[2018] KEELC 2842 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURTAT THIKA

THIKA LAW COURTS

ELC CASE NO.241 OF 2017

JOHN NJUGUNA KIMUNYA..........................PLAINTIFF

-VERSUS-

TERESIA WACUKA KIMUNYA...........1ST DEFENDANT

GEOFFREY SITUMA WANYONYI.....2ND DEFENDANT

JUDGEMENT

By a Plaint dated 2nd March 2010,the Plaintiff John Njuguna Kimunya (now deceased) filed this suit and sought for the following orders against the Defendants herein:-

a) That a permanent injunction do issue against the 1st and 2nd Defendants jointly and severally barring them from alienating by way of sale, transfer or otherwise, property in LR.No.Ndumberi/Riabai/4090 and title No.Ndumberi/Riabai/4089respectively without the express orders of this court.

b) That the subdivision of land LR.No.Ndumberi/Riabai/184 be declared null and void the titles LR.No.Ndumberi/Riabai/4089 and Ndumberi/Riabai/4090 be cancelled.

c) That the 1st Defendant be ordered to subdivide the resultant LR.No.Ndumberi/Riabai/184 to the rightful successors in Kiambu Succession Cause No.142 of 2006 and in the alternative to subdivide LR.No.Ndumberi/Riabai/4090 to the rightful heirs taking into account the already alienated parcel of land.

d) The costs of the suit to the Plaintiff in any event.

The Plaintiff alleged that he is the son to the 1st Defendant being the first born son in a family of five (5) children. He further alleged that his late father Kimunya Mbutu Gichiru was the husband to the 1st Defendant and he died on 27th April 1990 as per the copy of the Death Certificateproduced as exhibit in court. Further that their later father and husband to 1stDefendant left behind land parcelNo.Ndumberi/Riabai/184comprising of 7 acres which was for the benefit of his successors and/or beneficiaries. Further that subsequent to his death, the 1stDefendant filed aSuccession Cause No.142 of 2006at Kiambu Senior Principal Magistrate’s Court and on9th January 2007, she obtained Letters of Administration to the Estate of the lateKimunya Mbutu Gichiri. He also alleged that the 1stDefendant applied for Confirmation of Grant of the said Letters of Administration and sought for consents from the beneficiaries. However, the Plaintiff refused to give his consent because he was not satisfied with the proposed mode of distribution ofLR.No.Ndumberi/Riabai/184as the 1stDefendant has sought to be solely registered proprietor for her benefit and that of her children. He further contended that at the court’s instance, he agreed to the said proposal and the Grant of Letters of Administration was confirmed.

However, after the confirmation of the said Grant, the 1st Defendant refused to subdivide the suit property LR.No.Ndumberi/Riabai/184 to the rightful heirs. He also contended that the 1st Defendant did subsequently subdivide the said parcel of land into two portions LR.No.Ndumberi/Riabai/4089and4090and thereafter soldLR.No.Ndumberi/Riabai/4089to the 2ndDefendant without the consents of the other beneficiaries. It was his contention that this action by the 1stDefendant has resulted in thealienation of the land held in trust for the beneficiaries of the estate of thelateKimunya Mbutu Gichiruand thus this move is to the detriment and disinheritance of the Plaintiff and his four other siblings. He further contended that it is for the above reasons that he has sought legal remedy as the 1stDefendant is intent on disinheriting the beneficiaries of his late father’s estate by alienating, selling and transferring of the property that she is holding in trust for them.

Simultaneous to the Plaint, the Plaintiff filed an interlocutory application for temporary injunction to preserve the suit property. The said application was allowed on 26th April 2010 and thereafter there have been several interlocutory applications and then subsequent determinations.

The 2nd Defendant had filed his Statement of Defence on 17th June 2010 and denied all the allegations made in the Plaint. He further alleged that he is a bonafide purchaser for value without Notice from the 1st Defendant who at the time of the sale was the absolute owner of the original title Ndumberi/Riabai/184. That he took possession and occupation and use of LR.No.Ndumberi/Riabai/4089, as the lawful registered proprietor and did put the Plaintiff to strict proof thereof. He also alleged that the 2nd Defendant’s suit was incompetent, fatally defective for lack of locus standi to bring the suit herein. He had urged the Court to dismiss the suit. This statement of defence had been filed by Muchangi Nduati & Co. Advocates, who filed a Memorandum of Appearance for the 2nd Defendant on 25th May 2010 and also filed an interlocutoryapplication to set aside and or review the Order made on26th April 2010allowing the Plaintiff’s application for temporary injunction. However the said application was dismissed on 25thOctober 2010.

However, on 6th May 2014, the 1st Defendant herein Teresia Wacuka Kimunya filed a Memorandum of Appearance for the 1st and 2nd Defendants herein. The said Teresiah Wacuka Kimunya further filed a statement of defence for herself and 2nd Defendant. The 2nd Defendant however did not file a Notice of change of Representation or his intention to act in person.

In the said statement of defence, the Defendants had averred that the suit is misplaced, misconceived, bad in law, frivolous, vexatious and disclose no reasonable cause of action as there was no sale, transfer or otherwise of the property LR.No.Ndumberi/Riabai/4089 & 4090. Further that there was no title registered as Ndumberi/Riabai/184, as it was long subdivided and closed and new titles issued being Ndumberi/Riabai/4089 and Ndumberi/Riabai/4090. The Defendant urged the Court to dismiss the Plaintiff’s suit with costs to them.

Further, on 12th May 2014, the Law Firm of Paul Ndungu & Co. Advocates filed a Notice of Change of Advocate and Notice of Appointment to act for both the Defendants herein. Therefore the advocate on record for both Defendants is Paul Ndungu & Co. Advocates.

From the court record, it is evident that on 16th July 2014, thePlaintiff filed aNotice of Motiondated16th July 2014and sought fororders that:-

i. The Memorandum of Appearance and the 1st and 2nd Defendants statement of defence dated and filed on 6th May 2014 be struck out.

ii. That the suit against the 1st Defendant do proceed undefended.

The said application was contested by the Defendants and vide a Ruling dated 9th February 2015, the Court held and found that there was no evidence of service of Summons to the Defendants and therefore the defences on the file were not properly on record. However, the Defendants were granted an opportunity after proper service of the Plaint and summons to enter appearance to file their defence. The Court had thus found in Clause 4 “The 2nd Defendant’s statement of defence dated 17th June 2010 and filed on the same date and the 1st and 2nd Defendants’ statement of defence, list and bundle of documents and witness statement dated 6th May 2014 and filed on the said date, be and are hereby expunged from the court record”.

Further, the Defendants had been given an opportunity to file their defences 15 days of service by the Plaintiff.

From the court records, the summons were extracted on 19th February 2015 and though there is no affidavit of service of the said summons and Plaint, it is evident that on 7th March 2015, the Defendantsdid file aNotice of Preliminary Objectionwherein they alleged that the suit herein has no probability of success as it isresjudicataand the issue herein had been determined by the court of competent jurisdiction inSuccession Cause No. 142 of 2006filed in Kiambu Senior Principal Magistrates Court. It was alleged that the suit ismisconceived, bad in law,an abuseof the court process,not of good faithand should be dismissed with costs. A Ruling was delivered by the court on5th February 2015wherein the saidNotice of Preliminary Objectionwas dismissed with costs.

After the said dismissal of Notice of Preliminary Objection, the Defendants did not file their respective defences and list of documents as directed by the Court. Therefore this suit is undefended and since the defences in the file were expunged from the court’s record, this Court will not consider them at all.

It is also evident that the Defendants’ advocates Paul Ndungu & Co. Advocates were invited severally to attend court for fixing of hearing dates for Pre-trial Conference and for hearing of the suit but they failed to turn up in court without any explanation. On 2nd November 2017 when the matter came up for hearing, the Court was satisfied that the Defendants’ advocate was properly served with the hearing Notice but he failed to turn up in court. The matter proceeded for hearing exparte.

Plaintiff’s Evidence

PW1 – James Gathu Njuguna gave evidence and adopted wholly his witness statement dated 5th February 2014. He testified that the suit herein was filed by his late father John Njuguna Kimunya who later diedon20th August 2012as per the Death Certificate produced in court asexhibit. After his death, PW1 filed aSuccession Cause No.142 of 2006and petitioned for Letters of Administration of the estate of his late fatherJohn Njuguna Kimunyaand for purposes of proceeding with this matter. He produced a copy of the Grant as exhibit in court.

Subsequent thereto, vide an application dated 7th March 2013, he sought to be substituted as the Plaintiff herein to represent the estate of his late father, John Njuguna Kimunya. The said application was allowed on 5th June 2013. Therefore the Plaintiff herein is James Gathu Njuguna suing as the legal representative of the estate of John Njuguna Kimunya.

He further testified that the 1st Defendant is his grandmother who was initially registered as the proprietor of Ndumberi/Riabai/184, after the death of his grandfather, who was also the husband to 1st Defendant. That the 1st Defendant was supposed to hold the said suit property on her behalf and on behalf of the other beneficiaries of the estate of the late Kimunya Mbugua Gichiru. However, after the 1st Defendant obtained confirmation of Grant, and the suit property was registered in her name, instead of distributing the estate to the beneficiaries of the estate of the late Kimunya Mbugua Gichiru, she subdivided the suit property Ndumberi/Riabai/184 into two portions without the consents of the other beneficiaries.

He also testified that the subsequent subdivisions were Ndumberi/Riabai/4089andNdumberi/Riabai/4090,wherein the 1stDefendant transferredNdumberi/Riabai/4089to the 2ndDefendant who is not a beneficiary of the estate of the lateKimunya Mbutu Gichiru,thus to the detriment of the said beneficiaries. That the said action amounted to an act of disinheriting the real beneficiaries of the said estate.

He also testified that the other portion Ndumberi/Riabai/4090, is registered in the name of the 1st Defendant but the beneficiaries are apprehensive that she might sell, alienate and transfer the same to other third parties and thus continue to disinherit the beneficiaries of the estate of Kimunya Mbutu Gichiru. It was his further testimony that his father had filed an application at the High Court being Succession Cause No.251 of 2010 wherein he had sought for revocation and/or annulment of the Certificate of Confirmation of Grant issued on 26th August 2008. Indeed from the further Plaintiff’s list of documents, a copy of Judgement of Succession Cause No.251 of 2010was attached. From the court’s findings, it is evident that the Letters of Administration issued to the 1st Defendant on 9th January 2008 and later confirmed on 26th August 2008 were revoked.

With revocation of the Certificate of Confirmation of Grant, then it meant that the suit property Ndumberi/Riabai/184, was to remain registered in the name of the late Kimunya Mbutu Gichiru. There is noevidence that this Judgement of the court has been set aside, vacated or stayed. No evidence that the Defendants herein have appealed the said Judgement.

The 1st Defendant herein got registered as the proprietor of the suitproperty by virtue of being the legal representative of the estate of the lateKimunya Mbutu Gichiru. The said Letters of Administration were revoked by the court. Having revoked the Letters of Administration issued on9th January 2008, then it means that the estate ofKimunya Mbutu Gichiruremains intact and not distributed. The subsequent transfer, registration and subdivision of the estate ofKimunya Mbutu Gichiruwas voided and nullified by the said revocation of theGrant and Certificate of Confirmationof Grant. Therefore the subsequent subdivision, transfer and registration of the new titlesNdumberi/Riabai/4089and4090is null and void.

Though the Defendants herein are the registered owners of Ndumberi/Riabai/4089 and 4090 respectively and as provided by Section 27 of the Registered Land Act Cap 3000 (now repealed) they held the land with all the rights and privileges appurtenant thereto, such right could be defeated by operation of the law. Section 27 of Cap 300 (now repealed) provides:-

(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;

Further Section 28 of the said Act provides:

“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 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”.

However, under Section 26(1)(a) and (b) of the Land Registration Act 2012, such proprietorship can be challenged if the same was acquired through fraud, misrepresentation, unprocedurally, irregularly or through corrupt scheme.

Section 26(1)(a)&(b) of the Land Registration Act, states as follows:-

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.

It is evident that the 1st Defendant had obtained registration of the suit property by virtue of her being the administrator of the estate of the late Kimunya Mbutu Gichiru. The Court by its Judgement dated 16th March 2017, found that the 1st Defendant failed to ensure distribution of the said estate was done to the respective beneficiaries after the Confirmation of Grant. Further the Court held that failure to proceed diligently in the said administration of the deceased was a ground for revocation of the said Grant. Therefore with the said revocation and with the said failure to distribute the estate to the beneficiaries but sold to the 2nd Defendants, it means the said title held by 2nd Defendant was obtained unprocedurally and irregularly. The 2nd Defendant needed not to be part of the wrong doing or to have knowledge of the said irregularity. But the fact that the said registration was done irregular means that the 2nd Defendant did not obtain a good title. See the case of Funzi Island Development Limited & Others…Vs…County Council of Kwale, Civil Appeal No.252 of 2005 (Mombasa), the Court held that:-

“In the case of allocated land, even if the Section is applicable, a registered proprietor acquires absolute and indefeasible title if and only if the allocation was legal, proper and regular. A Court of law cannot on the basis of indefeasibility of title sanction an illegality or give seal of approval to an illegally or irregularly obtained title”.

Therefore the Court finds that the resultant subdivision of the LR.No.Ndumberi/Riabai/184 was voided by revocation of Letters of Administration issued to 1st Defendant and later confirmed on 28th August 2008. With the said revocation, the subsequent dealings on the suit property by 1st Defendant was null and void and her subdivision of the said Ndumberi/Riabai/184, was unprocedural and irregular. Therefore Ndumberi/Riabai/4089 and 4090 were irregularly registered and this Court will not hesitate to cancel them. See the case of Macfy…Vs…United Africa Co. Ltd 1961 3All ER 1169, where it was held that:-

“If an act is void, then it is in law a nullity. It is not only badbut incurably bad. There is no need for an order of Court to set it aside. It is automatically null and void without more ado; though it is sometimes convenient to have the Court declare it to be so”.

The registration of these two parcels of land was done under Cap 300 (now repealed) and Section 143 provided for such cancellation. The said Section is now replicated in Section 80(1) of the Land Registration Act which provides:-

80(1) Subject to subsection (2), the court may order therectification of the register by directing that anyregistration be cancelled or amended if it is satisfied thatany registration was obtained, made or omitted by fraud ormistake.”

Consequently, the Court finds that this is a proper case for rectification of the register by directing that the registration of Ndumberi/Riabai/4089 and 4090 be cancelled and the register should thereafter be amended to revert to the initial registration of Ndumberi/Riabai/184in the name of the deceasedKimunya Mbutu Gichiruto be in line with the Judgement of the court issued inSuccession Cause No.251 of 2010. The beneficiaries of the estate of the saidKimunya Mbutu Gichiru(deceased) can now file a fresh Succession Cause in the Family Division for proper distribution ofLR.No.Ndumberi/Riabai/184.

Having now carefully considered the available evidence, the Court finds that the Plaintiff herein James Gathu Njuguna (suing as the legal representative of the estate of John Njuguna Kimunya) has proved his case on the required standard of balance of probabilities. Consequently, the Court enters Judgement for the Plaintiff against the Defendants jointly and severally in terms of prayers No.(a) & (b) of the Plaint dated 2nd March 2010.

Further, the Land Registrar, Kiambu is directed to rectify the Register by canceling LR.No.Ndumberi/Riabai/4089and Ndumberi/Riabai/4090 and reverting to LR.No. Ndumberi/Riabai/184 in the name of Kimunya Mbutu Gichiru (deceased). The beneficiaries of the said estate can file a Succession Cause for distribution of the deceased’s assets, including the suit property herein.

The Plaintiff is also entitled to costs of this suit.

It is so ordered.

Dated, Signed and Delivered at Thika this 19thday ofJune 2018.

L. GACHERU

JUDGE

In the presence of

James Gathu Njuguna the Plaintiff in person

No appearance for 1st Defendant

No appearance for 2nd Defendant

Lucy - Court clerk.

Court – Judgement read in open court in the presence of James Gathu Njuguna the Plaintiff herein.

L. GACHERU

JUDGE

19/6/2018