[2015] KEHC 2007 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELCA NO. 132 OF 2014

(Formerly HCA 42 OF 2012)

JOHN MWANGI KIMANI .................................. APPELLANT

-VERSUS-

GACHUMA GACHERU .................................... RESPONDENT

JUDGMENT

1. By a plaint dated 20th July, 2004, the appellant John Mwangi Kimani, instituted a suit in the lower court to wit, Muranga SPMCCC No.288 of 2004 seeking judgment against the respondent for:-

a) An order directing the Land Registrar Muranga to rectify the register in respect of the suit land (title No. Loc./Kionjoini/315 by cancellation of the transfer and registration of the Defendant (read the appellant) as the proprietor thereof and to reinstate the first registration of Isaac Kimani Gachii alias Kabogo Gatawa (deceased).

b) Costs of the suit together with interest thereon at court rates.

c) Such further or other relief as the Honourable Court may deem fit and just to grant.

2. In his case before the lower court, the appellant, inter alia, contended that sometimes in the year 1977, the respondent fraudulently caused the suit land to be transferred to himself. The alleged actions and/or inactions constituting fraud on the part of the respondent are listed in paragraph 6 of the plaint.

3. In his statement of defence, the respondent denied all the allegations of fraud levelled against him and put the appellant to strict proof of the allegations.

4. Upon considering the case presented before her, the trial magistrate (TM), J. Gathuku (RM) held:-

“... I find that the allegations of fraud are not proved as against the defendant and find no need to dwell on the issue of jurisdiction of this court.

The upshot of it all is that the plaintiff has failed to prove his case on a balance of probability. The suit fails with costs to the defendant.”

5. Aggrieved by the aforementioned decision the appellant filed an appeal to this court contending that the learned TM:-

1. ignored her own orders which culminated in crucial evidence in the form of a letter by the ministry of state for immigration and registration of persons dated 24th November, 2010;

2. failed to recognize that there was enough evidence to prove that the transfer which was the gist of the whole suit was not genuine;

3. failed to consider the evidence on record;

4. relied on the defendant’s own handwritten document in support of the claim exclusively;

5. failed to recognize that in 1970’s no land transaction would have occurred without a witness;

6. failed to consider the evidence adduced judiciously; and

7. failed to use the tenets established to deliberate a land matter and failed to use procedure.

6. This being a first appeal, it is my duty to analyze and re-evaluate the evidence adduced before the lower court and come to my own conclusions bearing in mind that I did not see or hear the witnesses. See Selle v Associated MotorBoats Co. Ltd [1968] EA 123 where the duty of the first appellate court is to re-evaluate the evidence and draw its own conclusions is discussed. Also see Brasegirdle vOxney [1947] 1 ALL ER 126 where it was held that a first appellate court would only interfere with the conclusions of a trial court if they were unsupported by the evidence on record.

7. As pointed out above, the appellant’s claim against the respondent was premised on allegations that the respondent’s registration as the proprietor of the suit property was procured fraudulently. The following are the particulars of fraud urged against the respondent:-

a) the registered proprietor of the suit land Isaac Kimani Gachii alias K Kabogo Gatawa did not at any time agree to sell or transfer the suit land to the defendant and any purported agreement to sell or transfer the suit land by the plaintiff’s father to the defendant is a forgery;

b) the plaintiff’s father did not at any time apply for or obtain consent of relevant Land Control Board to sell and/or transfer the suit land to the defendant or any other person and any purported application to sell and/or transfer the same by the plaintiff’s father to the defendant can only be a forgery.

c) The plaintiff’s father was not paid and did not receive the purported consideration of Kshs.15,000/= or any other valuable consideration for the purported sale and transfer of the suit land to the defendant.

d) There was no consent of the Land Control Board to the purported transfer of the suit land from the plaintiff’s father to the defendant and such consent if any must have been fraudulently obtained and therefore a nullity;

e) The defendant transferred the suit land to himself without knowledge of the plaintiff’s father and in abuse of trust bestowed upon him by the deceased;

f) In all circumstances of the case transfer of the suit land to the defendant was effected in contravention of the Land Control Act Cap 302 the Law of Contract Act and the Registered Land Act Cap 300.

8. The evidence/testimonies of the witnesses can be summarised as follows:-

The appellant who testified as P.W.1 informed the court that the suit property was registered in his deceased father’s name in 1964. At some time he could not remember his father appointed the respondent as a caretaker of the suit property as he went to look for employment. In 1986 they discovered that the respondent had fraudulently gotten himself registered as the proprietor of the suit property and registered a caution against the title that the respondent had. That caution was removed by the Land Registrar.

9. After his father passed on in 2004 he got appointed administrator of his deceased’s father estate and filed the suit hereto seeking cancellation of the title that the respondent had on the allegations listed herein above.

10. It is important to point out at this juncture that despite the appellant’s claim having been based on alleged fraud by the respondent, upon cross examination he stated:-

“I do not know what fraud the defendant committed…… I do not know how the defendant stole the shamba. I cannot tell what happened when defendant was planting tea on the shamba.”

11. John Mbogo Gichanga (P.W.2) informed the court that the suit land used to be cultivated by his mother (a sister to appellant’s father) before the respondent stopped her in 1965.

12. Concerning P.W.1’s allegation that the respondent had been appointed the caretaker of the suit property, he stated that he could not verify that allegation/fact.

13. P.W.2 informed the court that he learnt about the transfer in favour of the respondent when he accompanied P.W.1 to the lands office in 2003 to find out whether the consent to transfer the suit property was obtained. Explaining that a clerk at the Land Control Board refused to give them a letter to show that consent was not obtained; like P.W.1 he stated:-

“I do not know the fraud the defendant committed…”

14. Francis Mbuthia Wanjama (P.W.3) a District Land Registrar Murang’a, produced the documents used to effect transfer in favour of the respondent and stated:-

“There were no irregularities in the process of registration. If any were detected, registration would not have occurred. Plaintiff registered 1st caution on 27/10/86-claimed beneficiary interest. If fraud had been alleged, deregistration would have occurred. No dispute was referred to me in relation to this matter. No reason so far to recall the transfer.”

15. Concerning the allegation that the thumb print appearing on the application for consent and on the transfer form was not of the appellant’s father he stated:-

“We have no means of confirming whether the thumb print belongs to the same person. I cannot state that as a fact.”

16. With regard to the consideration paid in respect of the property he stated:-

“Consideration was stated to be Kshs. 2500/= but estimated value was given as Kshs. 15000/= by Land Registrar or valuer for purposes of stamp duty.”

17. P.W.4 Herban Karuba Karanu, a former assistant chief for the area in which the suit property is situated informed the court that the dispute concerning transfer of the suit property to the respondent was brought to his office by the appellant’s father sometimes in or about 1988. He wrote a letter to the appellant’s father summoning him to come to his office and give details of his grievances but the complainant never heeded his summons. He maintained that his office was not involved in the transfer of the suit property yet it would normally be involved in such transactions.

18. The respondent who testified as D.W.1, informed the court that he bought the suit property from the appellant at Kshs. 2500/=. After taking possession of the property, they went to Kiharu Land Control Board and obtained consent to transfer the land to him. Later on, the property was transferred to him. He produced the agreement executed between himself and the appellant’s father as Dexbt 1; a translated version of the agreement as Dexbt 2; the application for Land Control board’s consent as Dexbt 3; consent to transfer as Dexbt 5 and the transfer as P3.

19. It was on the basis of the foregoing evidence that the TM found the appellant to have failed to prove his case against the respondent on a balance of probabilities and dismissed it with costs to the respondent.

Did the trial magistrate ere by reaching the above determination?

20. In determining this question I begin by pointing out that under Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya, the duty to prove the allegations leveled against the respondent lay with the appellant. The degree of proof required was one of strict proof, but not amounting to one beyond reasonable doubt. In this regard see the case of Ratilal Gordhanbhai Patel –vs- Lalji Makanji (1957) EA 314 where the Court of Appeal for Eastern Africa established the threshold on the burden of proof required in civil cases founded on fraud. It stated:-

“There is one preliminary observation which we must make on the learned Judge’s treatment of this evidence: he does not anywhere in the judgment expressly direct himself on the burden of proof or on the standard required. Allegations of fraud must bestrictly proved, although the standard of proof may notbe so heavy as to require proof beyond reasonabledoubt, something more than a mere balance ofprobabilities is required….”. (Emphasis supplied).

Did the appellant discharge that burden?

21. Relying on the testimony to the effect that the thump print imposed on the transfer document could not be verified to be that of the appellant’s father, on behalf of the appellant, counsel for the appellant has submitted that the evidence sufficed to prove the alleged fraud against the respondent or to shift the burden of prove that the transfer was not effected fraudulently to the respondent.

22. With regard to that contention, it is noteworthy that the inability to verify whether the thump print imprinted on the transfer document is that of the appellant’s father does not amount to a conclusive finding that the thump print is not that of the appellant’s father. In the absence of any conclusive finding on that thump print, I find and hold that the appellant did not lead evidence capable of proving that the thump print was not that of his father. In that regard see Section 3(4) of the Evidence Act, Cap 80 Laws of Kenya which provides as follows:-

“3(4) A fact is not proved when it is neither proved nor disproved.”

23. A review of the evidence adduced before the lower court shows that none of the witnesses who testified in support of the appellant’s case knew or had a good reason for asserting that registration in favour of the respondent was effected by fraud. Despite having based his case on allegations of fraud, the appellant was categorical that he did not know what fraud the respondent committed. P.W.2 was also unable to say what fraud the respondent committed.

24. All the witnesses who testified in support of the appellant’s case only inferred fraud because they were involved in the transfer yet they believed they ought to have been involved.

25. Upon review of the conduct of the parties to this dispute, I cannot reasonably infer any fraud in the impugned transaction. I say this because despite having been aware of the respondent’s registration as the proprietor of the suit property since 1986, the appellant’s father did not institute any suit for recovery of the suit land during his life time or within the time limited in law for doing so.

26. The testimony of P.W.3 shows that despite having complained to the provincial administration, the appellant’s father did not follow up the matter even after being summoned to provide details of his grievances.

27. By dint of the provisions of Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya, it would appear that the appellants’ case was time barred. The said Section provides:-

“7. An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

28. In the circumstances of this case, the appellant and/or his father had waited more than 12 years before instituting the suit for recovery of the suit property. The appellant’s claim was, therefore bad in law, as it was statute barred.

29. For the foregoing reasons I find the appeal to be lacking in merit and dismiss it with costs to the respondent.

Dated, signed and delivered at Nyeri this 30th day of September, 2015.

L N WAITHAKA

JUDGE.