[2023] KEELC 22102 (KLR)

Muinde v Muinde & 2 others (Environment & Land Case 82 of 2021) [2023] KEELC 22102 (KLR) (7 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22102 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 82 of 2021

CA Ochieng, J

December 7, 2023

Between

Simon Kathuli Muinde

Plaintiff

and

Stephen Muasa Muinde

1st Defendant

Mary Ndilu Mbalya

2nd Defendant

Elizabeth Kamene Muunda

3rd Defendant

Judgment

1. Through a Plaint dated the 31st August, 2021, the Plaintiff pray for judgment against the defendants for:a)A declaration that Land parcel No. Mavoko Town Block 3/3404 is an asset of the estate of the late Muinde Kathuli Kituto.b)A declaration that the defendants hold Title deed No. Mavoko Town Block 3/3404 as trustees for the Plaintiff.c)An order of rectification of the register by cancelling the Defendants' names from the register for land parcel No. Mavoko Town Block 3/3404 as the proprietors and be replaced with that of the Muinde Kathuli Kituto.d)A permanent injunction restraining the Defendants, their servants, agents and employees from interfering with the peaceful possession and occupation of the purchases of land parcel No. Mavoko Town Block 3/3404. e)Any further or other relief deemed just to grant by the Honourable Court.f)Cost and interest of the suit at court rates.

2. The Defendants’ filed their Statement of Defence dated the 24th November, 2021 where they denied the averments in the Plaint except the descriptive. They denied owning land parcel number Mavoko Town Block 3/7889 measuring ten (10) acres. They further denied that their father sold land parcel number Mavoko Town Block 3/3404 to third parties prior to his demise. Further, that the alleged purchasers occupy the land. The Defendants admit that they filed Machakos High Court Succession Cause No. 993 of 2009 wherein the 1st Defendant and Grace Munyiva Ndolo (now deceased) were issued with Letters of Administration. They explain that the deceased estate could not have been administered before substituting the late administrator and also distribution could not have been undertaken for most of the properties were distributed by the deceased prior to his demise. They contend that the estate of the deceased should not be redistributed and sought for refund of ten (10) acres and a plot measuring 50ft x 100 ft which the Plaintiff sold to the alleged purchasers. They aver that the purchasers should be evicted from land parcel number Mavoko Town Block 3/3404.

3. The matter proceeded for hearing where the Plaintiff called three witnesses while the Defendants had one witness.

Evidence of the Plaintiff 4. The Plaintiff claims his father Muinde Kathuli Kituto (deceased) was member No. 369 at Lukenya Ranching & Farming Cooperative Society Limited. He explains that the deceased was allocated the following parcels of land: Mavoko Town Block 3/7889 measuring 10 acres; Mavoko Town Block 3/3404 measuring 20 acres; Mavoko Town Block 3/11 measuring 5 acres; Mavoko Town Block 3/540 measuring 50ft x 100ft and Plot No. 58 measuring 50ft x 100ft at Ngalakya. He avers that prior to the father’s demise on 21st May, 1999, he had sold some of his assets which included land parcel No. Mavoko Town Block 3/3404, to third parties, but transfer was yet to be effected. He confirms that the purchasers took possession and occupation of their respective portions immediately after purchase and are thereon to date. He contends that the Defendants petitioned for Letters of Administration in respect to the deceased estate vide Machakos High Court Succession No. 993 of 2009 but the said estate is yet to be distributed. He states that the Defendants without a confirmed Grant proceeded to illegally transfer land Parcel No. Mavoko Town Block 3/3404 into their sole names to the exclusion of other beneficiaries.

The Plaintiff produced the following documents as exhibits:Identity Card, Limited Grant of Letters of Administration Ad Litem, Death Certificate, Letter of dated the 14th January, 2020 by Lukenya Ranching & Farming Cooperative Society Ltd, Certificate of Title issued on 10th June, 2014, Certificate of Official Search, Plaint in Machakos CMCC No. 937 of 2014 and demand letter dated 27th July, 2021.

Evidence of the Defendants’ 5. The Defendants explained that the deceased Muinde Kathuli Kituto had two wives Rebecca Muthike Muinde and Philes Kaluki Muinde. The 1st Defendant is a stepbrother to the Plaintiff while the 2nd and 3rd Defendants’ are sisters in law to the Plaintiff. They stated that the deceased had parcels of land situated at Kasinga Sublocation, Kaewa Sublocation and Mungala Sublocation in Iveti Location which he distributed amongst his two wives. They averred that since Rebecca Muthike’s children were adults he gave each parcel of land to them which were registered under their names. Further, since Philes Kalekye Muinde’s children were minors, he decided to register Philes’ parcels of land in his name. They claimed that the deceased was allocated land by Lukenya Ranching and Cooperative Farming Society Limited but since he did not have enough money, his sons David Ndolo, Robinson Mutisya Muinde and Stephen Muasa Muinde contributed towards acquisition of the shares. Further, that the deceased was allocated 65 acres of land and two plots measuring 50ft x 100ft. They confirmed that Lukenya Ranching applied for titles and the deceased parcels of land were changed as follows: Plot No. 211 measuring 40 acres – Mavoko Town Block 3/7885, Plot No. 724 measuring 20 acres – Mavoko Town Block 3/3404, Plot No. 737 measuring 5 acres – Mavoko Town Block 3/11, Plot No. 15 measuring 50ft x 100ft – Mavoko Town Block 3/540 and Plot No. 58 measuring 50 x 100ft at Ngalakya. They claimed Muinde Kathuli Kituto informed his families that he was to sell plot no. 737 measuring 5 acres Mavoko Town Block 3/11 which he sold and transferred to the buyer. They reiterated that the deceased informed them that the two families were to share thirty (30) acres as well as a plot measuring 50ft x 100ft. The Defendants’ further stated that after the deceased demise the two families agreed to dispose of Mavoko Town Block 3/7885 and they later proceeded to Lukenya Ranching, Farming and Cooperative Society offices to confirm the position whereby they found that the Plaintiff herein had sold ten (10) acres of land to George Kariuki. Further, that they all later agreed to sell the said land to George Kariuki and to subdivide Mavoko Town Block 3/3403 among the remaining beneficiaries but they discovered that the Plaintiff had already sold twenty (20) acres of the said land to purchasers.

SubmissionsPlaintiff’s Submissions

6. The Plaintiff in his submissions reiterated the facts as per his pleadings and the oral evidence presented and contended that the Defendants herein without a confirmed grant to the estate of the late Muinde Kathuli Kituto, illegally and fraudulently transferred as well as registered the suit land into their sole names. He argued that the third parties in occupation of the suit land stand to be evicted by the Defendants herein who have sued them in Machakos CMCC 937 of 2014. He further submitted that as at the demise of their father, the title deeds to land parcels emanating from membership no. 369 had not been issued. He insisted that the defence is just a mere denial with no documentary evidence to support it. He reiterated that since their father was the initial legal owner of the land parcel No. Mavoko Town Block 3/3404 and that the Defendants transferred the land to themselves without a Certificate of Confirmation of a Grant into their names, the suit land should hence revert back to the estate of the Late Muinde Kathuli Kituto. He reaffirmed that he is entitled to the orders sought in the Plaint.

Defendants’ Submissions 7. The Defendants’ in their submissions provided a background of the dispute herein and relied on the testimony of DW1. They insisted that the deceased was holding the share at Lukenya Ranching,Farming and Cooperative Society Limited in trust for his entire family. They argued that the deceased who is the father to the Plaintiff and the 1st Defendant and father in-law of the 2nd and 3rd Defendants, shared his properties before death including the proceeds from his share at Lukenya Ranching, Farming and Cooperative society Ltd. They contended that the beneficiaries of Muinde Kathuli Kituto (deceased) who include the Plaintiff herein have each received their share and some have also dealt with the said pieces of land in various transactions. They further submitted that it is only the suit land which is registered to the Defendants' side of the family while the Plaintiff's side of the family already received their share which they have not disputed. They reiterated that the court should not intervene and make orders to have the title issued for Mavoko Town Block 3/3404 cancelled as both parties have already taken possession and ownership of various properties of the deceased.

Analysis and Determination 8. Upon consideration of the Plaint, Statement of Defence, Testimonies of the Witnesses including exhibits and rivalling submissions, the following are the issues for determination: Whether the deceased solely paid for Share No. 369 in Lukenya Ranching Farming and Cooperative Society Limited or was holding the said share in trust for his family.

Whether the Defendants were legally registered as proprietors of the suit land.

Whether the suit land should be reverted to the estate of the deceased so as to be subjected to succession proceedings

9. As to whether the deceased solely paid for Share No. 369 in Lukenya Ranching Farming and Cooperative Society Limited or was holding the said share in trust for his family.It is not in dispute that the Plaintiff and 1st Defendant are the sons of the deceased while the 2nd and 3rd Defendants are his daughters in law respectively. It is further not in dispute that the deceased was registered as owner of Share No. 369 Lukenya Ranching Farming and Cooperative Society Limited. DW1 in her testimony claimed the deceased was holding the said Share in trust for the family sinceat the point of purchase of the said share, he did not have enough money and his sons David Ndolo, Robinson Mutisya Muinde and Stephen Muasa Muinde contributed towards acquisition of the said shares. However, I note the Defendants failed to tender any evidence to that effect. DW1 further claimed the deceased who was her father in law told the Lukenya Ranching Farming and Cooperative Society Limited that he was holding the shares for himself and his family. I opine that this is hearsay evidence as no documentary proof was provided to support this averment. DW1 claimed Stephen Muasia and David Ndolo were refunded certain monies but did not have receipts to support this averment. Section 107 of the Evidence is clear that whoever desires any court to give judgement over an issue emanating from certain facts, must prove those facts exist. However, since there was no evidence tendered towards the allegations on purchase of shares, or deceased distributing his properties prior to his demise as alleged by DW1, I find that the deceased solely purchased and owned Share No. 369 at Lukenya Ranching Farming and Cooperative Limited and never held the same in trust for his family as claimed.

10. As to whether the Defendants were legally registered as proprietors of the suit land.PW1 in his testimony confirmed that at the point of the deceased demise, titles to the parcels of land he owned under Share No. 369 in Lukenya Ranching, Farming and Cooperative Society Limited had not been issued. This fact was not denied by DW1. DW1 confirmed that upon the deceased demise the Defendants undertook succession proceedings, obtained a Grant in the name of Stephen Muasa Muinde and Grace Munyiva Ndolo (now deceased) but the estate of the deceased was yet to be distributed since the second house was not cooperative. DW1 further admitted that they proceeded to get registered as sole owners of the suit land. It was DW1’s testimony that since the deceased had subdivided his property prior to his demise and the Plaintiff having sold a portion of the land, they were entitled to solely own the suit land. PW1 claimed the suit land had actually been sold by the deceased prior to his demise and the purchasers settled thereon, which fact is disputed by the Defendants. However, DW1 in re-examination admitted that his father in law sold some land prior to his demise.On succeeding a deceased estate, Section 55 of the Law of Succession Act stipulates that;“No grant of representation, whether or not limited in its terms, shall confer power to distribute any capital assets constituting a net estate, or to make any division of property unless and until the grant has been confirmed as provided by section 71. ”

11. From the above cited legal provisions from the Law of Succession Act, it is clear that a deceased person’s estate cannot devolve upon his beneficiaries without Certificate of Confirmation of Grant which will indicate the mode of distribution. Insofar as the Defendants insist they are the registered proprietors of the land, from the evidence of DW1, it is clear they did not comply with the provisions of Section 55 of the Law of Succession Act before they transferred the suit land to themselves. Even if they might have valid reasons to do so, it is my considered view that these reasons were best ventilated in the aforementioned succession cause. I opine that since they failed to adhere to the procedure as prescribed by the law, their registration cannot be deemed as lawful and proper. In the circumstances, I find that the Defendants indeed obtained their registration of the suit land illegally and improperly.As to whether the suit land should be reverted to the estate of the deceased so as to be subjected to succession proceedings.

12. It emerged in evidence that the deceased estate had not been distributed despite the fact that the Defendants proceeded to procure a Certificate of Title over the suit land. Section 25 and 26(1) of the Land Registration Act provides that:‘25 (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject— (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary/ is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. 26. (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.’ Emphasis mine

13. In Civil Appeal No. 246 of 2013 Arthi Highway Developers Limited Vs West End Butchery Limited and Others, the Court of Appeal stated thus:“Section 23(1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act set out below) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act.” emphasis mine

14. See also the decision of Zacharia Wambugu Gathimu & another v John Ndungu Maina [2019] eKLR.Based on the evidence before me while associating myself with the observations in the aforementioned decisions, I find that the Defendants’ registration as proprietors of the suit land was irregular and obtained improperly and through misrepresentation. Further, since the Defendants admitted that the deceased estate was yet to be distributed, insofar as they claim the deceased had already divided his property prior to his demise but never tendered any evidence to that effect; at this juncture I opine that the suit land should be reverted back to the deceased estate so that the same can be properly distributed upon his beneficiaries. Further, if indeed the land was sold to purchasers who are thereon, then they are creditors to the deceased estate and their interest should hence be protected and dealt with in the aforementioned succession cause.

15. In the circumstances, I find that the Plaintiff has proved his case on a balance of probability and will proceed to enter judgement in his favour and make the following final orders:a.A declaration be and is hereby issued that Land parcel No. Mavoko Town Block 3/3404 is an asset of the estate of Muinde Kathuli Kituto (deceased).b.An order of rectification of the register be and is hereby issued directing the Land Registrar, Machakos to cancel the Defendants' names from the register for land parcel No. Mavoko Town Block 3/3404 as the proprietors and be replaced with that of the estate of Muinde Kathuli Kituto.c.A permanent injunction be and is hereby issued restraining the defendants, their servants, agents and employees from interfering with the peaceful possession and occupation of the purchasers or occupants on land parcel No. Mavoko Town Block 3/3404 pending determination of the Machakos High Court Succession Cause No. 993 of 2009. d.Each party to bear their own costs

DATED SIGNED AND DELIVERED VIRTUALLY AT MACHAKOS THIS 7TH DAY OF DECEMBER, 2023. CHRISTINE OCHIENGJUDGE