[2019] KEELC 2606 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC NO. 660 OF 2017

(FORMERLY MILIMANI ELC 1138 OF 2016)

MARY NJERI NGAHU...............................................PLAINTIFF

VERSUS

JAMES KANUI NJOERA.................................1ST DEFENDANT

JAMES NDUA NJOERA..................................2ND DEFENDANT

JUDGMENT

By a Plaint dated 13th September 2016, the Plaintiff herein brought a suit against the Defendants jointly and severally for the following orders;

a) A declaration that the registration of the Defendants as proprietors of land parcel Githunguri/Kimathi/565, was fraudulent hence void.

b) A declaration that the subsequent partitioning of land parcel Githunguri/Kimathi/565 was also void.

c) A temporary injunction to issue against the Defendants and their servants/agents restraining them from occupying, disposing off, selling, charging, subdividing or in any other way interfering with land parcel Githunguri/Kimathi/565 or other portions of land excised from, pending the hearing and determination of this suit.

d) A permanent injunction to issue against the Defendants and their servants /agents restraining them from occupying , disposing off, selling, charging, subdividing or in any other way interfering with land parcel Githunguri/Kimathi/565 or other portions of land excised from it.

e) An order cancelling all the registration of all the parcels of land excised from land parcel GITHUNGURI/KIMATHI/565.

f) Restoration of the register as it was before the Defendants’ fraudulent activities.

g) Costs of this suit.

h) Interest on (g) above at the Court rates.

In her statement of claim, the Plaintiff averred that the Defendants are her brothers and children of Njoera Gatumbi (deceased).She further averred that their father left a Willand made her an executor of his Estate. She then applied to Court for proof of probate of the said Will and on 28th April 1998, the Court duly granted the letters of proof of probate, she then applied for confirmation of the said grant vide Succession cause No. 279 of 1998 at Nairobi High Court and on 22nd November 2010, the Court confirmed the letters as per the deceased’s Will.

It was her contention that the mode of distribution of the suit property as per the said Will was;

- Mary Njeri Ngahu 2 acres,

- Benedicta Muria Njoera, 2 acres,

- Monica Njahi 0. 5 acres,

- James Ndua 0. 5 acres,

- John Ng’ethe 0. 5 acres,

- Ndua Njoera 0. 25 acres,

- Kanui Njoera 0. 25 acres.

Contrary to the above distribution, the Defendants on 11th March 2016, presented to the Kiambu Land Registrar documents purporting to be issued by the High Court in Succession No. 279 of 1998, and transferredto themselves the suit properties. They further fraudulently caused the land to be partitioned on 10th August 2016, in a manner not indicated in the said Will She particularized fraud by the Defendants as purporting to be the Administrators of the estate of the deceased, fraudulently presenting to the Kiambu Land Registrar documents of dubious origin, transferring the suit land to themselves using documents of dubious origin, partitioning the land without any lawful authority, purporting to distribute portions of the said land parcel without any authority and contrary to the terms of the written Will of the deceased.

She also averred that as a result of the fraudulent actions, she suffered loss of her rightful portion of the suit property as per the Will and the loss of the authority to distribute portions of the said land parcel without any authority and contrary to the term of the written Will of the deceased.

The suit is contested and the 1st Defendant herein filed an Undated Defence on 22nd June 2018,in which he denied the particulars of fraud stated in the Plaint and further denied being involved in the transfer of the suit property to his name and the 2nd Defendant .It was his contention that the signature that appeared on the mutation forms and other documents related in the transfer of the suit property is not his and averred that the 2nd Defendant acted alone as he had no knowledge of his dealings. He alleged that he has always been and is still willing to be cooperative and is ready to comply with any directions that will be given by the Court.

Despite being served with the suit Summons to Enter Appearance the 2nd Defendant failed do so nor file any Defence. The matter proceeded for hearing on the 26th of November 2018, wherein the Plaintiff gave evidence for herself and called no witness. The 1st Defendant also gave evidence for himself and called no witness.

PLAINTFF’S CASE

PW1 Mary Njeri Ngahu adopted her witness statement and testified that the defendants are her brothers. It was her testimony that her late father left a Will, setting out how his Estate would be distributed. However it was not followed as the Defendants defied it. She produced her list of documents as exhibits 1 to 8. She further testified that she did not know if the 2nd Defendant was issued with the letters of Administration and urged the Court to cancel the action of the Defendants.

On cross examination by the 1st Defendant, she testified that she did not know what he did with their brother but that he did not share the land as per their father’s wish. Further that he corroborated with the 2nd Defendant in forging documents.

1st DEFENDANT’S CASE

DW1 James Kanui Njoera testified that he was given land by his

father and denied the Plaintiff’s claim. He further testified that his brother James Ndua wrote his name in the transfer documents but denied being connected with him or knowing where he lives.

After close of viva voce evidence, the Court directed the parties to file written submissions to which the Court has now carefully read and considered.

The Court has also considered the pleadings, the evidence adduced by the parties and the exhibits thereto and renders itself as follows;-

Though the 1st Defendant entered appearance the 2nd Defendant failed to enter appearance and thereby defend the suit. This would therefore mean that the evidence of the Plaintiff as against the 2nd Defendant is unchallenged and uncontroverted .However, the Plaintiff is still required to prove her case against the Defendants on a balance of probability see the case of Shaneebal Limited…Vs…County Government of Machakos (2018)eKLR, where the Court cited the case of Karuru Munyororo…..Vs…Joseph Ndumia Murage & Another, Nyeri HCCC No.95 of 1988, where the Court held that:-

“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the Plaint and in the absence of the Defendant’s and or their Counsel to cross examine her on evidence, the Plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the Kind of evidence that a court of law should be able to act upon’’

Bearing in mind the 1st Defendant’s Defence and the fact that the Plaintiff had a duty to prove her case on the required standard, the Court finds the issues for determination are as follows:-

1. Whether the plaintiff has been able to prove her case against the Defendants.

2. Whether she is entitled to the orders sought.

1. Whether the Plaintiff has been able to prove her case against the Defendants

The Plaintiff has alleged that the Defendants forged documents that were presented to the Land Registrar Kiambu, and therefore resulting in the subdivision of the suit property contrary to the will of their deceased father. On the other hand the 1st Defendant has denied these allegations and alleged that the 2nd Defendant must have forged his signature and put his name on the documents. It is trite law that ‘whoever alleges must prove’. As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides:

‘’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.’’

The Plaintiff having alleged that the Defendants were part of the fraud that was committed, it was therefore incumbent upon her to prove the said allegations. The Plaintiff produced the Will left behind by her late Father. The said last Will showed how the land parcel No. Githunguri/Kimathi/565, was to be distributed. Infact the grant was confirmed on 22nd November 2010,as the Last Will by Njoera Gatumbi (deceased). However, another confirmed grant was presented to the Land Registrar Kiambu and the land parcel no. Githunguri/Kimathi/565, wasdistributed contrary to the last Will of Njoera Gathumbi(deceased). The presentation of the 2nd certificate of confirmation was fraudulent as it did not present the last wishes of Njoera Gatumbi (deceased). By production of the available exhibits, the Plaintiff has proved that indeed, the action of the Defendants was fraudulent and the said fraud has been proved. See the case of Koinange & 13 Others …Vs… Koinange [1986] KLR 23 it was held, inter alia, that;

a) It is a well-established rule of evidence that whosoever asserts a fact is under an obligation to prove it in order to succeed. The party alleging fraud had the burden of proving it and had to discharge that burden.

b) Allegations of fraud must be strictly proved and although the standard of proof may not be as to require proof beyond reasonable doubt, it ought to be more than on a balance of probabilities.

2. Whether she is entitled to the orders sought.

The 2nd Defendant did not file his Defence. However the 1st Defendant in his Defence stated that the actions herein were done by the 2ndDefendant. He further stated that his signature was forged and he was ready to abide by any of the Court orders given by the Court. Then if the2nd Defendant did not file his Defence and the 1st Defendant alleged that his signature was forged and most probably by the 2nd Defendant, the Court has a duty to interrogate the Plaintiff’s evidence and determine whether the same is merited to enable the Court come up with a logical conclusion as exparte evidence is not automatic prove of a case. ThePlaintiff has to discharge the burden of proof. See the case of Kenya Power & Lighting Company Limited… Vs…Nathan Karanja Gachoka & another [2016] eKLR, where the Courtstated:-

“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’

Further the case of Gichinga Kibutha…Vs…Carooline Nduku (2018) eKLR, where the Court held that:-

“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

The Plaintiff has alleged that she is the legal Representative of the Estate of the LateNjoera Gatumbiand has further produced letters of Administration to this effect. This fact is also not in doubt as the 1stDefendant confirmed it. She further accused the 2nd Defendant of fraudulently causing the subdivision of the suit property even though hewas not the Administrator of the suit property. The Court has further seen a mutation form evidencing the subdivisions and title deeds that emanated from the resultant subdivisions. Fraud has been definedin Blacks Laws Dictionary as;

“Fraud consists of some deceitful practice or wilful device,resorted to with intent to deprive another of his right, or in some manner to cause him an injury.’’

Further atPage 731 of the said Dictionary, fraud is also defined as:-

“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.’’

The Plaintiff being the Administrator of the Estate of the deceased was the only one with the right of administering the Estate of the deceased as provided bySection 83(f) of the Law of Succession Act, Cap 160 Laws of Kenyathat provides;

“subject to section 55, to distribute or to retain on trust (as the case may require) all assets remaining after payment of expenses and debts as provided by the preceding paragraphs of this section and the income therefrom, according to the respective beneficial interests therein under the will or on intestacy, as the case may be”

The Succession Act having bequeathed the Administrator with the duty of distributing the Estate of the deceased, it would therefore meanthat any other person who is not an Administrator taking up the role wouldbe equated to fraud. Further documentation has been produced before Court indicating other persons as Administrators and as confirmed by the 1st Defendant the only Administrator is the Plaintiff and this would further mean that there were misrepresentations made to the Land Registrar at Kiambu and the Surveyor that enabled them to okay the subdivision of land. The Court has already provided the definition of fraud and going by this definition coupled with the holding that the evidence as against the 2ndDefendant is uncontroverted and the fact that the 1st Defendant alleged that his signature was forged and he was not involved in the alleged fraud, the actions of the partitioning the suit property against the last Willof Njoera Gatumbi or by a person who is not the administrator of the estate was a fraudulent act and the subsequent result was therefore void.

The Plaintiff has sought for various orders amongst them the cancellation of registration of all the parcels of land that were excised from the suit property and the restoration of the register to what it was before the fraudulent acts of the Defendants. The Court has held and found that the subdivisions of the suit land was done due to misrepresentation and fraudulently and therefore the subdivision holds no water and must therefore be rectified. Section 80(1) of the Land Registration Act, provides that;

“Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”

The Court having been satisfied that there was Fraud involved in the subdivision of the suit property further finds that there is need for cancellation of the titles that were issued after subdivisions so that the lawful Administrator can perform her duties as required by law.Consequently the Court finds that the subdivisions of the deceased’sestate was done fraudulently and this Court has no option but to ordercancellation of the subsequent subdivisions and or partitions and cancellation of the acquired certificates of titles as provided by Section 80(1) of the Land Registration Act. Thereafter, the deceased estate to be distributed as per the Last Will left by the deceased and as per the Confirmed Grant issued by the Court on 22nd November 2010 and if any party is dissatisfied with the said Confirmed Grant can move the court in the said Succession matter.

The upshot of the foregoing is that the Plaintiff’s case is found to have been proved on the required standard of balance of probabilities. Consequently, the Court allows the Plaintiff’s claim in terms of the prayers sought in the Plaint except prayer No.(c) as it is now spent.

It is so ordered.

Dated, Signed and Delivered at Thika this 28th day ofJune 2019.

L. GACHERU

JUDGE

28/6/2019

In the presence of

Mrs Njuru Holding Brief for Mr. Muhoro for Plaintiff

1st Defendant present in person

2nd Defendant Absent

Lucy Court Assistant

Court- Judgment read in Open court

L. GACHERU

JUDGE

28/6/2019