently charged and convicted of forgery and uttering false documents in respect of the title to the suit property at Migori Senior Principal Magistrate court in Criminal case No. 519 of 2002; Republic Vs- Caleb Owuor Agik and another(herein after referred to as the Migori Criminal case). That the deceased original plaintiff’s title to the suit property was cancelled accordingly.

10. In their statement of defence and counterclaim dated 3rd August 2016 and filed on 4th August 2016, the 2nd and 3rd defendants state that they are the duly registered proprietors of the suit property having lawfully purchased the same from the 1st defendant free from any encumbrances whatsoever. They affirmed that the deceased original plaintiff was found guilty of forgery of title documents of the suit property in the Migori Criminal case.

11. Wherefore in the counterclaim, the 2nd and 3rd defendants have sought orders that :-

i. An order directing the defendant do give vacant possession of the suit land to wit; Kanyamkago/Kajulu/488.

ii. In the alternative, the defendant to vacate the suit land known as Kanyamkago/Kajulu/488 with the assistance of court bailiffs and the District officer Uriri Division to provide security.

iii. Costs of the suit.

iv. Any other relief that this honourable court may deem opt to grant.

12. The plaintiff reiterated his entire amended plaint and denied the 2nd and 3rd defendant’s statement of defence and counterclaim by his reply thereto dated 24/8/2016. He states that the suit property cannot have two registered proprietors at the same time. That the deceased original plaintiff was acquitted of charges in the Migori Criminal case. He pleaded particulars of illegalities on the part of the defendants and urged the court to dismiss the defence and the counterclaim of the defendants with costs and interest.

E. SUMMARY OF THE EVIDENCE OF THE PARTIES:

13. On 18th April 2018, the plaintiff (PW1) adduced evidence that the deceased original plaintiff filed the present suit before he passed on prompting the plaintiff to obtain a grant of letters of Administration intestate in respect of the state. He relied on a copy of title deed to the suit property and other documents as per his list of documents dated 21st March, 2011 (PExhibits 1 to 3) which include a copy of title of the suit land.

14. The 1st defendant (DW1) testified by relying on his statement dated 16th January 2018 and filed on 17th November 2018. He also relied on his list of documents dated 3rd August 2016 (DExhibits 1 to 14) which include a copy of the title of the suit land (PExhibit 1) agreement of sale dated 14th May 2012 (PExhibit 4) and letter of consent of the Land Control Board dated 16th May 2012 (PEXhibit 14).

15. The 2nd defendant (DW2) testified that he bought the suit property from DW1 as shown on DExhibit4. He relied on his statement dated 3rd August 2016 and filed on 4th August 2016.

F. THE PLAINTIFF’S SUBMISSIONS:

16. The plaintiff’s counsel filed submissions dated 30th November 2018 wherein he stated, inter alia, that he is the legal representative of the estate of the deceased original plaintiff who bought the suit property from the 1st defendant’s deceased father at Kshs. 40,000/=. That the application dated 3rd June 2010 for an order of temporary injunction was granted by the court and that DW 1 never obeyed the injunction as he sold the suit property to the 2nd and 3rd defendants. That the 2nd registered proprietor of the suit property was the deceased original plaintiff whose title was never cancelled and or recalled.

17. Learned counsel for the plaintiff cited section 30 (2) (a) of the Land Registration Act, 2012and also relied on the case of John Kiine Musharu –v- Ole Tasur Koonti Kisii ELCC number 11 of 2009 consolidated with Kisii ELCC Number 28 of 2009, Koonti Ole Tasur –v- John Kiine Musharu in support of this submissions.

G. THE DEFENDANTS’ SUBMISSIONS

18. Learned counsel for the defendants filed submissions dated 21st November 2018 wherein he provided the background of the suit, brief facts of the case and it’s status. He framed ten (10) issues for determination which include:-

i. What is the effect of the Judgments in Criminal case No. 519 of 2002 and SPMCC Misc. Application no. 37 of 2010?

ii. Is there cause of action disclosed in the current case ie ELC NO. 156 OF 2010 against the defendant?

iii. Did the defendants jointly or severally participate in any of the alleged fraud as particularized in paragraph 7 of the amended plaint or at all?

iv. Is there a claim of adverse possession of the suit land made out in the plaint?

v. Are the 2nd and 3rd defendants (ie the new owners of the suit property) entitled to the order of eviction against the plaintiff/occupants?

19. Counsel also submitted that the plaintiffs failed to specifically plead and prove his claim on a standard below beyond any reasonable doubt.

20. Counsel further submitted that the plaintiff has not proved his case on a balance of probability. He urged the court to dismiss the plaintiff’s suit with costs and allow the defendants’ counterclaim which has been proved to the required standard namely above the usual standard in Civil cases namely on a balance of probability.

21. To buttress his submissions, counsel relied on the following authorities:-

a) Esther Ndegi Njiru and another –v- Leonard Gata (2014)eKLR

b) Alice Chemutai Too –v- Nickson Kipkirui Korit and 2 others (2015) eKLR.

c) Lawrence P. Muriuki Mungai Attorney of Francis Muruki Mwaura –v- A.G. and 4 others (2017) eKLR

H. ISSUES FOR DETERMINATION

22. I have carefully examined the entire pleadings, evidence of the parties and submissions including authorities cited in this suit. I am guided by the decision of the Court of Appeal in Great Lakes Transport Co. (U) Ltd –v- Kenya Revenue Authority ( 2009) KLR 720 regarding issues for determination in a suit. I take into account issues framed in the defendants’ submissions and embrace them accordingly.

I. ANALYSIS OF EVIDENCE:

23. It was the evidence of the plaintiff (PW1) that he was issued with letters of administration and obtained title to the suit property (PExhibit 1). He also stated that the name of the 1st defendant (DW1) appears on the certificate of official search (PExhibit 2). That his father bought the property from father of DW1 and that he has lived on the property since 1970.

24. During cross- examination, PW1 stated that he is the registered owner of the suit property and that the deceased original plaintiff was convicted and fined by court. That the (PW1) had no agreement and transfer in relation to the property. He testified in examination in chief, inter alia;

“ I stay on the land. My five brothers and sisters also live on the land”

25. According to DW1,the suit property is registered in his name prior to 6th July, 2012. That he acquired the property on 21st October 2008. He produced letters of administration dated 7/4/2008 (DExhibit 8) and others (DExhibit 1,2 and 3) in support of his claim.

26. DW1 further stated that DExhibit 1 in his name. That DExhibit 2 is the name of DW2. On cross examination, DW 1, stated in part that :-

“I transferred the suit land in a year. I cannot recall. I do not stay on the suit land.”

27. It is noted from the evidence of DW 2 that he relied on DExhibit 4 and 5. Quite plainly, DW 1 and DW2 obtained the suit property by the prescribed procedure as revealed by DExhibits 4,5,8,12, 13 and 14.

28. There are allegations of fraud against the defendants at paragraph 7 of the amended plaint, Black’s Law Dictionary 10th Edition defines the term “FRAUD” as follows:-

“A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.”

29. It is trite law that any allegation of fraud must be pleaded and strictly proved to the standard of proof required of him which is obviously higher than that required in ordinary Civil cases, namely proof upon a balance of probabilities but certainly not one beyond a reasonable doubt as in criminal cases ; see Ndolo –v- Ndolo (2008) 1KLR (G and F) 742.

30. The purported transfer of the suit property on 20th April, 2000 as per DExhibit 9 and on 22nd September 2009 as shown on PExhibit 1 was fraudulent and irregular. This is notable from DExhibit 10 that the deceased father of DW1 died on 30th June 1988 yet the court held that the said deceased died in 1998 see (DExhibit 5 at page 3). It is quite clear from the DEXhibits 5 that the deceased original plaintiff did not appeal for the judgment. Wherein he was guilty and convicted; seeEsther Wanjiru case (supra).

31. The defendants contend that the plaintiff did not state that he is legal representative of the estate of the original plaintiff. I am aware that the estate of the deceased is vested in the legal representative as defined under section 2 of the Civil Procedure Act (Cap 21).

32. In the case of Omari Kaburu –v- ICDC (2007) eKLR , Wanjiru Karanja J (as she then was ) rendered herself thus;-

“ the law is that the grant is what clothes a person with locus standi to stand in and sue on behalf of the estate of the deceased.”

33. It follows that there was lawful transfer of the suit property by way of DExhibits 12,13 and 14 to DW2 and 3rd defendants. So, DExhibit 2 which is in favour of the 1st defendant (DW1) was not fraudulent in the obtaining circumstances.

34. To that extent, 2nd and 3rd defendants were lawful purchasers of the suit property; see Kuria Greens Ltd –v- Registrar of Titles and another (2011) eKLR by Musinga J (as he then was) and Lawrence Mungai case (supra)

35. It must be borne in mind that section 143 repealed Registered Land Act (Cap 300)under which the suit property was registered provided for title cancellation through order of the court; see Musharu case (supra).Interestingly, the plaintiff did not lay a claim for adverse possession in respect of the property and has not proved the same or all as per the dictates espoused by the Court of Appeal in Wilson K. Katana and 101 other –v- Salim Abdallah Bakshwein and another (2015) eKLR. Article 40 (1) of the constitution of Kenya 2010anchors secure protection of right to property as read with Section 152 of the land Act prohibits unlawful occupation of public, community ad private land apply in favour of the 2nd and 3rd defendants in the present suit.

CONCLUSION AND DETERMINATION:

36. In the final analysis, I find that the plaintiff’s claim has not been proved against the defendants (counter claimers) on a balance of probability. On the other hand, the 2nd and 3rd defendant’ counter claim has proved accordingly.

37. A fortiori, the plaintiff’s suit be and is hereby dismissed with costs to the defendants. I enter judgment for the 2nd and 3rd defendants, jointly and severally against the plaintiff in terms of orders (a) and (b) of their counterclaim dated 3rd August 2016 with costs.

38. For avoidance of doubt, the eviction of the plaintiff (defendant in the counterclaim) from the suit property shall be in accordance with Section 152 B of Land Act,2016 (2012).

Orders accordingly.

DELIVERED, DATEDandSIGNED at MIGORI this 20th day of March 2019.

G.M.A. ONGONDO

JUDGE

In the presence of: -

No appearance for Plaintiff -

No appearance for the Defendants-

Tom Maurice – Court Assistant.