[2022] KEELC 586 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT NAIROBI

ELC CASE NO.166 OF 2012

MARY NJERI KARIUKI...................................................................................PLAINTIFF

=VERSUS=

MARY WAMBUI KANYINGI................................................................1ST DEFENDANT

MARY WAMBUI NDUNGU..................................................................2ND DEFENDANT

ALICE WANGARI NJOROGE.............................................................3RD DEFENDANT

GEORGE KAGIRI KARIUKI................................................................4TH DEFENDANT

JUDGEMENT

1. By a the plaint dated 28th March 2012, the Plaintiff prays for judgment against the Defendant jointly and severally for orders:-

a) That the land registers of Githunguri/Kimathi 1856, 1857, 1858 and 1859 be cancelled forthwith and revert to L.R Githunguri/Kimathi/362 in the name of the deceased Paulina Gachambi Kariuki.

b) That the caution registered on 21st March 2005 be reinstated.

c) Costs.

2. The Plaintiff contended that LR Githunguri/Kimathi/362was registered in the name of her mother late Paulina Gachambi Kariuki as trustee for the herself, the Defendants and her three (3) deceased sisters namely; Hannah Wanjiku Kiriuki, Elizabeth Gathoni and Veronica Muthoni in equal shares by virtue of a certificate of succession dated 24th July 1981 from Githunguri District Magistrate’s court.

3. She further contended that on 21st March 2005, she placed a caution on the suit land barring any transfer or alienation of the land until a High Court case Number 457/2005 filed by her sister Hannah Wanjiku Kiriuki and herself against the deceased for transfer to herself and to her late sister Hannah Wanjiku Kariuki of 2. 2 acres of the suit land was determined.

4. It is her case that the Defendants unlawfully removed the aforementioned caution on or about 19th August 2008 on the ground that there was a decree dated 28th February 2007 issued by the Deputy Registrar, Nairobi, who ordered its removal which was false. She stated that on 10th March 2011, the Defendants further caused the suit land to be transferred and subdivided amongst themselves thus circumventing the provisions of the Law of Succession Act as the deceased had died on 15th March 2011, fifty-five (55) days earlier.

The Defendant’s case

5. The Defendants entered appearance through the memorandum of appearance dated 14th May 2012. They filed the statement of defence dated 28th May 2012.

6. They contended that the late Paulina Gachambi Kariuki was never registered as a trustee of the suit property but instead, she was the registered absolute owner of the suit land. They further contended that the deceased voluntarily and legally on 22nd October 2008 obtained a land control board consent to transfer the suit land to the Defendants, executed the requisite transfers and gifted them the suit land which they held and transferred to themselves on 10th May 2011 upon payment of stamp duty.

7. They contended that the Plaintiff filed Tribunal Case No. No.16/20/34/2004 against the deceased claiming a share of the suit land but the Tribunal found that the deceased should still have the title in her name and ordered the restriction placed by the Plaintiff to be removed. They further contended that the Tribunal’s judgment was adopted on 27th January 2006 as an order of the court and a decree was issued on 28th February 2007. The caution entered by the Plaintiff was removed pursuant to the decree.

The Plaintiff’s evidence

8. PW1, Maria Njeri Kariuki, the Plaintiff adopted her witness statement dated 28th March 2012 and a further statement dated 13th January 2020 as part of her evidence in Chief. She told the court that she has sued the 1st to 3rd Defendants who are her late brothers’ wives and the 4th Defendant who is her brother for subdividing the suit land which was her late father’s land without giving her a share. It was her testimony that though the land was in her late mother’s name, her late father had directed that all his nine (9) children should benefit. She stated that they went to court and through succession proceedings they agreed that their late mother Paulina Kariuki should be the Administratix and she should sub-divide the suit land to all of them but by the time of her death on 15th March 2011, she had not sub-divided the land and after her death, they did not go through succession proceedings.

9. She told the court that she had placed a caution on the suit land but the Defendants applied to have it removed and she was not notified by Kiambu Land Registry. She stated that the suit land was then subdivided into 4 parcels measuring 21/2 acres where the 1st defendant got 1856, 2nd Defendant got 1857, 3rd Defendant got 1858 and 4th Defendant got 1859 while she was not given a portion of the suit land. She further stated that her other siblings namely Wambui, Hannah Wanjiku, Veronica Muthoni, Teresiah Wangui are all deceased. She told the court that she is claiming 1. 3acres of her father’s land since the land was to be shared equally among the nine (9) children of her late father.

10. When cross-examined, she stated that her father died on 11th November 1971. When referred to the certificate of succession which indicates that her late mother held the suit land solely, she stated that she held it as a trustee. She also stated that she did not appeal against the said court decision.

11. She stated that that the dispute between her and her mother over her share of the suit property was handled by the District Officer Githunguri, and the then Chief; Ngewa location who referred them to the Lands Disputes Tribunal where an award was made but she did not appeal against it.

12. She stated that she filed HCCA No 69/2006 and HCCCNO.457/2005 which is consolidated with this suit. She also stated that the Defendants used a decree that was not genuine to remove a caution that she had placed on the suit land. She denied having been given alternative land by her mother in Juja and stated that she is not aware of her mother’s intention to subdivide the suit land to only four (4) persons. She stated that her mother did not sign the Transfer forms willingly and even though she has no orders preventing her late mother from transferring the land, she prays that the decision of the Tribunal be set aside.

13. When re-examined, she stated that her late mother was registered solely but she was to subdivide the land willingly among her 9 children as per their father’s wishes, but she did not get her share. She stated that she sued the Defendants since they took her father’s land and they removed a caution from the suit property using a fake decree. She added that the consent dated 22nd October 2008 and the transfer dated 4th April 2010 were signed after her mother’s death and she is entitled to 1. 1 acres of her father’s land.

The Defendants’ evidence

14. DW1, George Kagiri Kariuki, testified on 20th April 2021. He is the 4th Defendant. He told the court that when their father died in 1971, his late mother petitioned for letters of administration and a certificate of succession was issued on 24th July 1981 which is the same as a certificate of confirmation of grant. He stated that the suit land was inherited by their late mother solely and the certificate does not state that she was a trustee and it does not mention any of her children. He further stated that the Plaintiff did not appeal against the certificate of succession.

15. It was his testimony that on 8th December 1999, his late mother signed an affidavit indicating that she wanted the suit land subdivided, prompting the Plaintiff to complain to the District Officer Githunguri and the Chief about her late mother’s wishes. He stated that the dispute was referred to Githunguri Land Disputes Tribunal which found that the Late Paulina Gachambi Kariuki was properly registered as owner of the suit land therefore restrictions placed by the claimants should be removed.

16. He also stated that since the Plaintiff did not appeal against the Tribunal’s award, it was adopted by Githunguri Magistrate’s court on 2nd January 2006 and an order was issued on 16th March 2006. He stated that Plaintiff appealed against the judgement of the Magistrate’s court on 6th September 2006. On 21st May 2005, she filed HCCC 457 OF 2005 against their mother. He added that both suits are still pending.

17. He told the court that while the matter was at Githunguri Magistrate’s court, they sought a decree but the file was sent to the High Court(Appeal’s division) and a decree signed by the deputy registrar High Court on 27th February 2007 and they got a letter from their advocates to present to the land registrar and the decree was entered on the land register ,the caution was removed and the said decree has not been set aside.

18. It was his testimony that their mother allowed them to subdivide the suit land upon getting consent from Githunguri Land Control Board on 20th October 2008 and the said consents have never been nullified. He added that they accompanied their mother to the Land Control Board and on 22nd October 2008. She signed the Transfers dated 4th April 2010. The same were registered on 10th May 2011. He stated that their mother passed on 15th March 2011.

19. It was his testimony that they could have registered the Transfers earlier but when they presented the transfers at the registry, they were told to pay stamp duty and it took them a bit of time to find money. He added that was the reason for the delay in registering the Transfers but once they got enough money, they registered them on 10th May 2011. They were subsequently issued with Title deeds.

20. He stated that the Plaintiff has not filed succession proceedings in the High Court in respect of their mothers’ estate. He also stated that they are nine (9) siblings and only 3 of them disputed their mother’s wishes.

21. He told the court that they were summoned to CID Kiambu on 15th December 2011 where they recorded statements and presented their documents but they have never been charged with any offence of forgery as they did not commit any offence in obtaining the documents. He stated that his late mother bought land for the Plaintiff but she filed many suits to frustrate the Defendants. He asked the court to dismiss the Plaintiff’s case.

22. When cross-examined, he told the court that the land was originally registered in their father’s name, Kariuki Kabere and at the Magistrate’s court, it was agreed that their late mother should be registered as the owner. He stated that the Plaintiff was present at the Magistrate’s court when they agreed and that she is aware that a certificate was issued in the name of their mother as the absolute the owner of the land. He stated that he could not recall if all the children of Kariuki Kabere were listed as beneficiaries.

23. He stated that there was no evidence in court that they signed such a consent that their mother be registered as the owner. He further stated that he agrees that the Plaintiff is entitled to the share of their fathers’ estate but their late mother gave her land in Juja. He stated that the suit property was the only subject of succession in Githunguri court.

24. He stated that the original decree bears the seal of the court. When referred to the Transfer signed on 4th April 2010 yet his mother died on 15th March 2011, he stated that their Advocates presented the transfer earlier for registration but they did not have the money to pay stamp duty. He stated that they did not back date the transfer, it was witnessed by Esther W. Gitau Advocate on 4th October 2010.

25. He stated that he has nothing to show about the current status of the cases filed by the Plaintiff but they are still pending. He denied that he had intentionally denied the Plaintiff the right to inherit her father’s property and stated that their mother was given the suit absolutely with the consent of her children while the Plaintiff was given alternative land.

26. When reexamined, he stated that he is not familiar with the law of succession in 1981 and that his mother inherited his father’s land and it was never challenged.

27. At the close of the oral testimonies, parties tendered written submissions.

The Plaintiff’s submissions

28. They are dated 2nd June 2021. Counsel for the Plaintiff framed the following issues for determination:-

a) Whether the removal of the caution placed on Land Parcel No.Githunguri/Kimathi/362 was fraudulent, irregular, unlawfull and unprocedural?

b) Whether the transfer of the subdivisons in respect of Land Parcel No.Githunguri/Kimathi/362 was irregular,unlawful and taineted with fraud.

c) Whether the Defendants’ titles of the suit land should be cancelled and the same revert to the original owner.

d) Who should bear costs of the suit?

29. Counsel submitted that the Land Disputes Tribunal, Githunguri on 16th December 2004 recommended the removal of the restriction placed on the suit land by the Plaintiff but not the caution which was registered against the property on 21st March 2005.

30. He submitted further that according to Section 7 of the Land Disputes Act(repealed),the Chairman of the Tribunal would cause the decision of the tribunal to be filed in the Magistrate’s court and upon judgement, a decree would be issued by the Magistrate’s court and not the Deputy registrar as was in this case thus the caution was not properly lifted in line with Section 7 Of the Land Disputes Tribunal Act.

31. He submitted that the Defendants have been directly involved in the fraudulent transfer of the suit land into their names after subdivision which was a consequence of the removal of the caution placed on the suit property by the Plaintiff and their intention was to deprive the Plaintiff her rightful share of the suit land. He beseeched the court to cancel the Defendant’s titles of the suit land for being issued when the owner was deceased.

The Defendant’s submissions.

32. They are dated 20th September 2021. Counsel for the Defendant framed the following issues for determination:-

a) Whether the suit is res judicata and an abuse of the court process.

b) Whether the decree dated 28th February 2007 was fake.

c) Whether the removal of the caution was fraudulent.

d) Whether the transfer of the suit land to the Defendants was fraudulent.

e) Whether the Defendants circumvented the law of succession.

33. On the issue of re-judicata, Counsel for the Defendants submitted that since the late Paulina Gachambi Kariuki was granted the land solely by a succession court, then the issue of the Plaintiff’s interest based on being the daughter of her father was concluded and it is res judicata and as such it cannot be raised without re-opening the succession proceedings.

34. He further submitted that the Plaintiff’s claim for a share of the suit land against her mother was also dismissed by the Land Disputes Tribunal in LND/16/34/2004 at the Githunguri Lands dispute Tribunal. He added that the Plaintiff did not appeal against the decision and the award was adopted as a judgement of the Magistrate’s court thus rendering the Plaintiff’s claim res-judicata. He further submitted that the Plaintiff’s appeal against the Magistrate’s court adoption of the Tribunal’s decision filed in Nairobi High Court Appeal No.69 of 2006 abated in 2011 following Paulina Gachambi Kariuki’s death in 2010. It was his submission that the Plaintiff’s claim in HCC No.457 of 2015 against her mother was also res-judicata and in any case it abated, thus this suit should be dismissed for gross abuse of the court process.

35. He submitted that the decree dated 28th February 2007 was issued in HCCA No.69 of 2006 thus it was not a forgery as alleged by the Plaintiff who failed to prove the alleged fraud. He added that there was nothing unlawful against removal of the caution as it was removed pursuant to the court order issued in HCCA No.69 of 2006.

36. He submitted that the late Paulina Gachambi Kariuki signed the transfer during her lifetime and there is no requirement for the transferor to be alive at the time of registration.

37. He also submitted that the Defendants did not circumvent the law of succession since the suit land is not part of the estate of the late Paulina Gachambi Kariuki for purposes of succession as she had already bequeathed it to the Defendants during her lifetime. He added that this court has no jurisdiction to determine the issue of what constitutes the estate of a deceased person.

38. I have considered the pleadings and the evidence on record. I have also considered the written submissions filed on behalf of the parties and the authorities cited. The issues for determination are:-

(i) Whether this suit is res judicata.

(ii) Whether the Transfers by the late Paulina Gachambi Kairuki were procedural.

(iii) Was the caution registered on 21st May 2005 removed procedurally.

(iv) Is the Plaintiff entitled to the reliefs sought?

(v) Who should bear costs of this suit?

39. It is not in dispute that the Plaintiff and the 4th Defendant are brother and sister. The 1st, 2nd and 3rd defendants are sisters in law to the Plaintiff by virtue of having been married to the Plaintiff’s late brothers. In essence the parties herein are all children of Paulina Gachambi Kariuki who passed on, on 15th March 2011.

40. The original suit property LR NO Githunguri/Kimathi/362 was registered in the name of Kariuki Kabeere. He died on 16th November 1971. Upon his demise, his widow Paulina Gachambi Kariuki petitioned for letters of administration and a certificate of succession was issued to her on 24th July 1981. Consequently, she became the registered owner of LR NO Githunguri/Kimathi/362. The Certificate of Succession issued on 24th July 1981 shows that Paulina Gachambi was registered as the sole owner of LR No Githunguri/Kimathi 362.

41. It appears that the Plaintiff started pursuing her claim for a share of the suit property in 2004. She stated that she did so when it became apparent that her mother Paulina Gachambi Kariuki was not going to give her a share of the suit property. She made a complaint to the area District Officer who referred her to the area Chief Ngewa Location. The chief convened a meeting with four elders in a bid to hear the dispute. They decided to refer the dispute to Githunguri Land Disputes Tribunal. The elder’s award was in favour of the late Pauline Gachambi Kariuki.

42. The Plaintiff admitted that she did not file an appeal against the said award. The award was adopted by Githunguri Magistrate’s court on 16th March 2006 vide Tribunal Case NO 6 of 2005. The matter was referred to the High Court and a decree was issued by the Deputy Registrar on 28th February 2007. By virtue of this decree the restriction that had been placed by the claimant on the title was removed.

43. It is on record that the Plaintiff and her late sister filed HCCC 457 of 2005 against their mother. She also filed High Court Civil Appeal No 69 of 2006. On the 19th August 2008, the late Paulina Gachambi Kairuki presented the Decree issued by the Deputy Registrar to the District Land Registrar Kiambu, who removed the restrictions registered against the register including the caution placed by the Plaintiff.

44. It appears that HCCC 457 of 2005 and HCCA 69 of 2006 both instituted by the Plaintiff herein are still pending.

45. It is the Defendants’ submission that this suit is res judicata. In the case of The Independent Electoral and Boundaries Commission v Maina Kiai & 5 others, [2017] eKLR the court of appeal held that:-

“ For the bar of res judicata to be effectively raised and upheld on account of a former suit, the following elements must be satisfied, as they are rendered not in disjunctive but conjunctive terms;

a) The suit or issue was directly and substantially in issue in the former suit.

b) That former suit was between the same parties or parties under whom they or any of them claim.

c) Those parties were litigating under the same title.

d) The issue was heard and finally determined in the former suit.

e) The court that formerly heard and determined the issue was competent to try the subsequent suit or the suit in which the issue is raised.”

I find that this suit is not res judicata.

46. Upon presenting a decree from the High Court all restrictions on the title were removed by the Land Registrar, Kiambu Land Registry, the deceased applied to the Githunguri Land Control Board for consent to transfer the suit property by way of a gift to the Defendants. The consent to transfer was given on 22nd October 2008. Upon getting the consent the deceased executed the transfers in favour of the Defendants. The same are dated 4th April 2010. The said Transfer is witnessed by Esther W. Gitau Advocate. The Deceased thumb printed on the Transfers and photograph was affixed.

47. The Plaintiff does not dispute that the deceased obtained consent to transfer. She claimed that her mother did not sign the transfer willingly but she did not tender any evidence to support her claim.

48. DW4 George Kagiri Kariuki has explained the delay in registering the document. The reason is that the stamp duty was assessed at Kshs.100,000/-. They did not have this money so the transfer could not be registered on 4th April 2010. That it took time for them to get the money and the transfers were eventually registered on 10th May 2011. The deceased died on 15th March 2011. She had already executed the transfers. Equity treats that which ought to be done as done. By all intents and purposes the deceased intended to transfer the suit property to the four Defendants. The transfers were validly executed.

49. The Plaintiff claims the Transfers were done fraudulently. I find that she failed to adduce evidence to show that the said Transfers were fraudulent or that the Defendants used forged documents. It now well settled law that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt as was held in Arthi Highway Developers Ltd vs West End Butchery Ltd & 6 Others [2015] e KLR where the court stated that:-

“It is common ground that fraud is a serious accusation which procedurally has to be pleaded and proved to a standard above a balance of probabilities but not beyond reasonable doubt. One of the authorities produced before us has this passage from Bullen & Leake & Jacobs Precedent of pleadings 13th Edition at page 427:-

“Where fraud is intended to be charged, there must be a clear and distinct allegations of fraud upon the pleadings, and though it is not necessary that the word fraud should be used the facts must be so stated as to show distinctly that fraud is charged (willing ford v Mutual Society [1880] 5 APP Case 685 at 697 701, 709, Garden Neptune v Occident [1989] 1 Lloyd’s Rep.305, 308).

The statement of claim must contain precise and full allegations of facts and circumstances leading to the reasonable inference that the fraud was the cause of the loss complained of (see) Lawrence vs Lord Norreifs (1880) 15 App Case 210 at 221). It is not allowed to leave fraud to be inferred from the facts pleaded and accordingly, fraudulent conduct must be distinctly alleged and as distinctly proved (Davy V Garrett (1878) 7 Ch.D 473 at 489) “General allegations, however strong may be the words in which they are stated, are insufficient to amount to an averment of fraud of which any court ought to take notice.”

50. The Plaintiff herself was gifted some parcels by her late mother. By a letter dated 4th August 1981 from Juja Farms 1976 Limited the Plaintiff was given share No 2566. Similarly, in a declaration dated 8th December 1999 Paulina Gachambi Kariuki bequeathed LR NO Githunguri/Kimathi/173 to the Plaintiff and her three brothers. The said declaration was witnessed by E. K. Mutua advocate.

51. The Plaintiff has not denied that she was given this property. She has failed to prove that she was entitled to a bigger share over and above her other siblings.

52. I find that the transfers to the Defendants were procedural. Similarly, I find that the caution was removed procedurally as per the Decree, that any restrictions by the claimant be removed. The Plaintiff did not tender any evidence to prove that the Decree was not genuine.

53. I find the late Paulina Gachambi Kariuki transferred the suit property willingly to the four Defendants. Before the transfer she did not hold the land in trust for the Plaintiff and her siblings. If fact the Plaintiff did not seek a declaration that the Deceased be found to have held the suit property in trust for her and her siblings. Parties are bound by their pleadings. The Certificate of Succession confirms that the said Paulina was registered as the sole proprietor of the suit property.

54. I agree with the Defendants’ submissions that the deceased made a gift inter vivos to the Defendants. She obtained the requisite consent from the Land Control Board and executed valid Transfers. The suit property could not therefore form part of her estate as it was no longer available for distribution.

55. In conclusion, I find that the Plaintiff has failed to prove her case as against the Defendants on a balance of probabilities. The same is hereby dismissed. As this is a matter involving family members I order each party to bear own costs.

It is so ordered.

DATED, SIGNED AND DELIVERED NAIROBITHIS 24TH DAY OF MARCH 2022.

..........................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Mitiambo for the Plaintiff

Mr. Gichigi for the Defendants

Steve - Court Assistant