[2024] KEELC 305 (KLR)

Kiboko Products Limited v Lulei; Mogesi & 6 others (Defendant to the Counterclaim) (Environment & Land Case E002 of 2021) [2024] KEELC 305 (KLR) (16 January 2024) (Judgment)

Neutral citation: [2024] KEELC 305 (KLR)

Republic of Kenya

In the Environment and Land Court at Kilgoris

Environment & Land Case E002 of 2021

EM Washe, J

January 16, 2024

Between

Kiboko Products Limited

Plaintiff

and

Gilbert Lulei

Defendant

and

Anthony Keriga Mogesi

Defendant to the Counterclaim

Justus Musiria Nyangau

Defendant to the Counterclaim

Isaac Makaye Bigoro

Defendant to the Counterclaim

Karuna Leshan

Defendant to the Counterclaim

Kiboko Products Limited

Defendant to the Counterclaim

The Land Registrar, Transmara West District

Defendant to the Counterclaim

The Honourable Attorney General

Defendant to the Counterclaim

Judgment

1. The Plaintiff herein filed a Plaint on the 15th of September 2021 (hereinafter referred to as “the present suit”) against the Defendant seeking for the following Orders; -a.A declaration that the Plaintiff is the lawful owner and proprietor of parcel L.R Transmara/moyoi/1850 (hereinafter referred to as “the suit property”).b.A permanent injunction restraining the Defendant by himself, his agents, servants, people claiming under him from trespassing onto, remaining onto, interring remains there upon, selling, transferring or interfering with the or dealing in any manner whatsoever with the suit property known as L.R.NO.Transmara/moyoi/1850. c.Costs of the suit.d.Interest on (iii) above at Court rates.

2. The suit brought by the Plaintiff was duly served on the Defendant who filed the first Statement of Defence on the 24th of November 2021 but amended the same with leave of this Honourable Court on the 21st of June 2022.

3. In the Amended Statement of Defence & Counter-Claim dated 21st of June 2022, the Defendant filed a Counter Claim against the 1st to 6th Defendants to the Counter- Claim also seeking for the following Orders; -a.An order of eviction against the Plaintiff (5th Defendant in the Counter-claim), its agents and/or servants from the suit property.b.A permanent injunction restraining the Plaintiff (5th Defendant in the Counter-Claim) either by himself, agents and/or servants from entering upon, trespassing onto, building further structures thereon, alienating, selling, transferring and/or otherwise interfering with the suit property whatsoever and howsoever.c.General damages for trespass together with interest thereon at court rates of 14 % from the date of judgement.d.Costs of the cross suit be borne by the Plaintiff (5th Defendant in the Counter-Claim).e.Such further and/or other reliefs as the Honourable Court may deem fit and expedient.

4. The Plaintiff (5th Defendant in the Counter-Claim) filed a Reply to the Amended Statement of Defence and a Defence to the Counter-Claim on the 30th of January 2023 and sought to have the Counter- Claim dismissed in its entirety with costs.

5. At the end of filing the pleadings, the matter was certified to be ready for hearing and the same commenced on 22. 02. 2023.

Plaintiff’s Testimony & Evidence 6. The Plaintiff’s case began with the testimony of one Stephen Kihumba Chege(PW1) who introduced himself as the group operations manager of the Plaintiff.

7. PW 1 referred the Honourable Court to his witness statement dated 14. 09. 2021 and sought to adopt the same as his evidence in chief.

8. PW 1 informed the Honourable Court that in the year 2018, the Plaintiff sought to purchase portions of land within Transmara for their own growth.

9. During this time, the suit property was identified as one which was suitable for purchase by the Plaintiff.

10. The suit property was measuring approximately 19. 21 Hectares and was vacant.

11. PW 1 the produced a Sketch Map of the suit property (Plaintiff Exhibit 1) showing the extent of the acreage.

12. PW 1 informed the Honourable Court that at the time of inspecting the suit property, the same had not been sub-divided and/or occupied by any person.

13. The Plaintiff being satisfied with the status of the ground inspection of the suit property proceeded to undertake due diligence on the same.

14. The first step the Plaintiff undertook was to confirm if the suit property was within a gazetted forest land which would make it a public land from the Kenya Forest Department.

15. The letter written to the Kenya forest Department dated 18. 02. 2019 (Plaintiff Exhibit 2) was then produced before the Honourable Court.

16. The Plaintiff informed the Honourable Court that at the time of expressing interest to purchase the suit property, other parcels of land had also been identified as potential properties for purchase but ultimately found to have been occupied and/or having graveyards and therefore not suitable.

17. PW 1 then produced a Letter dated 15. 02. 2019 to the firm of Messrs Leina Morintat (Plaintiff’s Exhibit 3) expressing their intention not to purchase the properties that were occupied and/or had graveyards.

18. The Plaintiff having satisfied themselves as to the ground status of the suit property proceeded to undertake a search of the true ownership from the offices of the Lands Department at Kilgoris.

19. PW 1 then produced an Official Search from the District Land Registry, Kilgoris dated 01. 03. 2018 (Plaintiff Exhibit 4) which indicated the registered owner of the suit property to be one Karuna Leshan.

20. Based on the contents of the official search dated 01. 03. 2018, the Plaintiff then negotiated with the registered owner of the suit property and an Agreement For Sale was duly executed on the 25. 02. 2019 and the same was produced before this Honourable Court as (Plaintiff’s Exhibit 5. )

21. The suit property being on a freehold title, the Vendor was required to obtain a Land Control Board consent before the preparation and registration of the Transfer instruments in favour of the Plaintiff who was a purchaser.

22. The said Consent from the Land Control Board was therefore duly applied for and the same granted on the 18/09/2019 and produced as (Plaintiff Exhibit 6. )

23. Thereafter, the Vendor and the Plaintiff prepared and executed the relevant Transfer Instrument which was produced as (Plaintiff Exhibit 7. )

24. In support of the Transfer Instrument executed by the Vendor and the Plaintiff relating to the suit property, PW 1 also produced a Spousal Consent from the Vendor’s wife as (Plaintiff Exhibit 8) thereof.

25. The copies of the Vendor’s Kenyan Identification Card were produced as “Plaintiff’s Exhibit 9”.

26. PW 1 then produced the Application For Registration of the suit property, a copy of the Payment Receipt and the new Title Deed issued on the 23. 07. 2020 as (Plaintiff’s Exhibits 10,11 and 12 respectively.)

27. Lastly, PW 1 produced an official search dated 23. 07. 2020 (Plaintiff’s Exhibit 13) confirming that the suit property had now been registered in the name of the Plaintiff.

28. As regards the Green Card of the suit property relied upon by the Defendant, PW 1 confirmed that indeed the name of the Vendor who sold them the suit property was on the Green Card under an entry dated 19/10/2017.

29. According to the Green Card, the Vendor was the registered owner of the entire 19. 21 Hectares of the suit property.

30. PW 1 pointed out to the Honourable Court that the Defendant has never been registered as an owner of the suit property according to the Green Card.

31. On cross-examination, PW 1 reiterated that he personally visited the ground of the suit property and the same was vacant.

32. PW 1 further stated that so far, there is no evidence produced by the Defendant by either pictures and/or otherwise to show occupation.

33. PW 1 testified that during the due diligence, he did not seek for a copy of the Green Card but only undertook an official search of who was the registered owner.

34. PW 1 admitted that in the Green Card, the suit property had previously been owned by other persons who he is familiar with two of them namely Doctor Antony Kerige and Justus Musia Nyangau.

35. PW 1 informed the Honourable Court that during the transaction, the Plaintiff did not seek to know how the Vendor had acquired the suit property.

36. PW 1 however confirmed that Entry No 2 in the Green Card was for one Lulei Ole Mpaapa entered on the 20. 05. 2011.

37. The person known as Lulei Ole Mpaapa is the father of the Defendant in this suit.

38. PW 1 stated that upon the demise of Lulei Ole Mpaapa, the Defendant sought to bury him on the suit property but the same did not happen due to a Court order.

39. In re-examination, PW 1 confirmed that he was familiar with Dr.Antony Keriga and Justus Nyangau because there were owners of other properties which the Plaintiff had expressed an interest to purchase.

40. As regards the suit property, PW 1 informed the Honourable Court that ground visits were undertaken and there was no occupation or claims from any third parties over the suit property.

41. The only time the Plaintiff became aware of the Defendant’s claim was after the demise of the Defendant’s father in the year 2021 and the intention to bury him on the suit property which was not his.

42. At the end of this re-examination, the Plaintiff closed their case.

Defendant’s (counter-clamer) Testimony & Evidence. 43. The Defendant (DW1) also attended Court on the 22. 03. 2023 to testify in support of his case.

44. DW 1 denied any knowledge as to why he had been sued by the Plaintiff herein.

45. According to DW 1, the dispute relating to the suit property had emanated after his father passed away in the year 2021.

46. During this time, the family started planning to bury the late Lulei Ole Mpaapa on the suit property but the said arrangements were stopped by a Court Order.

47. DW 1 testified that the suit property had been allocated to the late Lulei Ole Mpaapa who was his father by Moyoi Group Ranch.

48. DW 1 the produced a certified copy of the Green Card of the suit property (Defence Exhibit 1).

49. DW 1 confirmed that his late father had been registered as the owner and took possession of the same.

50. DW 1 indicated that after being served with the Court Order, his late father Lulei Ole Mpaapa was buried at the brother’s home.

51. Thereafter, the family of the late Lulei Ole Mpaapa began investigating on how the suit property was transferred to the Plaintiff without the authority of their deceased father Lulei Ole Mpaapa.

52. This investigation necessitated the application for an official search which was undertaken on 24. 07. 2020 and produced as (Defence Exhibit 2).

53. According to the Defence Exhibit 2, the suit property is currently registered in the name of the Plaintiff who is unknown to the Defendant and/or the family of the late Lulei Ole Mpaapa.

54. DW 1 further stated that there was no Transfer Form or any Agreement For Sale over the suit property that was executed by his late father Lulei Ole Mpaapa.

55. Consequently, DW 1 testimony was that any purported sale and/or transfer of the suit property from his deceased father’s name Lulei Ole Mpaapa to any third party was fraudulent and/or unlawful.

56. DW 1 in support of the Counter-Claim stated that all the names that appear in the Green Card of the suit property after his late father’s name Lulei Ole Mpaapa were not lawfully registered by the 6th Defendant.

57. DW 1 insisted that if his late father had indeed sold off the suit property, then the family would have been informed about the said disposition.

58. In reference to the Plaintiff’s Exhibit 7, DW 1 pointed out that the Transfer Form submitted before this Honourable Court did not have the name and/or picture of his late father Lulei Ole Mpaapa.

59. Similarly, the purported spouse of the Vendor known as Jessica Kageha was unknown to them as well.

60. DW 1 stated that the wife of the late Lulei Ole Mpaapa was one Priscillah N.nkoichoi.

61. In concluding his prosecution of the Counter-Claim, the Defendant sought for an order that the suit property be reverted back to the name of the late Lulei Ole Mpaapa who is the true owner of the same.

62. On cross-examination, DW 1 reiterated that the Transfer Form produced by the Plaintiff did not bear the names of his late father Lulei Ole Mpaapa.

63. DW 1 confirmed that his late father Lulei Ole Mpaapa was registered as the owner of the suit property on the 20. 05. 2011 but seemed to have transferred the same to the 1st Defendant in the Counter-Claim on the 21. 04. 2015.

64. Consequently therefore, DW 1 father’s interest over the suit property ceased on the same day 21. 04. 2015.

65. Referring to Defence Exhibit 2 which is an official search dated 24. 07. 2020, DW 1 admitted that the registered owner at this time was the Plaintiff herein.

66. DW 1 was of the opinion that if there was any fraudulent acts against his deceased father, then such acts must have been committed by the 1st Defendant in the Counter-Claim.

67. DW 1 reiterated that he had not seen any Transfer Forms executed by his late father LULEI OLE MPAAPA in favour of any third party but did not have any evidence to show that he asked for such evidence from the offices of the 6th Defendant in the Counter-Claim.

68. DW 1 confirmed that the size of the suit property was indeed 19. 218 Hectares.

69. DW 1 stated that if there was any Transfers Forms executed by his deceased father Lulei Ole Mpaapa in favour of any other party, then such Transfer Forms were forged and not genuine.

70. DW 1 confirmed to the Honourable Court that indeed, it was the family of the late Lulei Ole Mpaapa who were in occupation of the suit property.

71. However, DW 1 admitted that he had not produced any evidence by was of a photographs and/or other documents to confirm such occupation on the suit property.

72. In re-examination, DW 1 confirmed that he had sued the 1st Defendant but there was no response from him.

73. DW 1 stated that he had been unable to obtain copies of the Transfer documents which had been done by his deceased father Lulei Ole Mpaapa.

74. According to DW 1, the unavailability of the Transfer Documents is a clear indication that the same do not exist and/or if any exists, then the same were forged against the wishes of the late Lulei Ole Mpaapa.

75. At the close of the re-examination, DW 1 also emphasized that if the family of the late Lulei Ole Mpaapa was not in occupation, then there was no need for the Plaintiff to obtain an injunction to stop the burial of the late Lulei Ole Mpaapa on the suit property.

76. At the end of the Defendant (Counter-Claimer) testimony, the Honourable Court fixed a further hearing on 13. 06. 2023 for the 4th Defendant in the Counter-Claim who had entered appearance and filed a Statement of Defence on the 12. 06. 2023.

77. The hearing date of 13. 06. 2023 for the hearing of the 4th Defendant in the Counter-Claim was fixed by consent of all the parties.

78. However, on the 13. 06. 2023, neither the 4th Defendant in the Counter-Claim and/or his advocate was present in Court.

79. The Honourable Court through the Court Assistant contacted the Counsel for the 4th Defendant in the Counter-Claim by telephone but his response was that he is engaged in another suit in Kisii Law Court.

80. This feedback from the Counsel for the 4th Defendant in the Counter-Claim was construed to mean that that the 4th Defendant in the Counter-Claim was no longer interested in prosecuting their case and the Honourable Court proceeded to close their case.

81. Parties were thereafter directed to file their written submissions which were indeed filed and will be considered in the substantive judgement.

Issues & Determination. 82. The Honourable Court has indeed perused the pleadings by all the parties herein, the evidence adduced and the submissions in their totality and the issues for determination can be summarised as follows; -ISSUE NO.1- Is The Plaintiff’s Registration Over The Suit Property Lawful?ISSUE NO.2 – Was The Defendant’s Father’s Ownership Fraudulently Terminated?ISSUE NO.3 -Is The Plaintiff Entitled To The Prayers Sought In The Plaint?ISSUE NO.4- Is The Defendant(counter-claimer) Entitled To The Prayers Sought In The Counter-claim?ISSUE NO.5- Who Bears The Costs Of The Plaint & Counter-claim?

83. The issues for determination having been outlined hereinabove, the same will now be discussed hereinbelow.ISSUE NO.1- Is The Plaintiff’s Registration Over The Suit Property Lawful?

84. The first issue for determination is whether the Plaintiff acquired good title to the suit property which is the subject matter in this suit.

85. According to the pleadings, evidence and testimony of the Plaintiff, the suit property was purchased from one Karuna Leshan pursuant to an Agreement For Sale dated 25. 02. 2019 (Plaintiff Exhibit 5).

86. The ownership of the Vendor Karuna Leshan as the registered owner of the suit property had been confirmed through an official search dated 01. 03. 2018 (Plaintiff Exhibit 4).

87. According to the official Search dated 01. 03. 2018 (Plaintiff Exhibit 4), the Vendor Karuna Leshan had been registered as the owner of the suit property on the 17. 10. 2017.

88. The Certified Copy of the Green Card produced by the Defendant as Defence Exhibit 1 confirms that indeed, the Vendor Karuna Leshan was the registered owner of the suit property from the 17. 10. 2017.

89. In essence therefore, the Vendor known as Karuna Leshan as on 17. 10. 2017 was the legitimate and lawful owner of the suit property according to the Green Card produced by the Defendant and had the capacity and legal standing to enter into an Agreement For Sale with the Plaintiff herein.

90. The subsequent effect is that the Agreement For Sale for the suit property entered on the 25. 02. 2019 was undertaken by a Vendor who had the legal capacity and ownership to alienate the same to the Plaintiff based on the agreed terms and conditions.

91. The Plaintiff has further produced all the supporting documents obtained and used in the registration of the Transfer from the Vendor Karuna Leshan and themselves.

92. None of these documents have been contested by the Defendant including the Consent by the Land Control Board produced as Plaintiff’s Exhibit 6.

93. The Defendant in his Defence insists that the suit property belongs to his late father Lulei Ole Mpaapa.

94. Further to that, the Defendant states that the deceased family has and is still in occupation of the suit property.

95. Consequently therefore, the Plaintiff is a stranger to the suit property and if any proprietary interests were passed to him, then such interests are illegitimate and should be cancelled.

96. The Defendant produced a Green Card of the suit property as Defence Exhibit 1.

97. Indeed, the Green Card gives a chronology of the ownership of the suit property since its creation.

98. According to the Green Card, the Defendant’s late father Lulei Ole Mpaapa was registered as the owner of the suit property on 20. 05. 2011.

99. Thereafter, the ownership of the suit property was passed on to Antony Keriga Mogesi, Justus Musiria Nyangau And Isaac Makaye Bigoro on the 21. 04. 2015.

100. In other words, as on the 25. 02. 2019 when the Plaintiff purchased the suit property from the Karuna Leshan, the Defendant and/or his family did not have any registrable interest on the Green Card and/or under Section 24 of the Land Registration Act, No. 3 of 2012.

101. In conclusion thereof, this Honourable Court is of the considered opinion that the Plaintiff herein lawfully purchased the suit property from a person who had been registered as the lawful proprietor under Section 26 of the Land Registration Act, No. 3 of 2012 and therefore acquired proper and lawful ownership of the suit property as envisaged by law.ISSUE NO.2 – Was The Defendant’s Father’s Ownership Fraudulently Terminated?

102. The second issue has been raised in the Counter-Claim by the Defendant.

103. The Defendant in his Counter-Claim has pleaded that the cancellation of his deceased father’s Lulei Ole Mpaapa name in the Green Card and subsequent transfer to 1st to 3rd Defendants in the Counter-Claim is fraudulent and unlawful.

104. The Defendant (Counter-Claimer) has outlined a number of fraudulent acts and/or illegalities that were purportedly undertaken by the 1st to 6th Defendants jointly and severally to unlawfully cancel the name of the late Lulei Ole Mpaapa from the said Green Card.

105. The Defendant (Counter-Claimer) being the Plaintiff in the Counter-Claim is required to prove his case to the satisfaction of the Honourable Court.

106. The provisions of Section 107 and 108 of the Evidence Act, Cap 80 expressly place the burden of proof on the person who alleges.

107. Unfortunately, the Defendant (Counter-Claimer) did not provide any evidence during his testimony that pointed to the 1st to 6th Defendants either impersonating, forging and/or fraudulently alienating the Defendant’s deceased father’s property.

108. The Defendant (Counter-Claimer) did not place before the Honourable Court the original title deed issued to his deceased father Lulei Ole Mpaapa which is currently still valid to create a basis of the alleged forgery and/or fraudulent acts.

109. If indeed the Defendant’s father had not sold the suit property to any third party, then at least the Title Deed issued on the 20. 05. 2011 would still be intact and in their possession.

110. Further to that, the Defendant (Counter-Claimer) had the burden to present the alleged Forged Transfers from his deceased father’s name to the 1st to 3rd Defendants herein which were registered by the 6th Defendant.

111. By presenting this forged Transfers before the Honourable Court, there would be sufficient documents for evaluation and determination on whether or not the Defendants in the Counter-Claim indeed fraudulently and/or unlawfully alienated the Defendant’s deceased father’s rights over the suit property.

112. The failure either intentionally and otherwise to present the deceased title deed issued on the 20. 05. 2011 and/or the subsequent alleged forged Transfer Forms amounts to a failure in proving any acts of forgery and/or fraudulent actions by the 1st to 6th Defendants in the Counter-Claim.

113. In the event the Defendant had any challenges in securing these documents from the offices of the 6th Defendant, Order 16 Rule 6 and 7 of the Civil Procedure Rules, 2010 grants this Honourable Court powers to summon any person to produce any document and give evidence on the same.

114. However, the Defendant’s (Counter-Claimer’s) inaction to utilise this provision of law has not been in his favour.

115. In essence therefore, it is the Honourable Court’s considered view that the Defendant (Counter-Claimer) has not proved any of the particulars of fraud and/or illegalities against the 1st to 6th Defendant to the Counter-Claim as required by law.

116. Further to the above, the Defendant (Counter-Claimer) has described himself to be suing as a Legal Administrator of the Estate of Lulei Ole Mpaapa (Deceased).

117. The description which the Defendant (Counter-Claimer) adopts in the Counter-Claim is legally different and separate from that in the substantive Plaint.

118. In the substantive Plaint, the Defendant has been sued in his own capacity and not as a legal Administrator of the Estate of Lulei Ole Mpaapa.

119. In the Counter-Claim, the Defendant purports to be a Legal Administrator of the Estate of Lulei Ole Mpaapa.

120. For the Defendant to institute any legal proceedings on behalf of the estate of Lulei Ole Mpaapa, there is a legal requirement that he is to obtain letters of Administration Ad Litem.

121. No such Letters of Administration Ad Litem were ever produced by the Defendant (Counter-Claimer) in his pleadings and/or testimony before this Honourable Court.

122. In other words, the Defendant’s (Counter-Claimer’s) legal status to file and/or make any pleadings on behalf of the estate of Lulei Ole Mpaapa has not been also proved before this Honourable Court.

123. In essence therefore, the entire Counter-Claim filed on behalf of the Estate of Lulei Ole Mpaapa is irregular and unlawfully pleaded.ISSUE NO.3 -IS The Plaintiff Entitled To The Prayers Sought In The Plaint?

124. Based on the determination in issue No. 1 hereinabove, this Honourable Court is satisfied that the Plaintiff has proved his case and is entitled to the prayers sought in the Plaint.ISSUE NO.4- Is The Defendant(counter-claimer) Entitled To The Prayers Sought In The Counter-claim?

125. Based on the determination in Issue No. 2 hereinabove, this Honourable Court is of the considered view that the Defendant (Counter-Claimer) has not proved the fraudulent and/or illegalities pleaded against the 1st to 6th Defendant and the Counter-Claim therefore fails.ISSUE NO.5- Who Bears The Costs Of The Plaint & Counter-claim?

126. Costs usually follow the event and/or outcome of the proceedings.

127. In this proceeding, the Plaintiff has been successful in the prosecution of the main suit and the Defendant has not succeeded in prosecution of the Counter-Claim.

128. In other words, the Defendant will bear the costs of the substantive suit and the Counter-Claim.

Conclusion. 129. In conclusion therefore, the Honourable Court hereby makes the following Orders in determination of the Plaint and Counter-Claim in this suit; -A.A Declaration Be And Is Hereby Made To The Effect That The Plaintiff Kiboko Products Limited Is The Lawful Owner & Proprietor Of The Property Known As L.r.no.transmara/moyoi/1850. B.A Permanent Injunction Be And Is Hereby Issued Restraining The Defendant By Himself, His Agents, Servants, People Claiming Under Him From Trespassing Onto, Remaining Onto, Interring Remains There Upon, Selling, Transferring Or Interferring With The Or Dealing In Any Manner Whatsoever With That Suit Property Known As Transmara/moyoi/1850. C.The Counter-claim Filed On The 21St June 2023 Against The 1St To 7Th Defendants In The Counter-claim Is Dismissed.D.The Plaintiff Is Awarded The Costs Of The Substantive Suit And The Counterclaim Thereof.

DATED, SIGNED & DELIVERED VIRTUALLY IN KILGORIS ELC COURT ON 16TH JANUARY 2024. EMMANUEL.M.WASHEJUDGEIN THE PRESENCE OF:COURT ASSISTANT: MR. NGENOADVOCATES FOR THE PLAINTIFF: MS. AOKOADVOCATES FOR THE DEFENDANT: MS. MIRERI