[2017] KEHC 2908 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ENVIRONMENT AND LAND CASE NO. 51 OF 2015.

JONATHAN NAMULALA NYONGESA……………………..PLAINTIFF

VERSUS.

MULTI BUSINESS SHOOTERS INVESTORS LTD…….......1ST DEFENDANT

FAMILY BANK LIMITED…………………………….....…….2ND DEFENDANT

HON. ATTORNEY GENERAL

OF THE REPUBLIC OF KENYA………………………….....3RD DEFENDANT

ALEX JUMA WAKITE alias

ALI JUMA WAKITE…………………………………….……4TH DEFENDANT

JUDGEMENT.

The pleadings:

[1]. The plaintiff Jonathan Namulala Nyongesa filed this suit against the four defendants. He stated in his plaint that at all material times prior to the filing of this suit that he was the registered proprietor of E. Bukusu/S. Kanduyi/485 measuring 0. 1Ha. Which is a semi developed parcel of land housing a garage and situated within Bungoma Township.

[2]. That on 27/3/2015 he received a notice of eviction from the said parcel of land from the firm of Wetangula Adan & Makokha Advocates. The notice attached a copy of title in respect of the said plot in the names of the 1st defendants herein. The plaintiff avers that he had not sold his plot to anyone. That after doing a thorough enquiry and a search in the land office Bungoma, he found out that his said parcel of land had fraudulently been transferred to the 1st defendant and the same had been charged by the first defendant to the 2nd defendant to secure a loan of Kshs 9,000,000/= on 18th March 2015. The plaintiff states that the fraud was executed by the 1st defendant in concert and cahoots with Family Bank, The District Land Registrar Bungoma and the 4th defendant herein Alex Juma Wakite alias Ali Juma Wakite. The plaintiff set out the particulars of fraud in his Plaint as follows;

a) Transferring the suit land into the names of the 1st defendant using forged, fake, counterfeit and phony documents.

b) Making documents without authority and validity.

c) Conspiring with third parties to re-register, transfer and charge the property i.e. suit land.

d) Presenting and or uttering false and or forged documents to third parties to procure credit.

e) Failing to observe, obey, adhere to and abide by the law and in particular our constitution.

f) Acting with impunity and in total disregard of validity and sanctity of title.

g) Abusing their office to the detriment and prejudice of the plaintiff.

j) Disregarding and abusing the plaintiffs constitutionally protected rights to own property.

The particulars of collusion Deceit and misrepresentation by 1st 2nd and 4th defendants as follows;

a). Colluding deceitfully to obtain Kshs 9,000,000/= as part of the purchase price for a fraudulent sale agreement they knew was an orchestrated ploy to illegally obtain credit.

b). Deceitfully blatantly and flagrantly obtaining credit and or purported loan and sharing or allocating the same among the fraudsters being the agents and or conduits in the purported fraudulent sale agreement using an account opened in the coded names of the 4th Defendants at the 2nd Defendants Bungoma Branch to wit Account No.077000029483 as an escrow account.

c). Deliberately opened and disgracefully obtaining Kshs 9,000,000 by using fake, dubious, forged and or phony documents with full knowledge of the same.

d). Intentionally and defiantly presenting a designed, tailored and schemed sale agreement of non-existent parcel of land to obtain credit facilities for a fraudulent illegal and unlawful bet.

e). Misrepresenting themselves as genuine, bonafide and lawful registered owners of the suit parcel of land.

f). Opening and operating fictitious accounts meant to perpetuate and facilitate fraudulent transactions.

g). Conspiring, engaging, committing and uttering forged documents to obtain credit without or with intent to defeat justice or unfairly reap from impunity and illegality.

The plaintiff avers that the 4th defendant has been charged before the Chief Magistrate’s Court in Bungoma vide Criminal Case No. 2662 of 2015 with several Counts of forgery and defraud of title to land of Parcel E. Bukusu/South Kanduyi/485 and impersonation as Jothan Nyongesa Namulala the Plaintiff herein.

[3]. The plaintiff prays for declaration that he is and has always been the owner and proprietor of E. Bukusu/S. Kanduyi/485 comprising of approximately 0. 1Ha. He also prays for an order directed to the Permanent Secretary, Ministry of Lands, Chief Land Registrar and District Land Registrar Bungoma District land Registry that the said registration of the suit land to the first defendant, the subsequent charge to the 2nd defendant and subsequent transfers to the 1st defendant and titles issued therein in the 1st plaintiff’s name be cancelled, annulled and be revoked and finally that a permanent injunction do issue against all the defendants, their agents and servants from intermeddling, generating or re-registering, transferring, offering and/or entering and remaining or interfering with the plaintiff’s quiet and peaceful ownership and occupation of the suit Land herein.

[4]. The first defendant filed his defence on 4th June 2015. He averred in his defence that the plaintiff was duly registered proprietor of land Parcel No. E. Bukusu/S. Kanduyi/485 till 25/2/2015 when he disposed of the same by way of sale to the 1st defendant herein. He denies that he served any eviction notice and avers that he served the previous Caretaker one by the name of Noah Wafula to vacate the premises so that the 1st defendant can develop the same. The 1st defendant denies that the suit land was fraudulently transferred to his company and avers that all necessary consents to the controlled transactions were lawfully obtained before transferring to the 1st defendant and charging to the 2nd defendant on 18th March 2015. The first defendant avers that the plaintiff sold and parted with possession and or ownership of the said land upon receiving the full consideration of Kshs 14 million and that the plaintiff signed, executed, endorsed and authorized the signing or execution of the instrument and documents vesting ownership of the suit property to the defendant. The 1st defendant deny acting illegally unlawfully with the other parties, re-registering, re-issuing, creating and generating new documents to procure transfer of the suit land into the names of the 1st defendant. He states that the purchase of the suit land was open and voluntary at a cost of Kshs 14 million shillings and that the plaintiff executed all documents. He finally said that he is a bona fide purchaser for value and without notice of the alleged fraud.

[5]. The 2nd defendant filed his defence on 22/6/2015 and stated that it is a financier and in ordinary cause of business lent Kshs 9,000,000/= to the 1st defendant to purchase a plot and took a charge over LR No. E. Bukusu/S. Kanduyi/485 to secure the said loan. It denied it acted fraudulently as alleged. That it acted innocently on the advice of its Legal advisors M/s. A. W. Kituyi & Co. Advocates and that it is a stranger to the alleged fraud. It stated that in a letter of offer and Acceptance dated 16/2/2015 it advanced Kshs 9,000,000/= to the 1st defendant with guarantees from the company directors (Wanyonyi Johnex Waswa & Beatrice Khalayi Waswa). The charge therein on the 2nd defendant instructions, was drawn and registered by A.W. Kituyi & Co. Advocates who registered the charge on 20/3/2015.

[6]. The third defendant filed his defence on 26/10/2015. He admits that the plaintiff was the owner of the suit land of parcel E. Bukusu/S. Kanduyi/485 measuring 0. 1Ha. He states that the Bungoma County land Registrar while in the cause of his duty as a Land Registration officer received a duly executed transfer Instrument for registration in favour of the 1st defendant accompanied by;

i) Transfer Instrument duly executed allegedly by the plaintiff and 1st defendant;

ii) Copy of the alleged Identity Cards;

iii) Copy of the alleged PIN Cards;

iv) Copy of the alleged passport size photographs;

v) An alleged Original Title Deed;

vi) A sale Agreement dated 26-1-2015;

vii) An Application for Consent to Transfer;

viii) A letter of Consent to Transfer;

ix) Receipt showing payment of stamp duty;

x) Receipt showing payment of registration fees

and the land Registrar being satisfied as to the genuiness of the documents presented for registration, and the fact that the land was unencumbered, registered Transfer Instrument conferring title to the 1st defendant.

The 3rd defendant argues that the County Land Registrar was bonafide and acted within his statutory and Constitutional Powers and was not party to the alleged fraud. That the Land Registrar became aware of the fraud when he was interrogated by the D.C.I.O. Bungoma Police Station. The third defendant finally says that the Land Registrar aforesaid had no reason to doubt the authenticity of the transaction noting that A.W. Kituyi & Company Advocates acted for both parties and hence the belief that due diligence was conducted and that the right proprietor was the one dealing. He argues that either the 1st defendant or advocate then acting for the parties took advantage of the fact that the County Land Registrar had just been posted to Bungoma County thereby interfering with the plaintiff’s proprietory interest in the suit land.

[7]. The fourth defendant swore an affidavit on what he called Defendants Affidavit Evidence sworn before D.L. Were Commissioner of Oaths filed in Court on 10/2/2015. He swore how he was called by a person not known to him called Noah Wafula who asked him whether he was in a position to carry out Land Sale transaction on behalf of Jonathan Namulala Nyongesa. How he learnt that his telephone contacts was given out by one Elizabeth Nyongesa wife to Jonathan Namulala Nyongesa his neighbour in Mayanja town. He explained how they arranged to meet in Bungoma Town the following day at Hilton Bar & Hotel. How he met Elizabeth Nyongesa. He alleged that he talked to Jonathan Namulala through a phone of Noah Wafula and that Jonathan Namulala told him on the phone that he wanted him to Act for him on the sale of the suit land and promised to send all the relevant documents of title and promised to pay the 4th defendant Kshs 200,000. 00 if the plot was successfully sold.

He explained how he took passport photos in a photo studio near Maurisa Hotel, how the photos were paid for by Elizabeth Nyongesa. After the photos sessions he was given Kshs 500 by Noah Wafula his bus fare to Webuye. On January 2015 he was called by the said Noah Wafula to Cool Base Hotel Bungoma were he met Mchacha Kasimwaka alleged agent for Jonathan Namulala Nyongesa and Jones Wanyonyi Waswa (the Director of the first defendant). He explained how Noah Wafula called a lady namely Priscilla Odhiambo Wanzalla on the phone. The lady and the 4th defendant were called aside by Noah Wafula and asked to Act as Mr. and Mrs. Jonathan Namulala Nyongesa. They then went to the table and started to negotiate the price of the plot with Jones Wanyonyi Waswa and the price was agreed at Kshs 14 million. They then headed to Ushirika House to the firm of A.W. Kituyi & Company Advocates to draw a Land Sale Agreement. The 4th defendant signed the agreement as Jonathan Namulala Nyongesa. He was given Kshs 5000/= by Jones Wanyonyi Waswa as appreciation for reaching an agreement amicably.

That on 28/1/2015 he was called by Noah Wafula and was told that Jones Wanyonyi Waswa was delaying payment and that another buyer was found, a Co-operative Bank Manager. The 4th defendant refused to go to Bungoma and told Jones (Director of 4th defendant) about it. That on 4th February 2015 the 4th defendant came at Cool Base Hotel where he met Jacob Machacha Kasimwaka, Jones Wanyonyi Waswa (1st defendant director) and Noah Wafula. Jones gave him Kshs 2 million in two envelopes and the 4th defendant handed the money to Noah to pass it on to Jonathan Namulala Nyongesa. The 4th defendant gave the money to Noah Wafula and he was given Kshs 50,000/= as part payment on behalf of Jonathan Namulala Nyongesa.

He avers that on 23/2/2015 he was called by Jones Wanyonyi Waswa and he travelled to Bungoma and he met Jones Wanyonyi and Jacob Machacha Kasimwaka outside Family Bank Branch. He noticed Noah Wafula on the opposite side of the road and he beckoned him to him to join them which Noah Wafula did. They entered the Bank where they met Advocate Kituyi who had earlier on drafted the agreement. The transfer of Kshs 8 million was done. The 4th defendant says he was given documents to sign on behalf of Jonathan Namulala Nyongesa to acknowledge receipt of the money. Advocate Kituyi was given Kshs 500,000/=, Jones (Director of the 1st Defendant) was refunded Kshs 2. 6 million, Jacob was given a Cheque of 1. 6 million and cash 200,000/= and the 4th defendant was given Kshs 800,000/= which he says he gave to Noah Wafula immediately and Noah Wafula then left the premises as he was standing outside the bank. The witness was given 20,000/= as appreciation and was told that the balance of 150,000/= would be given by Jonathan Namulala Nyongesa himself. He swore that in April 2015 he received a call from Jones Waswa that he had deposited the remaining 4 million and that he (4th defendant) would be travelling to Nairobi to withdraw it and hand it over to Jonathan Namulala Nyongesa. The 4th defendant then in his affidavit explains how he went to Nairobi stayed at Yasin Hotel and withdrew the amount in a Family Bank Branch whose location he does not know. He withdrew the 4 million met Jonathan Namulala Nyongesa for the first time and gave him the 4 million. He was given Kshs 50,000/=, was thanked for the job and he got a shuttle at River Road and went back to Webuye at 4 p.m. He then explained how he was arrested.

The evidence:

[8]. The plaintiff gave evidence and said that he comes from Kanduyi that he works in Mombasa as a Finance Officer. That he owns East Bukusu/South Kanduyi/485 measuring 0. 1Ha in Bungoma Town and that he is the registered owner. He said that he has a title deed issued in 1999. It was produced as PExh. I and that he had temporary structures therein. The plaintiff explained how he got his report from his tenant Noah Wafula who had received a Notice to vacate the plot from Wetangula Adan & Makokha Advocates dated 27/3/2015 produced as PExh. 2. He said he was shocked since he had the original title and had not engaged anyone to sell the plot for him. He obtained a search from the Bungoma land office and noticed that his plot had changed names from his name to that of the 1st defendant and was charged to the 2nd defendant. He then went to Bungoma and instructed an advocate. The plaintiff’s lawyer found out that there was a sale agreement indicating the seller as the plaintiff. The agreement was drawn by A.W. Kituyi & Co. Advocates. He denied ever appearing before the said advocates on the alleged date. He averred that the signature therein was not his own. The witness said that the identity card on the documents for sale was not his own and that his identity card serial number is [particulars withheldt] while the one used was 124334021. Further the photograph on the ID was not his own. He said that the place of issue of his ID card is Central Bungoma while the place of issue of the ID card used for the transaction is Sirisia Bungoma. He averred that the date for issue for his card was 17/3/2008 while the ID card used in the sale was issued 19/7/2013. The signature on the two cards differed, the date of birth of the sellers Card was 1952 while the plaintiff’s Card was 1956.

The witness said that the title document used for the sale of this land was issued under the Land Registration Act No. 3 of 2012 and it showed that it was issued on 25th October 1999 before the enactment of the Registration of land Act 2012. The witness stated that his title was issued under the RLA Cap 300 on 25/10/1999. The Plaintiff said that the PIN used in the transfer is A003522031N while his PIN is A[particulars withheld]N.

The witness said that there was a charge of Kshs 9 million over his property to Family Bank which was registered on 13/3/2015 and he stated that when all that happened he was not aware. He said that he reported to the police the forgery and the 4th defendant herein was charged with others for many offences among them forgery contrary to Section 359 of the Penal Code. The Distract Land Registrar Bungoma was charged with forgery as well. The Criminal case is ongoing. The plaintiff stated that an account was opened in the Family Bank and his name was used, Account number 077000029483. The plaintiff said that he has no account in Family Bank and that he has never opened any and that those bank statements do not belong to him. He continued to say that the address for opening the account is a Kitale address and not his while the telephone number used to open the account is not his. He prayed that the title issued through that fraudulent transfer be cancelled and the title do revert to his name. The witness said that the sale was a fraud because the 1st defendant benefited from the same; that the account opened by the bank in the name of Jonathan Namulala Nyongesa was used to disburse the alleged purchase price. He also said that he blames the Land Registrar because had the Land Registrar been diligent, he would have seen that the documents presented to him were not genuine.

[9]. Celestine Wanjala relied on his statement dated at 10th July 2015. He adopted it as his statement. He said that he worked with Kituyi advocate in the year 2014 about the month of June. He said that while there, he did a transaction of E. Bukusu/S. Kanduyi/485. He said that Jonathan Namulala was transferring the land to the first defendant Multi Investment Shooters Ltd the transferee. That, he was given the Sale Agreement, Passport Photographs, official Search and KRA PIN Certificate. He said that the directors of Multi Business Shooters Investors Ltd had signed the transfer. He said that he carried the physical documents to the land office, he obtained consent for transfer and for charging. He said he was not with the Directors of Multi Business Shooters Investors Ltd.

He testified that he noticed that transfer was not stamped by the advocate, that he paid the registration charges and caused the registration in favour of the second defendant Family Bank. He said that the title he obtained from the land office was genuine. He said that he did not inform the bank that the documents had a problem.

[10]. Wanyonyi Johnnex Waswa said that he is a businessman and the Principal director of Multi Business Shooters Investment Limited (the 1st defendant) registered in 2016 March. He said that he was relying on his statement dated 23/7/2015 filed in court on 2/10/2015. He adopted it as evidence in this case.

In his statement he stated that he was the Managing Director of the 1st defendant. That in early January 2015 he was approached by Jacob Kasimwaka Machacha who informed him that Land parcel No. E. Bukusu/S. Kanduyi/485 was advertised for sale. That he went and inspected the land in the presence of one Noah Wafula Wanjala who introduced himself as the caretaker of the Plaintiff, that he carried out the search at the lands office and ascertained that the seller was the registered owner. He said that since the company did not have the full purchase price he approached his financiers Family Bank Ltd. Bungoma Branch to Finance the transaction who duly contacted their Legal Advisor by the name A.W. Kituyi & Co. Advocates. That an agreement was duly executed on 26th January 2015 for the sale of the suit land for a consideration of Kshs 14 million. That on 30th January 2015 he duly paid the sum of Kshs 5 million as part of the purchase price. That all documents and due diligence were carried out by Family Bank Ltd lawyers who did the transaction. He went on to say that the lawyers duly informed his company that the registration was complete and the Bank proceeded to release the funds directly to their lawyer who paid the vendor. He said that the agreement stated that they were to take possession of the land upon execution of the sale agreement. That they therefore wrote to the caretaker of the land to vacate so that they can commence developments. He stated that the transaction was above board and that all relevant procedures were followed.

On cross examination he said that he believed it is Jonathan Namulala Nyongesa who disposed of his property by using his agent. He said that the fourth defendant is the one he met. He said that he paid a down payment of Kshs 5 million but he did not have evidence for such payment. Further cross examination he said Kshs 9 million was deposited on his Company account. He said that he was aware the plaintiff (Jonathan Namulala Nyongesa) had an account with Family Bank. He, on further cross examination stated that on 25/3/2015 his company transferred Kshs 9 million to the plaintiff’s account. The witness on being asked why there was a withdrawal of Kshs 2,600,000/= from the account of the said Jonathan Namulala Nyongesa which his Company deposited on 25/3/2015 he told the Court that there was an overpayment of purchase price. He said his company paid Kshs 16. 6 million. That therefore, the refund was for the excess. He said he knew the 4th defendant Jonathan Namulala Nyongesa, Priscilla Wanzalla and the Bungoma Land Registrar were charged with forgery Contrary to Section 349 of the Penal Code.

On cross examination by Mr. Sichangi Counsel for the plaintiff he admitted that his company was not repaying the loan with the 2nd defendant. He also admitted that his company never attended the Land Control Board. On cross examination by Mr. Kairaria Counsel for the 2nd defendant, he said that he on behalf of his company approached the 2nd defendant for a facility of Kshs 9 million. That the security was a charge over the land his company was purchasing. Further that the directors of his company were the guarantors. That he signed the Charge document. He said he did not attend the Land Control Board and could not confirm whether the Land Control Consent was genuine.

On re-examination by Mr. Makokha his Counsel he said that the Kshs 5 million paid by his company was paid to Andrew Kituyi & Company who paid it to the vendor. He further said that he did not participate in the opening of the account of Jonathan Namulala Nyongesa in Family Bank. That Kshs 9,000,000/= was transferred into that account. He said that he was not a signatory to that account and on Re-examination by Mr. Kitiwa he said that he had no evidence for the over payment of Kshs 2. 6 million.

[11]. Mr. John Masinde Wanjala said that he was the Branch Manager of Family Bank since November 2014. He relied on his statement filed herein. He said that the banks role was to finance. That they received an application and they recommended and approved. They then appointed a lawyer in their panel to do the work. He produced, a letter of offer, a title, a charge, a letter of official search and a certificate of good conduct, He said that the advocates of the bank were A.W. Kituyi & Co. Advocates. He said that the loan was granted on 29/1/2015. That the property being purchased was the security and that the purchase price was Kshs.9 million in favour of the Directors of Family Bank. That there were also guarantees by the directors of the 1st defendant. The manager told the court that the money Kshs 9 million was disbursed on 25/3/2015 to the seller. He said that they disbursed Kshs 8,884,900/= and a Credit of Kshs 115,000/= was made on the same day to make Kshs 9 million. He said that the bank had no further role to play.

On cross examination, the Bank Manager said that the loan approval was done on 16/2/2015. He stated that all the fees (for the charge) were to be born by the customer (1st defendant). He said that Andrew Kituyi and Co. Advocates also prepared the sale agreement and the charge and that the bank did not see any conflict of interest. He however agreed that nearly all the amount was shared out on the same day, that is, Kshs 2. 6 million the first defendant and Kshs 1. 8 million to a broker one Kismwaka, and Kshs 500,000/= to the Lawyer. He said he did not know that the parties were sharing the loot. On cross examination by Mr. Makokha, the witness said that he did not influence the opening of the account. That the 1st defendant had other accounts in the bank. That the lawyer who works for the bank is instructed by the bank. That such a lawyer does the due diligence.

[12]. Phillip Kisaka Kibuchi said that he is a Land Registrar Bungoma Land office. That he had been a Land Registrar for 20 years. That on 23/2/2015 he received documents from Andrew Kituyi & Company through the advocates clerk. That the clerk was known to him. That he received a transfer dated 26/2/2015 with photographs and ID number 1001286073 and PIN A003522031N and on the second page the owners, Directors of Multi Business Shooters Investment Ltd with their IDs PIN and Signatures. He said that he also received the application for Land Control Consent dated 9/2/2015 by Jonathan Namulala Nyongesa for sale of LR. No. East Bukusu/South Kanduyi/485 to Multi Business Shooters Investment Co. Ltd. He stated that he received a Consent dated 10/2/2016 for the same signed by the Chairman Kanduyi Land Control Board. That he received KRA Form for payment of stamp duty from the plaintiff to 1st defendant. He produced all the documents Exh. 1-14. He admitted that he did not have the original title of the suit property. He however, said that he believed that the same was there and was destroyed at some stage.

On being Cross examined on stamp duty by Mr. Sichangi. He said that he did not know whether the consent was for Special Board or for Ordinary Land Control Board. On Stamp duty of Kshs 4,000/= he said that he did not know where the Land was situated and that the consideration was not quoted and he called Mr. Kituyi who said it was Kshs 200,000/= and that he based his stamp duty on that amount. He admitted that he is charged with forgery in Bungoma Principal Magistrates Court Criminal Case No. 2868/2015. He said that he used the certificate on page 26 of the Plaintiff’s list of documents and agreed that he was duped.

[13]. Alex Juma Wakite, told the court that he comes from Webuye. He said that he knew Jonathan Namulala Nyongesa. He said that he is a Mason by profession. That on 28/12/2014 he was called by a person he did not know, called Noah Wafula who wanted him to come to Bungoma and sell a plot of his Landlord. He told him he was a caretaker. That the landlord wanted to be an MP in 2007 and so he wanted the cash. He explained how they arranged to meet in various places in Bungoma and how he met Elizabeth Nyongesa Wasike who was alleged to be wife No. 2 to Jonathan Namulala Nyongesa and how he later knew that she came from Mayanja his home area. He told the court how Elizabeth called Nyongesa who talked to him and asked him to work with Elizabeth, Nyongesa and Wasike and how they agreed on a fee of Kshs 200,000/=. He explained how he went to the studio and took photos to impersonate Jonathan Namulala Nyongesa. He explained how he got a call on 26/1/2006, how he met Jacob Machacha Kasimwaka, the 1st defendant herein Elizabeth Manoah and Priscilla Auma allegedly the first wife of Jonathan Namulala Nyongesa. He explained how they planned to negotiate with the 1st defendant herein from Kshs.18 million and finally how they agreed at Kshs 14 million.

He explained how they went to A.W. Kituyi & Co. Advocates. How Pricilla Auma acted as his wife and he acted as Jonathan Namulala Nyongesa and they wrote an agreement for sale. He said that he was given Kshs 5,000/= by the 1st defendant. He said that on 30th January 2015 he went to the office of the 1st defendant and was given Kshs 4 million in two envelopes. He gave the money to Noah who took it and gave him Kshs 50,000/= and said that the balance Kshs 150,000/= would be given to him by Namulala Himself. He went on to explain how other monies were paid to him by the 1st defendant. He also explained how he had opened an account in Family bank where money would be deposited. He said that Kshs 9 million was deposited by the bank. He gave an account on how the balances of 4 million money was withdrawn in Kitale and Nairobi and how he was later arrested and charged with forgery.

Analysis:

[14]. Land Parcel East Bukusu/South Kanduyi/485 is a registered land. Registered under the now repealed Cap 300 on 25th October 1999. It comprises of 0. 1Ha and registered in Registry Map Sheet No. 11. The registered owner is registered as Jonathan Namulala Nyongesa. This land is situated in an agricultural area and it is subject to Land Control Consent.

This land is the subject of this suit. The suit plot was sold by a person claiming to be doing so with the consent and full permission of the owner Jonathan Namulala Nyongesa then living in Mombasa. However, during the hearing the seller had been arrested by the police, unmasked as Alex Juma Wakite AliasAli Juma Wakite and charged in Bungoma RM Criminal Case No. 2662 of 2015 with forgery contrary to Section 499 of the Penal Code in that, on 26th day of January 2015 at Bungoma Township jointly with others not before the Court, forged land title deed Number E. Bukusu/S. Kanduyi/485 purporting it to be genuine. He was also charged with forgery Contrary to Sec. 349 of the Penal Code of KRA PIN No. A003522031 purporting it to be the PIN of KRA of Jonathan Namulala Nyongesa. He was equally charged with forgery of a National ID. Card No.128607 purporting it to be the ID of Jonathan Namulala Nyongesa. He was equally charged with personation Contrary to Section 382 of the Penal Code, that on 25th day of February at Andrew Kituyi Advocates office in Bungoma Town with intent to defraud falsely represented to be Jonathan Namulala Nyongesa. He was equally charged with two counts of uttering a false document Contrary to Section 353 of the Penal Code of the PIN code and ID Card. Finally he was charged with obtaining by false pretences Kshs 8,884,900 from Jonnex Wanyonyi Waswa by falsely pretending that land parcel Number East Bukusu/South Kanduyi/485 he produced and delivered to Jonnex Wanyonyi Waswa was a genuine and a valid title deed. This case is still pending in the Magistrates Court at Bungoma and the 4th defendant is in custody in Bungoma Prison awaiting his trial. Jonathan Namulala Nyongesa who lives in Mombasa was informed of a letter to vacate the suit land written by Makokha Wetangula Adan Advocates, and which letter was addressed to Noah Wafula Simiyu who was the tenant of the Nyongesa living in Mombasa. He came to Bungoma asked a lawyer to do a search of his plot and that is when he found out that his plot had been sold to the 1st defendant and investigations started and the 4th defendant and the Land Registrar Bungoma and others were arrested and charged with forgery and other counts.

[15]. The advocate of the plaintiff found out that the plaintiff’s identity Card Serial Number was [particulars withheld] while the one used to transfer was 124334021. That the photograph on the transfer was different. The place of issue of the plaintiff’s Card was Central Bungoma while the one used in the transfer showed the place of issue was Sirisia Bungoma. The plaintiff’s Card was issued on 17th March 2008 while the one used in the transaction was issued on 19th July 2013. The plaintiff’s date of birth on the card was 1956 while the one used in the transaction showed that the holder was born in 1952.

The plaintiff still had his original title issued on 25th October 1999 under the Registered Land Act Cap 300. The title used in the Registration was dated 25th October 1999 but the title document itself was under the land Registration Act No. 3 of 2012 meaning that it was issued after the Land Registration Act came into existence and could not have been issued on 25th October 1999.

The plaintiff’s PIN is A[particulars withheld]N. The PIN used in the transaction was A003522031N. The fourth defendant has sworn an affidavit filed in court to show how the plan was hatched for him to impersonate the plaintiff who was in Mombasa and how one Priscilla Auma Nanjala impersonated Jonathan Namulala Nyongesa’s 1st wife.

[16]. There cannot be any doubt pursuant to that admission by affidavit and under oath in court that the person imposing as Jonathan Namulala Nyongesa was the fourth defendant Alex Juma Wakite. Further that the real Jonathan Namulala Nyongesa is the Plaintiff.

The 1st Defendant:

[17]. The first defendant gave evidence through its majority shareholder Director Wanyonyi Joannex Waswa who said that when he was approached by Jacob Kasimwaka Machacha and Noah Wafula Wanjala to purchase E. Bukusu/S. Kanduyi/485 he carried a search in the Land office to ascertain the registered owner. They went to the 2nd defendant to Finance the transaction. They agreed. The 2nd defendant directed their Legal Advisor A.W. Kituyi & Co. Advocates to act for it. The 1st defendant drew an agreement with the owner on 26th January 2015 for a consideration of fourteen (14) million. So far, all due diligence had been done.

[18]. There is however, an intriguing payment of Kshs 5 million that was supposed to be paid on 30/1/2015. The 1st defendant, 2nd defendant, third and fourth defendants have different accounts how it was paid. How come then, that there was no trace of the payment of 5 million by the 1st defendant to the seller? The evidence as to how it was paid varies from person to person. No payment or voucher acknowledgement, and/or agreement and/or any receipt and/or withdrawal from any bank or financial institution was produced to the court to prove the existence of the said Money and payment thereof. A.W. Kituyi & Co. Acted for both parties on the agreement for sale and the charge to the 2nd defendant, why was Kshs 5 million not paid to the bank as the agreement for sale of 26/1/2015 stated or to the Advocates acting for both parties? In court, Wanyonyi, Joannex Waswa said he paid the money to A.W. Kituyi & Company Advocates, his filed statement does not bear him out on that one. Money paid to a firm of advocates would be quite easy to account. The 4th defendant who was supposed to have been paid the Kshs 5 million said he was paid an amount of Kshs 4 million in his evidence in chief. How would a purchaser pay Kshs 5 million to a vendor and have nothing to show for it when initially it was supposed to be paid to Equity Bank? Further, the advocates for the 2nd defendant bank (on the charge) A.W. Kituyi & Company made the Sale agreement on 26/1/2015. The property was to be sold for Kshs 14 million. The 1st defendant was to pay Kshs 5 million to Equity Bank by 30/1/2015 pursuant to that agreement. There was a shortfall of Kshs 9 million. The 2nd defendant was approached to finance that shortfall. There was therefore, a legitimate interest on the part of the bank to want to know if the five million aforesaid was paid because the bank was charging the whole of the suit property. The questions that beg answers are therefore as follows; Why did the 2nd defendant bank not insist on the proof of the payment of the Kshs 5 million to the vendor before disbursing the charged amount of Kshs 9 million? Why was the Kshs 9 million paid on 25/3/2015 by the 2nd defendant bank, paid direct to the account of the vendor instead of the account of the 1st defendant charger? Why was there no instruction by the 1st defendant to the 2nd defendant to deposit the Kshs 9 million to the account of the 4th defendant? Was the 2nd defendant inside trading or was it part of the whole scheme involving the 1st and 4th defendants?

The documents of the second defendant:

[19]. The second defendant annexed various documents. Among them was a charge between the 1st defendant and its directors Wanyonyi Johnex Waswa and Beatrice Khalayi Waswa whereby the 1st defendant and its directors were borrowing Kshs 9,000,000/= from the 2nd defendant.

The charge was made on 9th March and was registered on 18th March 2015. The certificate of official search dated 18th March 2015 shows land parcel E. Bukusu/S. Kanduyi/485 was registered in the name of the 1st defendant on 25/2/2015. How come then, that the Letter of consent to charge the suit land issued on 10th February 2015 pursuant to an application dated 9th February (by the 1st defendant) was granted to the 1st defendant when the suit land did not belong to the 1st defendant? Is this consent then valid? Why was the Counsel for the 2nd defendant not able to spot this? If the said advocates missed it how come the Land Registrar did not spot it? Why was the 1st respondent applying for the Land Control Boards Consent on a Land that did not belong to it? Was the Consent a forgery?

This consent granted on 10/2/2015 to Multi Business Shooters Investors Limited of P. O. Box 1060 – 50200 Bungoma Pursuant to their application dated 9/2/2015 to charge land parcel East Bukusu/S. Kanduyi/485 for Kshs 9,000,000/= is invalid. The only person who could legally apply for the consent to be granted was the then, registered owner Jonathan Namulala Nyongesa. The registration of the Charge was irregular in that there was no valid Land Control Consent as by Law required.

The third defendant:

[20]. The third defendant issued a title deed for E. Bukusu/South Kanduyi/485 in the name of Jonathan Namulala Nyongesa dated 25th October 1999. The original Title was produced in the Land office for the Transfer. However, that title deed was under the land Registration Act No. 3 of 2012. How could a title dated 25th October 1999 be issued under an Act of Parliament of 2012. How would a Land Registrar allow such a mistake? The title deed is clearly a fake and a forgery. Another thing is that the purchase price was 14 million. Stamp duty is always 4% of the purchase price on properties in Town and 2% for those others outside urban areas as per the stamp duty Act. The duty on 14 million at 4% was Kshs 560,000/=. How come then that only Kshs 4,000/= was paid as stamp duty? Among the documents the Land Registrar said in his written evidence, he received, was, the agreement of 26/1/2015. In that agreement the consideration was Kshs 14 million. Why could the land registrar not calculate the stamp duty on that amount? Did the transfer not have consideration, and if so why did the land Registrar not reject the transaction? He had 27 years of experience in the land office. In his evidence, he said that when he realized this anomaly he called advocate Kituyi who said that the transaction was for a consideration of Kshs 200,000/=. Is he supposed to call advocates on suspicious considerations or reject documents if they do not meet the required standards? Does a document for which the required stamp duty is not properly paid be legally registered? Can it be used in any Legal proceedings inspite of the clear provisions of the stamp duty Act?

[21]. There is no doubt in this case that the land Registrar was part and parcel of this syndicate. Firstly, he issued a title to the fourth defendant on the stationery of 2012 and backdated it to 25th October 1999. Secondly, he transferred the same on land Control Consent that was a forgery. Thirdly, the Charge was supported by a fake title aforesaid. Fourthly, the Land Control Consent for the charge was given to 1st defendant who had not by then, been registered as a registered proprietor. Fifthly, correct stamp duty for the transfer and charge were grossly underpaid. He did not offer any reasonable explanation for the aforesaid anomalies. It was his duty to check those anomalies.

[22]. The fourth defendant is a self-admitted impersonator and fraudster. He knew what he was doing was illegal. He admitted having benefited from this transaction. He is in court charged with forgery, fraud and impersonation. He admits having dealt with the first defendant herein, the Advocate for the Bank and others. He admitted having withdrawn the balance of the purchase price Kshs 4 million from Family Bank Branches in Kitale and Nairobi.

The Kshs.9,000,000/= loan by Family Bank:

[23]. The letter of offer from Family Bank dated 16/02/2015 to the 1st defendant stated as follows;

“Disbursement – A new loan account for Kshs 9,000,000. 00 shall be opened and the proceeds credited into your (Current/Savings) account for your utilization under purpose indicated in clause 4 above”

Clause 4 – purpose: Finance purchase of a Plot.

Contrary to that Letter the money was paid direct to an account in the name of Jonathan Namulala Nyongesa on 25/3/2015. A new account.

A deposit of Kshs 8,884,900 was deposited on 25/3/2015 being payment to Multi Business Shooters Ltd for Plot purchase. On the same day the money was disbursed as follows;

1. Kshs 2. 6 million to Multi Business Shooters Ltd.

2. Kshs 500,000/= A.W. Kituyi & Co. Advocates

3. Kshs 1,800,000/= Jacob Kasimwaka Machacha

4. Kshs 1,000,000/= Jonathan Namulala

Various issues arise here, why was the 1st defendant getting paid 2. 6 million from the 4th defendant when the funds were supposed to be deposited his account? If it was an overpayment as he alleges, why could he not transfer the amount to the (4th defendants) Jonathan Namulala Nyongesa Account less what was owed to him as overpayment? Was there any proof of an overpayment of Kshs 2. 6 million?

Why was A.W. Kituyi & Co. Advocates being paid Kshs 500,000/= by the (vendor) Jonathan Namulala Nyongesa when a clause on the Letter of offer to Multi Business Shooters Investors Ltd (the 1st defendant) from the 2nd defendant Bank stated as follows;

“9. 3 pay all professional fees, taxes and disbursements pertaining to the security perfection. These include valuation fees, stamp duty and Legal fees incidental to the preparation and registration of the securities”

Who was Jacob Kasimwaka Machacha to be paid 1. 8 million? Is this a reasonable payment for a broker? Jonathan Namulala (4th defendant) took Kshs 1,000,000/=. Why did the 1st and 2nd defendants the chargor and chargee for whom A.W. Kituyi advocates gave legal services ever pay the legal fees but instead, it was paid in full by a vendor who was not protected by the charge document prepared and who had not given any instruction to the lawyers aforesaid?

The evidence in court by the advocate for the 2nd defendant banks was that the 1st defendant has never paid a single instalment of the loan. Why has he failed to do so? Was there ever any intention to repay the said loan?

The findings:

[24]. From the evidence on record I make a finding of fact that the 1st plaintiff is the true Jonathan Namulala Nyongesa. That he was not at all involved in the alleged sale of this property. He had his original title. His National Identity Card, his KRA PIN were not used in this sale. He was impersonated by the fourth defendant who took photographs to impersonate him. I also find that he was not involved in any money transaction and he did not act in concert with the defendants at all. I find that the defendants herein all had met at one point or another as earlier analyzed in this Judgment. They had dealings with each other and they all knew or ought to have known that the sale transaction was fraudulent. That there was a forgery being committed. Indeed, they all knew when the money was deposited into the 4th defendants account. All of them except the Land Registrar met on 25/3/2015 and shared most of the money deposited on the imposter 4th defendants Account.

I make a finding of fact that the deposit of Kshs 5 million was not paid by the first defendant to the 4th defendant. It was not paid to the bank as per agreement. It was not paid out to anyone else at all. It was a hoax.

I also make a finding that the charge registered in the Land office was irregular. There was no Land Control Consent for the same. The title deed used to back it was a forgery. The stamp duty was not paid. These are some of the requirements the Land Registrar should have easily picked out. He had all the means at his disposal to do so. He did not do so. This was not only negligence, it was also because he was part of the fraudulent scheme. I am not at all surprised that the 1st defendant is not repaying the loan. Its director Joannex Waswa was part and parcel of this massive fraud. He never intended his company to repay the loan to the Bank. Fortunately, in my view, the Bank can, the law allowing, fall back on the guarantee signed by the Directors of the 1st Defendant if it so choses to do. The bank was also culpable in this matter on the way it dealt with the money borrowed.

[25]. In the final analysis I hold that the plaintiff has proved his case on the required standards. I grant him the orders sought against the defendants jointly and severally with costs and interests.

Dated at Bungoma this 5th day of October, 2017.

S. MUKUNYA

JUDGE.