[2023] KEELC 18137 (KLR)

Karugu (Suing as the Personal Representative of Peter Karugu Guandai - Deceased) v Kiburu & 3 others (Environment & Land Case 1375 of 2014) [2023] KEELC 18137 (KLR) (15 June 2023) (Judgment)

Neutral citation: [2023] KEELC 18137 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 1375 of 2014

LN Mbugua, J

June 15, 2023

Between

Winfred Nyambura Karugu (Suing as the Personal Representative of Peter Karugu Guandai - Deceased)

Plaintiff

and

Lydia Wambui Kiburu

1st Defendant

Riser Enterprises Limited

2nd Defendant

Simon Njuguna Kariuki

3rd Defendant

Mary Njeri Mburu

4th Defendant

Judgment

1. At the heart of the dispute herein is parcel L.R.2327/151, the suit land which was apparently owned by one Peter Karugu Guandai as at the time of his death on 26. 8.2009. The plaintiff identifies herself as a wife and the personal representative of the estate of Karugu, but they were not living together at the time of his death. The 4th defendant also identifies herself as a wife of the deceased, (Karugu) and that she was living with him as at the time of his death. She is also an advocate of the High Court of Kenya and was conducting legal transactions on behalf of the deceased.

2. Vide an indenture of Conveyancing dated 14. 9.2009 drawn by the 4th defendant, the suit property was transferred from Karugu to the 1st defendant. On 9. 12. 2011, the suit property was transferred from the 1st defendant to the 2nd defendant, and on the same date, the land was transferred to the 3rd defendant. The plaintiff contends that the transfer of the suit land by Karugu Guandai to 1st defendant was unlawful as it was done after his death. The 4th defendant on the other hand avers that the deceased had executed the transfer documents long before his death, and that the date of 14. 9.2009 is the one when the documents were lodged at the lands registry.

Plaintiff’s case 3. The Plaintiff commenced this suit by a plaint dated 28. 10. 2014, where she contends that her husband Peter Karugu Guandai (deceased) was the registered proprietor of the property known as Land Reference No. 2327/151 situated in Karen, having purchased it from one Matere Keriri vide a conveyance dated 14. 3.2008. She contends that while the deceased passed away on 26. 08. 2009, the suit property was purportedly transferred to the 1st Defendant vide an indenture of conveyance dated 14. 9.2009 drawn by the 4th Defendant. That the 1st Defendant purportedly transferred the suit property to the 2nd Defendant who in turn transferred the said land to the 3rd Defendant.

4. It is the Plaintiff’s case that the purported conveyances of the suit property to the Defendants were done as part of a fraudulent collusion between the Defendants to illegally divest the estate of the deceased of the suit property. She seeks a declaration that the estate of the late Peter Karugu Guandai (deceased) is the lawful proprietor of the suit property, that there be an order cancelling the conveyances to the 1st, 2nd and 3rd Defendants, an order requiring the defendants to vacate the suit premises, a permanent injunction restraining them (defendants) from dealing with the suit property and general damages as well as costs of the suit.

5. During the trial, the Plaintiff’s case was led by 1 witness; PW1 who is the Plaintiff. Her witness statement dated 28. 10. 2014 was adopted as her evidence and the documents in her list of even date were produced as exhibits.

6. In her witness statement, she states that Karugu Guandai neither sold nor transferred the suit property in his lifetime. He passed away on 26. 8.2009, thus he could not have executed the conveyance of the suit property to the 1st Defendant on 14. 9.2009 as he had been dead for 18 days. She further states that the 4th Defendant who purports to have witnessed the signing of the conveyance committed fraud as the deceased’s signature appearing on the conveyance could only be forgery for which the 4th Defendant was charged in Criminal Case No.1360/2012.

7. She states that in the alleged conveyance dated 14. 9.2009, the suit property was sold for 3 million yet it was worth ksh. 30million at the time and deceased’s estate never received the purchase price. She also states that the 1st Defendant then purported to transfer the suit property by a conveyance dated 9. 12. 2011 to the 2nd Defendant for ksh.10 million in furtherance of the fraud. She adds that the 2nd Defendant was aware that the suit property belonged to the deceased as she had caused a caveat emptor to be published in the daily nation newspaper of 21. 4.2011.

8. She also states that even though the suit property was transferred to the 3rd Defendant allegedly for ksh.11 million by conveyance dated 9. 12. 2011, no money was paid to the 3rd Defendant as it was just a scheme to further alienate the suit land from the estate of the deceased.

9. On cross-examination, Pw1 stated that she was not living with her late husband at the time of his death as they had separated in April 2007 of which Karugu went to live with the 4th defendant in a place called South lands. Pw1 then filed for divorce in July 2007 being CMC Divorce Cause 137 of 2007.

10. Pw1 had then rented accommodation in Kileleshwa and during the separation, she was privy to her late husband’s dealings to a limited extent. She also filed a case O.S No. 34 of 2007 relating to matrimonial properties. She gained access to the documents in respect of the suit land after her husband’s death and it is the date in the conveyance to the 1st Defendant that prompted her to conclude that there was forgery. She also stated that she placed the 1st caveat on the suit land when she commenced divorce proceedings and at the time, the land was in Matere Keriri’s name whom they had bought the land from.

11. She states that the 4th Defendant is a lawyer, but she was not her husband’s lawyer. She further stated that the Indenture of conveyance to the 1st Defendant was drawn by Njeri Mburu & Company Advocates and it was witnessed by the 4th Defendant though she did not see any sale agreement relating to the conveyance.

12. She stated that they purchased the suit land land from Matere Keriri thus it is possible that the title would still be in his name in 2007. They started paying for the land in 1993 and they were given possession though it remained vacant as their matrimonial home was in Loresho. PW1 also stated that she cannot remember when the title to the suit land was issued to her late husband but the signature on the conveyance was forged as a document examiner testified in the criminal case and confirmed that the signature was a forgery.

13. Referred to Criminal Case No.1360/2012 in which the 4th Defendant was charged, she stated that the 1st Defendant testified therein that no money changed hands in respect of the 1st conveyance. She also stated that she is the one who made a complaint to the police about the forgery and she is the one who gave samples of signatures of her late husband to the police.

14. Referred to the succession proceedings in respect of the estate, she stated that the succession cause is No. 1931/2009 and the 4th Defendant is an objector in the said cause. She added that she was granted a limited grant in the cause to initiate the present proceedings and she did not consult the 4th Defendant when applying for the same.

15. She also stated that she does not have personal evidence that the transaction relating to the transfer to Lydia was not done prior to the demise of her late husband.

16. On re-examination, Pw1 stated that the conveyance from the 1st Defendant to the 2nd Defendant was executed by the 4th Defendant as an Attorney of the 1st Defendant, by then Pw1 and the 4th Defendant had filed a petition and a cross-petition respectively and listed the suit property as an asset of the deceased.

17. She also stated that the conveyance from the 1st Defendant to the 2nd Defendant was done on 09. 12. 2011 and the subsequent transfer from the 2nd Defendant to the 3rd Defendant was done on the same day. They were both subsequently registered on the same day; 21. 12. 2011 and stamped on the same day. One bore day Book No.2014 of 21. 12. 2011 and the subsequent conveyance bore day book No.2015 of 21. 12. 2011. The value assessed for the purpose of stamp duty was ksh.10 million and 11million respectively on the same day.

Case for the 1st Defendant. 18. The 1st Defendant opposed to the suit vide her statement of defence dated 28. 09. 2015. She contends that she bought the suit property on 10. 8.2007 from Karugu Guandai (deceased) during in his lifetime.

19. In evidence, the 1st Defendant advanced her own case as DW1. Her witness statement allegedly dated 21. 10. 2015 and filed on 3. 11. 2015 was adopted as her evidence in chief; but the court did not trace the said document in the court file. She also produced her D-Exhibits 1-5, the documents in her bundle filed on 3. 11. 2015. Her case is that she began the purchase process of the suit land in year 2007 and the transfer was signed in 2009. By the time she signed the transfer, she had paid 50% of the purchase price and all documents were signed during Mr. Karugu’s lifetime.

20. When cross-examined, she stated that when Mr. Karugu died, she informed the 4th Defendant that she was not keen to proceed with the transaction.

21. On her relationship with the deceased and the 4th Defendant, she stated that she knew Karugu Guandai through the 4th Defendant who was her friend for a period of over 30 years. It was the 4th Defendant who approached her to buy the suit property, and it was agreed that the 4th Defendant would be the advocate for both the purchaser and seller of the suit land.

22. The 4th Defendant whose offices were at Embassy House sent the sale agreement to her and she signed it in August 2007. At the time Mr Karugu died she had paid 50% of the purchase which was ksh.4,320,000/=. She stated that the receipt dated 10. 8.2007 was issued to her by the 4th Defendant after she deposited cash money into the 4th Defendants’ bank account at Co-operative bank but she does not have the deposit slips as she gave them to the 4th Defendant.

23. DW1 also stated that Completion date for the sale of the suit land was on the 30th day following transfer of the property into Karugu’s name or 90th day after the date of the agreement whichever was earlier. Upon the death of Karugu, she decided not to proceed with the transaction, of which, this was a personal decision.

24. She stated that she did not see Karugu Guandai sign the agreement for sale as she dealt with the 4th Defendant who was the lawyer for both parties. She did not see him sign the conveyance either and there was no date when the indenture of conveyance was presented to her to sign. When she got the conveyance back, it had a stamp but it was still undated.

25. She told the court that she did not sell the suit property to the 2nd Defendant. The purpose of the Power of Attorney which she gave to the 4th Defendant was to surrender the property back to Karugu Guandai (Deceased) so that she could get a refund of the purchase price. She was not refunded the monies she paid towards the purchase of the suit property.

Case for the 2nd defendant 26. The 2nd Defendant filed its own statement of defence dated 28. 09. 2015, denying the allegations set out in the plaint against it. A witness statement and documents were filed for this party, but were not tendered as evidence during the trial.

Case for the 3rd Defendant 27. The 3rd Defendant filed a statement of defence dated 28. 9.2015. He denies the allegations contained in the plaint and contends that he is in possession of the suit land. He further contends that the late Karugu Guandai sold the suit land and signed transfer in his lifetime and the suit land was conveyed to him on 9. 12. 2011.

28. The 3rd defendant testified as DW2. His witness statement dated 21. 10. 2015 was adopted as his evidence, while his documents in the list of even date were produced as his exhibits. He testified that he purchased the suit property and executed the sale agreement dated 1. 12. 2011 between him and one of the directors of the 2nd Defendant. He further testified that he executed an indenture of conveyance and the same was registered on 21. 12. 2011 at the lands office.

29. He told the court that the 2nd Defendant was not the registered owner of the suit property when he bought it as it was in the 1st Defendant’s name. He was shown a Power of Attorney donated by the 1st Defendant to the 4th Defendant as well a sale agreement between the 2nd Defendant and the 1st Defendant dated 3. 11. 2011. Therefore, the 2nd Defendant had purchased the property from the 1st Defendant through the 4th Defendant and on the strength of those documents, he entered into an agreement to buy the suit land.

30. Dw2 contends that there was no caveat lodged on the title as at the time he purchased the suit land. By the time of his testimony, he had sold the suit property to an entity known as West Light International.

31. When cross-examined, he stated that the sale agreement dated 3. 11. 2011 was between him and the 2nd Defendant, the latter was not the registered owner of the suit land therefore the said clause is incorrect.

32. Referred to the conveyance between him and the 2nd Defendant and the one between the 1st Defendant and the 2nd Defendant, he stated that both are dated 9. 12. 2011, both registered on the same day. The 1st Defendant was the registered owner of the suit land at the time he purchased the said land, but he never dealt with her.

33. When re-examined, he stated that the registration instruments for the two transactions, that is the transfer from 1st defendant to 2nd defendant and the one from 2nd defendant to Dw2 were done simultaneously at the lands office, and there is nothing wrong about that. His lawyer in the transaction was Kanyora and Co. Advocates, while the lawyer for the seller was the 4th defendant.

Case for the 4th Defendant 34. The 4th Defendant filed a statement of defence dated 26. 10. 2015. She contends that the conveyance of the suit land to the 1st Defendant was executed by the deceased and left undated until date of presentation for registration as happens with conveyancing transactions. She admits that she was charged with fraud but avers that she was acquitted after a full trial.

35. The 4th Defendant advanced her own case as Dw3. Her witness statement dated 26. 10. 2015 and her Replying Affidavit sworn on 5. 11. 2015 were adopted as her evidence. Her documents are in a list dated 26. 10. 2015.

36. Her testimony is that the deceased, Karugu was her husband while the Plaintiff herein is her co-wife. It is her testimony that at the time the sale agreement between Karugu and 1st defendant was entered into in year 2007, the deceased and the Plaintiff were not staying together as the Plaintiff had filed divorce proceedings as well as matrimonial property case so she could not have known what was happening in Karugu’s life as she had moved out of their matrimonial home.

37. She testified that the sale was conducted in her law firm Njeri Mburu Advocates and the payments were made by the 1st Defendant to her law firm which issued a series of receipts produced by the 1st Defendant. She stated that for the last receipt No.0705, the payment was made on 3. 2.2009 for ksh.2,020,000/= and it constituted ksh.1,700,000/= as a further deposit of the purchase price while kshs.320,000/= was stamp duty which was to facilitate transfer. By then, Karugu was alive and well so these transactions were done during his lifetime.

38. She testified that as of February 2009, she witnessed the execution of the transfer of the suit land from her husband, Karugu to the 1st Defendant, and the latter went home with a copy as security. The document was undated. She then handed the original transfer to her husband to undertake registration as she had given him the funds. He had a contact who was willing to expedite the process, and that is how the suit land came to be handed over to the 1st Defendant.

39. She stated that it is not unusual for a conveyance to be executed but left blank at the part of the date but it would have to be registered. The deceased signed the transfer in February 2009. She stated that when the deceased sold the land, it was not in his name, he had purchased it from Mr. Metere Kereri but he had not concluded the purchase price so part of the purchase price was gotten from the 1st Defendant.

40. She stated that her husband was a civil engineer who needed funds to conduct his business but due to the divorce case, the 1st Defendant had placed caveat on all his properties. Karugu was also sickly, that is why they needed funds at that time, so they decided to sell the suit property which he was in the process of buying so nothing was done underhand.

41. When cross-examined, Dw3 stated that she was married to the deceased for 17 years and she was staying with him at the time of his death. She further stated that she knows that there is a succession case in respect of the Estate of Karugu Guandai and one of the issues to be dealt with was if she was a wife of the deceased. She stated that she witnessed the sale agreement between Karugu Guandai and the 1st Defendant on 10. 8.2007 and she was acting for both parties. The purchase price was ksh.8 million of which, the 1st Defendant paid a total of kshs.4. 3 million inclusive of the stamp duty. The sale agreement had provided that the balance of the purchase price would be paid after the transfer of the property but it was not paid because her husband passed way between the period of payment of deposit and when the process of transfer was ongoing.

42. She stated that since she was not involved in the actual process of transfer, she did not know where the documents were, but the 1st Defendant had not paid the full purchase price as at the time of her husband’s death. In the conveyance between Karugu and the 1st Defendant, the same is dated 14. 9.2009 and the execution page shows she witnessed the document. At page 5 of the document, it shows the date of execution.

43. She stated that by 14. 9.2009, Karugu had passed on, so he did not execute on that date. After the death of her husband, she executed the sale agreement dated 3. 11. 2011 between the 1st and 2nd Defendants on behalf of the 1st Defendant who was selling to the 2nd Defendant.

44. She stated that the 1st Defendant did not finish paying for the suit land. She declined to proceed yet there was a title registered in her name. The 1st Defendant donated a Power of Attorney to her to deal with the suit property and delegate her position as the registered owner and she was to proceed with sale and refund the money which the 1st Defendant had paid.

45. Referred to the evidence of the 1st Defendant, she stated that the Power of Attorney she got from her enabled her to deal with the property. She told the Court that she did not have evidence of payment made by the 2nd Defendant because after paying 10% deposit, the sale aborted as there was no payment of balance made within 90 days. The 2nd Defendant offered the same property to another purchaser but it had to be registered because in the subsequent sale, 2nd defendant was making something more, that is why there were simultaneous registrations.

46. She stated that the conveyance dated 9. 12. 2011 between the 1st and 2nd Defendant makes reference to a consideration of ksh.10 million but that is incorrect. The 1st Defendant did not execute the said conveyance while the conveyance dated 9. 12. 2011 between the 2nd and 3rd Defendants talks of a purchase price of sh.15 million and the 3rd Defendant told the Court that he paid the purchase price to M.N Kanyora Advocates and she does not have evidence of that payment in Court.

47. She stated that after the transfer was concluded, criminal charges were leveled against her and the 1st Defendant declined to deal with her and chose to wait for the conclusion of the case, so the 1st defendant has not been paid her refund. Referred to succession cause 1931 0f 2009, where the suit land is listed as asset no 14, Dw3 stated that her advocate just duplicated the documents of the plaintiff, but her position is that the suit property does not form part of the estate of the deceased.

48. When re-examined, she stated that the insertion of another date at registration in a conveyancing document doesn’t amount to fraud.

Submissions 49. The submissions of the plaintiff are dated 2. 11. 2022. She urges the Court to draw an adverse inference from the difference in consideration in the agreement for sale in favour of the 1st Defendant which indicates ksh.8 million and the conveyance document which indicates 3 million. She points out that the variance is a case of tax evasion and is illegal. She relies on the decision in Trans Mara Sugar Company Limited v Ben Kangwaya Ayiemba & another [2020] eKLR to submit that courts will not enforce contracts that contravene the law.

50. Relying on the case of Esther Kabugi Njuguna v Martha Chebet & others [2020] eKLR, she submits that the purported sale and conveyance of the suit property to the 1st Defendant would also be liable to be nullified for lack of consideration which the 1st and 4th Defendants admitted that it was not paid in full.

51. Thus in tandem with the provisions of Section 26 (1) of the Land Registration Act, the transfer of the suit land from the deceased to the 1st defendant is liable to be cancelled. To this end, she relies on the case of Alice Chemutai Too v Nickson Kipkurui & others [2015] eKLR. She adds that having not obtained any good title from the late Guandai, it naturally follows that the 1st Defendant could not have been in any position to pass any good title to the 2nd Defendant who in turn had no good title to convey to the 3rd Defendant. She relies on the case of Mohamed Shananaz Butt vs Kenya Revenue Authority & others [2020] eKLR to submit that if a buyer acquires a defective title, they cannot claim to have been an innocent purchaser.

52. The plaintiff points out that the 1st Defendant was categorical that she did not see the late Guandai sign either the purported sale agreement or the conveyance. She argues that the 2nd,3rd and 4th Defendants are so bold in their fraud so as to even purport to sell and transfer the suit property to yet another party known as Westlite International Limited whilst this suit was subsisting contrary to the doctrine of lis pendens as defined in Naftali Ruthi Kinyua v PatricK Thuita Gachure and City Council of Nairobi Civil APPeal No.44 of 2014.

53. The submissions of the 1st defendant are dated 21. 12. 2022 where they address the following issues;a.Whether the 1st Defendant acquired good title to the suit property from the deceased.b.Whether the conveyance from the 1st Defendant to the 2nd Defendant was proper, legal and lawful.c.Who ought to bear the 1st Defendants costs?

54. The 1st Defendant submits that forgery is a serious allegation that cannot be proven by inference through mere cursory glances at documents but by calling a document examiner, whom the Plaintiff failed to call to ascertain that the sale agreement between the 1st Defendant and the late Karugu Guandai and the subsequent conveyances were forgeries. To this end, reference was made to the case of Kinyanjui Kamau v George Kamau [2015] eKLR.

55. She also submits that the value of ksh.3 million on the conveyance document between the late Guandai and the 1st Defendant was assigned to the property by the Government valuer for purposes of payment of stamp duty pursuant to the provisions of Section 10(1) of the stamped duty Act and if the Plaintiff was aggrieved by the assessment, she would have sought for reassessment as per the procedure at Section 17 of the Stamp duty Act.

56. On the issue of the legality of the conveyance from herself to the 2nd Defendant, she submits that in 2011, she contacted the 4th Defendant and indicated that she wanted to rescind the agreement for sale and at that point, she was aware that the suit property had been transferred to her. As such, she donated a Power of Attorney specifically authorizing the 4th Defendant to sign the transfer forms or any other legal documents necessary to transfer the suit property. The said Power of Attorney was registered and she did not revoke it prior to the registration of the transfer to the 2nd Defendant and neither has its validity been challenged by the Plaintiff in any proceedings. She submits that the 4th Defendant was properly empowered and well within the law in executing the conveyance from herself to the 4th Defendant.

57. The submissions of the 2nd and 3rd defendants are dated 9. 10. 2022, where they argue that the purchase of the subject property by the 2nd Defendant from the 1st Defendant was not fraudulent as there were no anomalies to the said transaction, and that the sale agreement dated 3. 11. 2011 between the 4th Defendant and the 2nd Defendant confirms that the 4th Defendant was selling the suit property by virtue of a donated and registered Power of Attorney IP/A57375/1. They rely on the case of John Guchu Njoroge v Mboi Kamiti Farmers Company Limited [2019] eKLR to submit that a donated power of attorney is valid unless revoked.

58. They added that while the Plaintiff alleges that she placed a caveat emptor in the newspaper on 21. 4.2011, it has no legal consequence as it was not registered on the title as required under Section 68 of the Land Registration Act No.3 of 2012.

59. They rely on the case of C’est Bon Superior School Ltd v Joseph Alex Gichuhi & 2 others [2019] eKLR as well as Shimoni Resort v Registrar of Titles & 5 others [2016] eKLR to submit that the 2nd Defendant is a bonafide purchaser for value without notice.

60. The submissions of the 4th defendant are dated 5. 12. 2022, where she avers that the Plaintiff lacks capacity to bring this suit, pointing out that the issue to determine the administrators of the Estate of Mr. Karugu Guandai are pending determination in Succession Cause No. 1931 of 2009. She also submits that since the suit property is listed as an asset of the deceased in Succession Cause No 1931 of 2009, the filing of this suit offends Section 6 of the Civil Procedure Act.

61. She relies on the case of Gichinga Kibutha v Caroline Nduku [2018] eKLR to submit that the particulars of fraud alleged against her were not proved to the required standard under Section 107 of 109 of the Evidence Act. Adding that through the evidence of DW1, it is clear that the suit premises were sold by the deceased during his lifetime and the conveyance drawn and executed without dating as it happens in many conveyancing transactions.

62. On whether there was consideration, she submits that DW1 established that she paid the purchase price and since the Plaintiff was not involved in the transactions, she cannot dispute its performance.

Determination 63. Having regard to the pleadings, the evidence adduced and the rival submissions, I deem it fit to frame the issues for determination as follows;i.Whether the Plaintiff has capacity to file this suit?ii.Was the sale and transfer of the suit property from the deceased to the 1st Defendant done through fraud?i.Whether the subsequent sale and transfer of the suit property to the 2nd and then to 3rd defendant was also conducted through fraud.iv.Whether the suit land should form part of the estate of the deceased Karugu Guandai?

64. On the 1st issue, the 4th Defendant has argued that the Plaintiff has no capacity to file this suit pursuant to status quo orders issued on 28 .9. 2012 in Succession Case No.1931 of 2009; In the Matter of The Estate of Peter Karugu Guandai (deceased). However, the said order does not revoke the Plaintiffs’ Limited Grant of Letters of Administration Ad Colligenda Bona issued on 29. 4.2010 which gave her capacity to file this suit. I conclude that the plaintiff has capacity to sue in this matter.

65. On whether the sale and transfer of the suit property from the deceased to the 1st Defendant was done through fraud, the defendants argue that the deceased sold the land during his lifetime. The plaintiff however contends that the transfer document bears a date of 14. 9.2009, yet Karugu had already passed on. It is not in dispute that Karugu died on 26. 8.2009, while the conveyancing instrument of transfer to the 1st defendant is dated 14. 9.2009. The explanation given by DW1 and Dw3 is that Karugu had duly signed the relevant documents, that the 4th defendant only dated the transfer document at the point of registration.

66. The provisions of Section 107 of the Evidence Act stipulate as follows;“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

67. While Section 109 thereof further provides that:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

68. What resonates from the above analysis is that he who alleges bears the burden of proving, see - Jennifer Nyambura Kamau v Humphrey Mbaka Nandi [2013] eKLR.

69. The claim of the plaintiff as set out in her pleading is anchored on fraud. She avers that the transfer of the suit property from Karugu to 1st defendant, then to the 2nd and finally the 3rd defendant was done through fraud. It thus behooves the plaintiff to proof first and foremost that there was fraud in the aforementioned transactions. To this end, I pose the question; Does the title now held by the 3rd Defendant or anyone claiming under him now fall for impeachment under Section 26 of the Land Registration Act?. Was the said title acquired unprocedurally and or through fraud, initially by the 1st defendant as claimed by the plaintiff?.

70. The legal position as set out in Article 40(6) of the Constitution and Section 26 of the Land Registration Act is that title to property that is obtained fraudulently or illegally in violation of the provisions of the law cannot be sacrosanct; See Chemey Investment Limited v Attorney General & 2 others [2018] eKLR, Amos Kibata Githeko v Loise Gachiku Kinuthia [2021] eKLR, Elijah Makeri Nyangwara v Stephen Mungai Njuguna & another [2013] eKLR.

71. In Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others [2015] eKLR the Court held that;“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme. Where one intends to impeach title on the basis that the title has been procured by fraud or misrepresentation, then he needs to prove that the title holder was party to the fraud or misrepresentation.”

72. The Black’s Law Dictionary defines Faud as follows;“Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right”

73. In the case of R. G. Patel v. Lalji Makanji [1957] EA 314 the former Court of Appeal for Eastern Africa stated thus:-“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

74. In her pleadings, the plaintiff has alluded to the signature of the deceased having been forged in the transfer instrument. The only evidence adduced to support this allegation is the fact that the transfer document bears the date of 14. 9.2009, by which date Karugu had passed on. The plaintiff did not however tender any plausible evidence to indicate that the deceased did not sign the said document. During cross-examination by counsel for the 4th defendant, the plaintiff had stated thus;“I do not have personal evidence that the transaction relating to the transfer to Lydia was not done prior to the demise of my late husband”

75. On the other hand, Dw1 produced the sale agreement dated 10. 8.2007 indicating that the sale of the land between Karugu and the 1st defendant commenced a while back in year 2007. Looking at the signature of Karugu Guandai with a layman’s eye as imprinted in the sale agreement dated 10. 8.2007, vis a vis his alleged signature in the transfer document dated 14. 9.2009, the two signatures appear the same.

76. Apparently, the 4th defendant was charged with various offences relating to uttering false documents in the criminal case 1360 of 2012 (see plaintiffs documents). In a judgment delivered on 6. 10. 2014, (judgment is an exhibit of 4th defendant), the court noted that the hand writing expert did not point out the similarities or dissimilarities between the alleged forged signatures of Karagu Guandai. The said court had found that there was no evidence to prove that the signature of Karagu Guandai was inserted after his death.

77. Similarly, I find that no evidence has been tabled before this court to indicate that the signatures of Karagu were inserted on the sale agreement and the transfer instrument after his demise.

78. It is not lost to this court that in respect of the aforementioned criminal case, the plaintiff has chosen to avail only the charge sheet containing numerous counts of offences, but was mute on the outcome, particularly the judgment. She is thus guilty of non-disclosure of material facts which undermines justice and introduces festering waters into the pure steams of justice; See - In re Estate of Julius Ndubi Javan (Deceased) [2018] eKLR.

79. At this juncture, it is pertinent to interrogate the legal frame work which governs the execution of documents in order to determine the validity of the transfer document dated 14. 9.2009. The provisions of Section 108 of the Registered Land Act Cap 300 (Repealed) stipulated that;“Every disposition of land, a lease or a charge shall be effected by an instrument in the prescribed form…”.

80. While Section 109 thereof provided that;(1)Every instrument evidencing a disposition shall be executed by all persons shown by the register to be proprietors of the interest affected and by all other parties to the instrument.(2)Subject to section 124 (2), an instrument shall be deemed to have been executed only –a.by a natural person, if signed by him;…..”

81. The verification of the execution was provided for under Section 110 of the aforementioned statute in the following terms;“(1) Subject to subsection (3), a person executing an instrument shall appear before the Registrar or such public officer or other person as is prescribed and, unless he is known to the Registrar or the public officer or other person, shall be accompanied by a credible witness for the purpose of establishing his identity”.

82. The above provisions of law are echoed in the current legal regime to be found under Sections 43- 46 of the Land Registration Act. In particular, Section 44 thereof provides that;(1)Except as otherwise provided in this Act, every instrument effecting any disposition under this Act shall be executed by each of the parties consenting to it, in accordance with the provisions of this section.(2)The execution of any instrument referred to in subsection (1), by a person shall consist of appending a person’s signature on it or affixing the thumbprint or other mark as evidence of personal acceptance of that instrument”, Emphasize added.

83. From the foregoing provisions of law, (both old and new law), it is apparent that the transfer document had been duly signed and had therefore met the requisite criteria set out under the applicable law.

84. It is noted that the 4th defendant has given a plausible explanation that the instrument of conveyance of the suit property from Karagu to the 1st defendant had been executed way back in February 2009, and she only inserted the date of 14. 9.2009 at the time of registration. That evidence is corroborated by Dw1 who testified that at the point of signing the conveyancing document, the said instrument did not have a date. She went on to state that;“I got the conveyance with Mr Karugu’s signature soon after I had signed. When I got it back, it had a stamp but it was still undated”

85. I find that in absence of any challenge to the signature of Karugu both in the sale agreement of 10. 8.2007 and the conveyancing document of 14. 9.2009, it follows that the latter document had been duly executed paving way for it to become a registrable instrument.

86. The fact that Dw1 had purported to rescind the contract of sale does not in any way invalidate the conveyancing instrument. After all, she had already done her part in so far as execution of the transfer was concerned. Further, she was purporting to rescind the contract after the death of the vendor, Karugu.

87. Another point for consideration relates to the payments made by 1st defendant. The 1st payment of sh. 1 000 000 was made on 16. 7.2008, with others being made on 10. 8.2007 (sh.800 000), on 22. 11. 2007 (sh 500 000) and on 3. 2.2009 (sh.2 020 000) giving a total of sh. 4 320 000. All these amounts were made during the lifetime of Karugu and this buttresses the claim of the 1st and 4th defendant’s that indeed Karugu had embarked on selling the land, long before he even acquired a title to the same in year 2008.

88. I also find that the status of the parties (read plaintiff and 4th defendant) in relation to the deceased is a point of concern. This is a situation whereby the deceased was separated from the plaintiff, and in her own words, their relationship was not cordial. The deceased was living with the 4th defendant. The narration given by the 4th defendant is that though the deceased had purchased the land from one Matere keriri in 2007, he was unable to conclude the purchase due to caveats placed on by the plaintiff in the ongoing divorce case, and that Karugu was also ailing. He thus needed funds, hence the move to sell the suit land to the 1st defendant. This piece of evidence is buttressed by the contents of Clause no.1 in the agreement of 10. 8.2008 where the vendor (Karugu) had indicated that the property had not yet been transferred to him. The foregoing is another tell tale sign that Karugu had indeed embarked on selling the suit property long before it was registered in his name. The plaintiff on the other hand has no narrative at all to give this court appertaining to the transactions carried out by Karugu in respect of the suit property as from year 2007 up to the time of his demise on 26. 8.2009.

89. It follows that whatever Karugu did in the aforementioned transactions is intricately intertwined with the actions and or omissions of the 1st and 4th defendants. Thus the deceased (now his estate) cannot be severed from any kind of irregularities arising out of the said sale transactions.

90. In the case of C’est Bon Superior School Ltd v Joseph Alex Gichuhi & 2 others [2019] eKLR cited by the 2nd and 3rd defendants, I was dealing with a situation whereby a vendor (1st defendant) sold land using the family company but without the knowledge of his wife. I held thus;“Any fraud, illegalities and irregularities attributed to 1st defendant ought to be borne by his estate. And since the case against him was marked as abated, then such blame cannot be off loaded unto the 2nd defendant”.

91. In the case at hand, the plaintiff has not sued the estate of Karugu, rightly so because she is the one representing the said estate in this suit. But again, she cannot purport to offload any blame unto the defendants in relation to the sale of the suit land by Karugu to 1st defendant while leaving out the estate of the deceased!.

92. In the case of Peter Nyaga Kairu v Esther Wanjiku Njau & 5 others [2019] eKLR, where a man was claiming the land of his deceased brother long after the death of the said brother, I invoked the latin maxim; “ Mortui non morden” which means that “dead men don’t bite/ dead men don’t tell tales.” In the instant case, Karugu is gone, he was not living with the plaintiff. Thus the plaintiff cannot purport to cast aspersions on the dealings which were undertaken by Karugu during his lifetime in so far as the transfer of the suit property is concerned.

93. The upshot of the analysis herein is that there is no tangible evidence to indicate that the sale and transfer of the suit property from the deceased to the 1st Defendant was conducted though fraud.

94. Was the subsequent sale and transfer of the suit property to the 2nd and then to 3rd defendants also done through fraud?. Having found that there is no evidence of fraud in the transfer of the suit property by Karugu to 1st defendant, it then follows that the plaintiff has no capacity to challenge the validity of the subsequent sale transactions.

95. It is clear that the 1st defendant has not been refunded back her monies. However, she has not set out her claim in the pleadings. None of the other defendants have set out a claim against each other. It follows that the call made by the plaintiff for the impeachment of the title to the suit property is not merited.

96. Having held that there was no evidence of fraud in the sale of the suit land by Karugu, and having made a pronouncement that the titles to the said land cannot be impeached, I find that the suit land does not form part of the estate of the deceased.

97. Further, whatever dues are owed to any party and or entity, then the same are recoverable as debts.

98. In conclusion, I find that the plaintiff has not proved the particulars of fraud set out comprehensively in paragraph 11 (i-xviii) of the plaint on a balance of probabilities. In the circumstances, the plaintiff’s suit is hereby dismissed. On costs, I have taken into consideration that some of the combatants herein (read plaintiff and 4th defendant) still have ongoing legal duels to deal with (i.e probate matters), while the issue of unpaid funds to some parties still lingers. In the circumstances, I direct that each party bears their own costs of the suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Koech for PlaintiffMwadumbo for 1st DefendantGachau Karuiuki for 2nd and 3rd Defendant and holding brief for Mbigi Njuguna for 4th DefendantCourt assistant: Philis