[2017] KEHC 4240 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MOMBASA

CIVIL SUIT 255 OF 2005

KAZUNGU BAYA KITUNGA AND 13 OTHERS….….PLAINTIFF/APPLICANT

VERSUS

YAA BAYA AND ANOTHER …………………........................… DEFENDANTS

JUDGMENT

1. The Plaintiffs have filed this suit against the Defendants jointly and severally seeking.

1) A declaration that the Plaintiffs have an interest estate and right of ownership possession and title to and/or over the said land parcel number MAJAONI BLOCK5A/358 measuring 3. 70 hectares and the land registrar Kilifi do immediately issue a title deed to the Plaintiffs.

2) A declaration that the sale agreement between the 1stDefendant and the 2ndDefendant is null and void ab initio and the 2ndDefendant is a trespasser and thus has no estate or interest or right of ownership possession of title whatsoever or any other right to or over the said 3. 70 hectares of the property that is MAJAONI/BLOCK 5A/358and the registration of the said Majaoni/block a/358 in the 2ndDefendants name be cancelled and the 2ndDefendant do surrender the title of the property to the Land Registrar Kilifi for rectification.

3) An order that the 1st and 2ndDefendants do meet the costs of and incidental to issuing another title deed to the Plaintiff for the said land parcel number MAJAONI/BLOCK A/358 measuring 3. 70 hectares and the 2nd and 3rdDefendants do forthwith and/or within such a period as may be provided by the Honourable Court remove any structure or construction thereon.

2. It is the Plaintiff’s case that the 1stDefendant fraudulently and with intention to defraud the Plaintiffs colluded with the 2ndDefendant and sold them land MAJAONI/BLOCK 5A/358under the pretense “Purchaser Without Notice”. In paragraph 16 of the plaint the particulars of the 1stDefendant’s fraudulent misrepresentation and deceit are given as follows;

a) That the 1stDefendant sold the said portion of land MAJAONI/BLOCK 5A/358with the knowledge that he had no authority to do so.

b) Make representation to the land officers at Kilifi that he was the sole inheritor of the said piece of land.

c) Intentionally deceived the relevant authorities that all thePlaintiffs were deceased

d) Sold the said piece of land without producing and exhibiting death certificates and letters of administration of the estate of Sidi Baya Kitunga and/or thePlaintiffs

e) Maliciously and intentionally failed to disclose to the relevant authority the existence of Kaheso Baya Kitunga (14th Plaintiff) and Nyeru Baya Kitunga (13thPlaintiff) who have priority over all the rest.

f) Misled the Land Control Board and fraudulently obtained consent.

g) Willfully and knowingly fleeced the Plaintiffs of their rightful inheritance

h) Intentionally failed to disclose the Plaintiffs objections to the sale.

3. The particulars of fraudulent misrepresentation and deceit of the 2ndDefendant are given as follows;

a) The 2ndDefendant entered into a sale agreement with the 1stDefendant whilst aware and with the knowledge that the 1stDefendants brothers were still in existence and living.

b) Unlawfully and without consent of the Plaintiffs executed the transfer of the said land.

c) Unlawfully concealed information from the Land Control Board.

d) Colluded with the 1stDefendant to fleece the Plaintiffs off their right of inheritance and land.

e) Ignored the existence and objections of the Plaintiff.

f) Purchased the said portion of land with the knowledge that the initial registered proprietor Sidi Baya Kitunga is deceased.

g) Purchased and/or entered into a Sale Agreement with the 1stDefendant without the 1stDefendant exhibiting Letters of Administration of the estate of Sidi Baya Kitunga and the Plaintiffs.

h) Caused immediate sub-division and issuance of title in his name without obtaining consent and consulting all the interested parties.

i) Fraudulently obtained consent form the Land Control Board whilst being aware of existence of Kahaso baya Kitunga and Nyeru Baya Kitugna and Nyeru baya Kiutnga.

4. The 1stDefendant who was duly served with summons to enter appearance and copies of plaint neglected to enter appearance and/or file defence within the prescribed period. Interlocutory judgment was then entered against him and the matter proceeded to full hearing.

5. Upon being served with summons to enter appearance and copies of plaint, the 2ndDefendant entered appearance the same is dated 7th March 2006 and filed in Court 8th march 2006. By a statement of defence dated 23rd March 2006 and filed in Court on the 24th March 2006 he denies the particulars of the plaint specifically paragraphs 7 to 12. In answer to paragraphs 12, 17, 18-21 he stated that he filed an application the High Court to quash the award of the Land Disputes Tribunal vide Miscellaneous Application Number 64 of 2005. By the time of filing his defence the same was pending. In paragraph 6 of the statement of defence the 2ndDefendant states the he purchased land parcel NUMBER MAJAONI/BLOCK 5A/358from the 1stDefendant who was the proprietor of the land. He also denied that he acquired the suit land through collusion, misrepresentation, deceit or fraud as stated in paragraphs 15 and 16 of the plaint.

6. On 21st March 2007 by consent of all parties the Plaintiffs suit against the third Defendant was dismissed with costs. During the pendency of the suit the Court issued orders restraining the 2ndDefendant from selling or transferring the suit land until the suit was heard and determined.

7. I have considered the pleadings and the evidence or record. There is no doubt that the 1st to 12thPlaintiffs are the respective sons and daughters of the late Baya Kitunga and the 13th and 14thPlaintiffs are the widows of the late Baya Kitunga. The widows have an overriding interest in respect of the suit property as against the other Plaintiffs and the 1stDefendant. It is also not in dispute that the 1stDefendant caused the suit land to be sub-divided into land parcel NUMBERS MAJAONI/BLOCK 5A/359 AND MAJAONI/BLOCK 5A/359.

8. The Plaintiffs have filed their agreed issues as follows:

1) Whether the property known as parcel number MAJAONI/BLOCK 5A/47measuring approximately 5. 4 hectares belonged to the late Baya Kitunga

2) Whether all the Plaintiffs were entitled to the aforesaid property s beneficiaries even though the same was registered in name of SidiBaya Kitunga (now deceased) as a first registration and if so whether she held the same in trust for herself together with all the Plaintiffs.

3) Whether the 1stDefendant without consent of the Plaintiffs disposed of MAJAONI/BLOCK 5A/358which belonged to himjointly with the Plaintiffs as co-beneficiaries.

4) Whether being aggrieved by the said development the Plaintiffs referred the matter to BAHARI DIVISIONAL LAND DISPUTES TRIBUNAL VIDE LAND DISPUTE TRIBUNAL CAUSE NO.8 OF 2004.

5) Whether the tribunal determined the said reference in favour of the Plaintiffs.

6) Whether the 2ndDefendants reasonably knew or ought to have known that land parcel number MAJAONI/BLOCKS 5A/358belonged to all the Plaintiffs in common with the 1stDefendant who therefore lacked capacity to unilaterally sell the said property.

7) If so whether the 2ndDefendant is a purchaser for value without notice.

8) Whether the tribunals decision was adopted vide Kilifi SRMCC No.40 of 2006 and is therefore a binding order of the Court.

9) Whether the Plaintiffs are entitled to the prayers sought.

9. When the matter commenced on 29th July 2010 the 1stPlaintiffKazungu baya Kitunga told the Court that he the son of Baya Kitunga who was the registered owner of MAJAONI/BLOCK 5A/47. That the rest of the Plaintiffs are his siblings except the 13th and 14th who are wives of the said Baya Kitunga. The deceased Baya Kitunga registered the first wife Sidi Baya Kitunga. The whole parcel measures 13 acres. The 1stDefendant approached the Plaintiffs and he was allowed to sell four (4) acres. Unknown to the Plaintiffs the 1stDefendant sold the entire piece of land to the 2ndDefendant. The Plaintiffs now demand nine acres which they said was sold without their consent. They are claiming MAJAONI/BLOCKS 5A/358measuring nine acres which is now in the name of the second Defendant. The copy of title deed was produced as exhibit – P1. After the 1stPlaintiff testified the Plaintiffs closed their case.

10. The 2ndDefendant in his part told the Courtthathe is the registered owner of land parcels numbers MAJAONI/BLOCK 5A/358 AND 5A 359. The produced copies of the two title deeds as exhibit D1, and D2 respectively. He told the Courtthat he bought the two parcels from Yaa baya Kitunga the 1stDefendant. He stated that he paid the full purchase price. He further told the Courtthatthe original land parcel number MAJAONI/BLOCK A/47was registered in the names of Sidi Baya Kitunga the 1stDefendants mother. He told the Court that later after purchasing the parcels he had the transfer to be effected in his favour. That he challenged the award of the Bahari Land Disputes Tribunal in the High Court. He pray that the Plaintiffs suit be dismissed with costs. The 2ndDefendant did no call any witness.

11. At the conclusion of the hearing the parties were given time to file written submissions. I do not see any in the Court record. I will go ahead and write the judgment on the basis of the evidence on record. The 2ndDefendant claims to have challenged the award from the Bahari Land Dispute Tribunal but he did not produce any document to inform on this. When he was cross examined, the 2ndDefendant told the Court that he did not go to the Land Control Board personally as he had an agent. He further told the Court thathe did not know the 1stDefendants siblings as he does not come from that area.

12. The title deeds produced by the 2ndDefendant as exhibitsD1 and D2 show that they were issued in the 2000. Specifically for Land parcel Number MAJAONI/BLOCK 5A/358shows that it was issued on 9th May 2000. It measures 3. 70 hectares. Under the proprietorship section it states that it is a partition of MAJAONI/BLOCK A/47. Entryno 3 and 4 do not state who was the owner of the plot before. It does not state that the 2ndDefendant acquired it. A glance at the said title deed one can tell something is amiss.

13. From the evidence of the 1st Plaintiff though land parcel number MAJAONI/BLOCK 5A/358was registered in the names of Side Baya Kitunga she held the same in trust for herself and the Plaintiffs. She was the oldest of Baya Kitunga’s wives. The evidence of the 1stPlaintiff confirms that this was ancestral land hence all the Plaintiffs were entitled to the same. It is also clear from the evidence on record that the Plaintiffs consented to the 1stDefendants disposing of four (4) acres only. This is why they are not claiming land parcel number MAJAONI/BLOCK 5A/359.

14. I have gone through the Plaintiffs exhibits. The land was transferred without following the procedure. Sidi Baya Kitunga ws deceased by then. It is not clear how the land registry officials were able to transfer the land to the 2ndDefendant without evidence of grant of Letters of Administration. The transfer was irregular as the 1stDefendant had no capacity to dispose of the land of deceased person. Because they were aggrieved the Plaintiffs took the matter before the Bahari Land Disputes Tribunal who awarded nine (9) acres to the Plaintiffs. The said award is in favour of the Plaintiffs it was adopted by an order of the Court in Kilifi SRMCC land case No. 4 0f 2005. The 2ndDefendant claimed he had challenged the award but did not produce any anything to confirm this. The 2ndDefendant ought to have doe due diligence to confirm that the 1st Defendant was the registered owner. The 2ndDefendant told the Court that Land Control Board but the sent an agent. He does not identify the agent.

15. As I stated earlier this was the land registered in the names of a deceased person’s he ought to have realized something was not right. The letters from The Land Registrar Kilifi/Malindi Mr. E. N. Thoya dated 16/3/2005 confirms this position the LAND PARCEL NUMBER MAJAONI/BLOCK A/47 was sub-divided without Letters of Administration and/or grant. The 2ndDefendant cannot benefit from an illegality. He is lucky the Plaintiffs are not claiming NUMBER MAJAONI/BLOCK 5A/359. All in all I find that the 1stDefendant had no capacity to sell the suit land to the 2nd Defendant. The fact that the award from Bahari Land Disputes Tribunal was not aside means that it is binding on the 2ndDefendant. I find that the Plaintiffs have proved that they have been dispossessed of the land. I find that they have proved their case on a balance of probabilities as against the Defendants. I am satisfied that the title herein was acquired through misrepresentation. It was acquired illegally and fallsunder the exceptions provided under section 26 4(b)and (c) of the Land Registrations Act No. 3 of 2012. It cannot be conclusively stated that the 2ndDefendant is the proprietor of land PARCEL NUMBER MAJAONI/BLOCK 5A/358. Accordingly by judgment is entered for the Plaintiffs as against the Defendants jointly and severally as follows;

1. A declaration be and is hereby issued that the Plaintiffs have an interest estate and right of ownership, possession and title to and/or over the said land parcel NUMBER MAJAONI/BLOCKS 5A/358 measuring 3. 70 hectares and the Land Registrar Kilifi do issue a title deed to the Plaintiffs.

2. A declaration be and is hereby issued that the sale agreement between the 1stDefendant and the 2ndDefendantid null and void abnitio and the 2ndDefendant is a trespasser and thus has no estate or interest or rights of ownership possession of title whatsoever or any other right or over the said 3. 70 hectares of the property that is MAJAONI/BLOCKS 5A /358and the registration of the saidMAJAONI/BLOCK 5A/358in the 2ndDefendants name be cancelled and the 2ndDefendant do surrender immediately the title of the property to the land registrar Kilifi for rectification.

3. The 1st and Defendant do meet the costs of and incidental to issuing another title deed to the Plaintiffs for land parcel number MAJAONI/BLOCK 5A/358measuring 3. 70hectares.

4. The 2ndDefendants hereby ordered to remove any structures thereon within six (6) months from the date thereof.

5. The Plaintiffs shall have costs of the suit and interest.

Orders accordingly.

Dated and signed on the 13th day of July 2017 at Mombasa.

L. KOMINGOI

JUDGE

13/7/17

Judgment dated and delivered in open Court on the 13th day of July 2017 in the present of Ms. Maina for Mr. Shimaka for the Plaintiffs and the Court assistant Koitamet.

L. KOMINGOI

JUDGE

13/7/17