[2019] KEELC 2670 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISUMU

ELC CASE NO. 131 OF 2012

MILLICENT PERPETUA ATIENO WANDIGA….....…..…..PLAINTIFF

VERSUS

VINIT SURESHBHAI PATEL……………………....…1ST DEFENDANT

MAYBEN SURESHGHAI PATEL…………………….2ND DEFENDANT

DISTRICT LAND REGISTRAR, KISUMU..…..…….3RD DEFENDANT

JUDGEMENT

1. Millicent Perpetua Atieno Wandiga, the Plaintiff, sued Vinit Sureshbhai Patel, Mayben Sureshbhai Patel and The District Land Registrar Kisumu, the Defendants, through the plaint dated the 11th December 2012 seeking for the following prayer;

(a) “A declaration that the transfers in favour of the 1st and 2nd Defendants were procured by fraud.

(b) An order that the title deed issued to the 1st and 2nd Defendants be recalled, cancelled and revoked on the basis that it was procured by fraud and outright illegality.

(c) That the Lands records/Register to be rectified and do read the Millicent Perpeture Atieno Wandiga as the rightful owner of land parcel number Kisumu Municipality/Block 10/78.

(d) That the house constructed illegally on land parcel number Kisumu Municipality/Block 10/78 be demolished and that an order of eviction be issued against the 1st and the 2nd Defendant.

(e) General exemplary and punitive damages for fraud and trespass.

(f) Costs of the suit.

(g) Any other or further orders this court may deem just and expedient to grant.”

The Plaintiff avers she was the registered owner of Kisumu Municipality/Block 10/78, the suit property, following the allotment by the Commissioner of Lands in 1978, and obtaining a lease in 1981. That the Plaintiff got to know when she saw a new development that the proprietorship of the suit property had changed without her knowledge to the 1st and 2nd Defendants’ names. The Plaintiff set out the particulars of fraud committed by the Defendants at paragraph 15 of the plaint as follows;

a) “Generally interfering with the official records and destroying the same to perpetuate a fraud against the Plaintiff.

b) Tampering with records at the Lands Registry to show that Plaintiff transferred the said land to 1st and 2nd Defendants and thereafter tempering with lands record to fraudulently transfer the said piece of land to the 1st and 2nd Defendants.

c) The 3rd Defendant conspiring with 1st and 2nd Defendants and fraudulently registering the land into the name of the 1st and 2nd Defendants without the knowledge and authority of the Plaintiff.

d) The 3rd Defendant knowingly using forged documents to register land parcel number Kisumu Municipality/Block 10/78 into the name of the 1st and 2nd Defendants.”

That she had also filed Kisumu No. 103 of 1990 against her neighbour, Saeed Rauf Samnakay, for trespass that is still pending in court. That the Defendants committed fraud by transferring the suit land from her name without involving her, and that she still has the original title documents issued to her in 1981.

2. The 1st and 2nd Defendants denied the Plaintiff’s claim vide their statement of defence and counterclaim dated 30th January 2013. They averred that on the 4th April 2011, they entered into an agreement with the then registered proprietor of the suit land Zainul S. Velji and Jadgip Bhagwandas Morporia for Kshs. 10,000,000/= without any notice of defect in their title, and are therefore purchasers for value without notice. That the Plaintiff’s suit is misconceived, untenable in law, abuse of the court process and an obstruction to the course of justice as the Plaintiff has not enjoined their successors in title, who had bought the suit land from the Plaintiff, hence concealing material facts. That the construction of the house on the suit property commenced in 2010 and was done openly for two (2) years without the Plaintiff lodging any complaints and is therefore guilty of laches and ineptitude. That as the Plaintiff had received Kshs. 2,200,000/= from the purchasers, she sold the suit properly and cannot allege fraud or damage and is therefore not entitled to any. They sought for the Plaintiff’s suit to be dismissed with costs.

3. The 1st and 2nd Defendants’ counterclaim is against the Attorney General. They aver that they had relied on the documents of title to the suit land issued by the 3rd Defendant as custodian of Land records. That they had paid the 3rd Defendant registration and search fees, in addition to stamp duty paid to the collector of stamp duty in the trust and honest belief that the documents were authentic. That should the court find any impropriety in the process leading to the registration of the suit land in their names, then the 3rd Defendant should compensate them for the purchase price paid of Kshs. 10,000,000/=, stamp duty of Kshs. 40,000/=, legal fees of Kshs. 200,000/= and incidental costs of Kshs. 20,000/= making a total of Kshs. 10,620,000/= and costs of the counterclaim.

4. The 3rd Defendant through the Litigation Counsel for the Attorney General filed their statement of defence dated the 27th May 2013 to the Plaintiff’s suit. The 3rd Defendant denied the particulars of fraud, that the Plaintiff had suffered damages and prayed for the suit to be dismissed with costs. They did not file any defence to the counterclaim by the 1st and 2nd Defendants.

5. The Plaintiff testified as PW1 that she was allocated the suit property through the letter of allotment dated 30th June 1978. That a lease was then issued on 1st July 1978 and certificate of lease on 14th September 1981. That she was renting out the plot and had placed some fencing posts and building materials on it. That in 2012 she went to pay rates and was issued with a receipt in the names of 1st and 2nd Defendants. She instructed an advocate who wrote to 1st and 2nd Defendants on the 29th August 2012 asking them to vacate from the plot and in default she would file suit. That they responded through their advocate seeking for copies of her documents vide the letter dated 11th September 2012. That she also had her advocate do a demand notice to the Attorney General dated 29th August 2012. That it is the Plaintiff’s testimony that she has the original title documents and had not transferred the suit land to the 1st and 2nd Defendants, and their title to the suit property must have been procured through fraud involving the 3rd Defendant.

6. That for the 1st and 2nd Defendants’ case, Zainul Velji and Neha Zureshbhai Patel testified as DW1 and DW2. DW1 testified that one Jagdip and himself sold the suit property to the 1st and 2nd Defendants for Kshs. 10,000,000/= which was paid to their bank on the 6th April 2011. That they had earlier bought the plot while undeveloped from the Plaintiff who had been introduced to them by one Barack, an estate agent. That after due diligence they entered into the sale agreement with the Plaintiff on 1st February 2010 and the purchase price was Kshs. 2,200,000/= which they paid in installments. That the first installment was Kshs. 300,000/= followed by Kshs. 50,000/= and lastly Kshs. 1,850,000/= which were all acknowledged. That they then registered the transfer and a certificate of lease dated 10th February 2010 was issued to them. That they then had their development plan approved and commenced without anybody raising any objections. The witness pointed out the Plaintiff who was in court as the person who sold him the suit property. DW2 told the court that the 1st and 2nd Defendants are her brother and late mother respectively. That the 1st Defendant is studying in Malaysia and had given her a power of attorney to testify in the matter. That the 2nd Defendant had passed on the 6th July 2013. She confirmed that the 1st and 2nd Defendants had bought the suit property from DW1 and another, and confirmed their signatures on the sale agreement. The 3rd defendant did not tender evidence.

7. That after the close of the oral evidence, Counsel for the parties were granted timelines to file and exchange written submissions. The learned Counsel for the Plaintiff and 1st & 2nd Defendants filed their submissions dated 3rd October 2018 and 3rd April 2019 respectively.

8. The following are the issues for the Court’s determinations;

a) Whether the acquisition of the suit property by the 1st and 2nd Defendants was fraudulent, illegal or unprocedural.

b) Whether the Plaintiff is entitled to the prayers or any of the prayers sought.

c) Whether the 1st and 2nd Defendants’ counterclaim should be granted.

d) Who pays the costs.

9. The Court has considered the pleadings by all parties, the oral and documentary evidence by PW1, DW1 and DW2, the written submissions by both Counsel, and the decisions cited therein and come to the following findings;

a) That though the 1st and 2nd Defendants appear to question whether the Plaintiff had ever owned the suit land, as she had paid the fees under the letter of allotment late and had not availed receipts for rent and rates payment in her name, the documentary evidence availed by both sides confirms that the Plaintiff was the first registered owner of the lease hold interest over the suit property. That the copy of the register of the suit property in the 1st and 2nd Defendants’ list of documents dated the 19th January 2018 confirms that the register was opened on the 31st August 1981 with the Plaintiff registered as the leasehold proprietor for 99 years from the 1st July 1978. That date of 1st July 1978 is also the date in the letter of allotment dated 30th June 1978, produced by the Plaintiff and through which she was allotted “Kisumu Municipality/Block/10/78”. That whether or not the Plaintiff complied with the letter of allotment requirement within the timelines set, or paid the rates and rent as they became due do not appear to have in any way stopped the Commissioner of Lands from proceeding to prepare and issue her with the lease dated 22nd January 1980, which was registered by the 3rd Defendant on the 31st August 1981 as confirmed by the copy she produced as exhibit.

b) That the Plaintiff confirmed through her witness statement dated 11th December 2012, filed with the plaint and in her evidence in court, that she had charged the title with Barclays Bank of Kenya for Kshs. 200,000/= which was later discharged. That however, the copy of the certificate of lease for the suit property which the Plaintiff produced as exhibit P3 does not have an entry about the certificate being issued or the charge being registered as is the norm or practice under the “Proprietorship Section.” That further, it does not carry the details of the charge and discharge of charge under the “Encumbrances Section” as would be expected. That the fact that the details set out above are missing leaves the court with doubts as to whether the copy of the certificate of lease produced as exhibit P3 by the Plaintiff was made from the original certificate of lease as alleged by the Plaintiff. That the copy of the certificate of lease of the suit property in the 1st and 2nd Defendants list of documents, which DW1 claimed he had received from the Plaintiff contains the details that have been noted missing in exhibit P3, on the date of issue of the Certificate of lease, charge and discharge of charge. That copy appears to have been made from the original that the Plaintiff must have used when obtaining the financial facility from Barclays Bank of Kenya on 3rd June 1992, as it shows the discharge was done on 22nd April 2003. That it also shows that the certificate of lease was reissued about four months later on the 25th August 2003.

c) That whereas the Plaintiff claimed not to have been involved in the transactions leading to the transfer of the suit land from her name, the 1st and 2nd Defendants pleaded in paragraphs 5, 6 and 10 of their defence and counterclaim that they had bought the said land from Zanul S. Velji and Jagdip Bhagwandas Morporia. That they also filed the witness statement of Barack Oguido with the defence. That in the testimony of Zainul S. Velji who testified as DW1, he mentioned Barack as the one who introduced the Plaintiff to him and Jagdip after which they transacted over the suit land at Kshs. 2,200,000/=. That the court agrees with the learned Counsel for the 1st and 2nd Defendants submissions that the Plaintiff did not challenge the events presented by DW1, including how she handed to them copies of the certificate of lease, national identity card and PIN certificate among others. That DW1 could remember the Plaintiff and actually pointed her out in the courtroom as the person who sold and transferred the suit land to him and Jagdip and her general demeanor throughout her testimony shows that she was a reliable witness. That had her testimony not have been true that the Plaintiff handed over to her the copies of the Identity Card and PIN certificate, and that she signed the transfer form that carries her photograph to their favour, the Plaintiff would have sued her or at least lodged criminal complaints against her and Jagdip with the Police or Directorate of Criminal Investigations.

d) That from the evidence of DW1, and the documentary evidence in the list of documents of the 1st and 2nd Defendants, there is no doubts that the 1st and 2nd Defendants did due diligence when buying the suit property from DW1, and Jagdip. That the 1st and 2nd Defendants are definitely purchasers for value without any notice of any defect in the title, and the testimony of DW1 confirms that fact. That had the 1st and 2nd Defendants’ title document to the suit land have had any defects, then the 3rd Defendant would have alluded to them in their statement of defence, in which they only disputed the Plaintiff’s claim.

e) That though the Plaintiff had pleaded fraud in the process the 1st and 2nd Defendants obtained title to the suit land in their names, she did not avail evidence to support the particulars set out. [See Kinyanjui Kamau vs George Kamau [2015] eKLR where the Court of Appeal held that “To succeed in the claim for fraud, the appellant needed to not only plead and particularize it, but also lay a basis by way of evidence, upon which the court would make a finding”]. That the Plaintiff’s claim that the signatures in the sale agreement, acknowledgments of payments and transfer form that bears her photograph, that they were not hers is not on its own evidence of fraud in view of the detailed evidence of DW1. That the Plaintiff should have availed expert witness to indeed confirm that the signatures thereon were not hers. That the totality of the evidence presented shows that the transaction between the Plaintiff, as the vendor, and Jagdip and DW1, as purchasers, over the suit property occurred. That transaction was not fraudulent, illegal or un-procedural. That as the said Jagdip and DW1 obtained good title, and have through the testimony of DW1 confirmed that they transferred their interest to the 1st and 2nd Defendants, then the later acquired the title to the suit property legally and procedurally, and therefore have good title free from fraud.

f) That the Plaintiff did not tender any evidence to show in which way the Defendants or any of them tampered with the suit land records. That there is also no evidence that she had ever applied for certificates or other documents over the suit property that were declined. That had that occurred, she would have availed copies of the applications and payments made thereof, or reply from the Land registrar on the matter.

g) That when DW2 was presented as a defence witness on the 24th January 2018 the Counsel for the parties were all present in court. The learned Counsel for the Plaintiff and the 3rd Defendant did not raise any objection to her testifying on behalf of the 1st Defendant on the strength of the power of attorney that is in the 1st and 2nd Defendants’ list of documents of 19th January 2018. That the objection later raised by the learned Counsel for the Plaintiff through their written submissions filed after close of parties cases is coming rather too late. That however, even if the testimony of DW2 was to be ignored, the court is of the view that it would not change or affect the defence case in view of the findings above.

10. That from the foregoing, the court finds that the Plaintiff has failed to prove her case to the standard required of a balance of probability. The Plaintiffs suit is therefore dismissed with costs. That in view of the foregoing order, the court do not find it necessary to make any pronouncement in respect of the 1st and 2nd Defendants’ counterclaim against the Attorney General.

Orders accordingly.

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE

DATED AND DELIVERED THIS 3RD DAY OF JULY 2019

In the presence of:

Plaintiff Absent

Defendants Absent

Counsel Mr. Arikho for Ngala Otieno for

Plaintiff and M/s Nawusugu for Otieno

for 1st & 2nd Defendants

S.M. KIBUNJA

ENVIRONMENT & LAND

JUDGE