[2024] KEELC 6031 (KLR)

Mulati v Munyasa & another (Environment & Land Case 210 of 2017) [2024] KEELC 6031 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6031 (KLR)

Republic of Kenya

In the Environment and Land Court at Kakamega

Environment & Land Case 210 of 2017

DO Ohungo, J

September 23, 2024

Between

Abraham Nyongesa Mulati

Plaintiff

and

Maina Edwin Munyasa

1st Defendant

Alphonce Maina Marindi

2nd Defendant

Judgment

1. The Plaintiff moved the Court through Plaint dated 23rd June 2017 wherein he averred that he was the administrator of the estate of Beatrice Kanusu (deceased) who was the registered proprietor of the parcel of land known as Kakamega/Malava/3107 (the suit property) until 15th July 2010. He further averred that the Defendants obtained title to the suit property fraudulently, without consent of the Land Control Board and without administration of the deceased’s estate.

2. The Plaintiff therefore prayed for judgement against the Defendants for cancellation of the Defendants’ registration as proprietors of the suit property so that it reverts to Beatrice Kanusu pending administration of her estate. He also sought costs of the suit and interest.

3. The Defendants filed a Statement of Defence dated 14th July 2017, through which they averred that the suit was res judicata in view of Kakamega HC Succession Cause No. 24 of 2015 and Rent Restriction Case No. 69 of 2015. They denied the Plaintiff’s allegations and urged the Court to dismiss the suit with costs.

4. The Plaintiff testified as PW1 and stated that he holds a Limited Grant of Letters of Administration Ad Litem in respect of the estate of Beatrice Kanusu (deceased) who was his mother and who passed away on 18th November 2009 in Germany. That his mother (Beatrice) was the registered proprietor of the suit property until 15th July 2010 when his sister Jane Tunai Kanusu (Jane) became registered proprietor. He further stated that Beatrice had developed houses on the suit property and that Jane stole the title of the suit property from Beatrice and transferred the suit property to herself after Beatrice’s death. That Jane later passed away and that the First Defendant was her husband. He also testified that the suit property is registered in the Defendants’ names and produced a copy of Certificate of Official Search dated 14th July 2017. He added that he had a Rent Tribunal and burial dispute cases with the Defendants and that he lost the burial case.

5. Elijah Lunani Sabuni (PW2) adopted his witness statement dated 30th January 2018. He stated in the statement that the Plaintiff is his nephew, that Beatrice was his cousin and Jane was his niece. That Jane started living with the First Defendant after the death of Beatrice and that Jane transferred the suit property to herself secretly after which she used a shortcut to transfer title to the Defendants. Under cross-examination, PW2 stated that he knew that there was a burial dispute concerning where Jane was to be buried and that the First Defendant succeeded and was allowed to bury Jane’s body.

6. The Plaintiff’s case was then closed.

7. The First Defendant testified as the sole defence witness and adopted his witness statement dated 14th July 2017. He also produced copies of the documents listed as item numbers 1 to 8 in the Defendants’ List of Documents dated 14th July 2017 as defence exhibits. He stated that he was born in 1983 and that the Second Defendant is his father.

8. The First Defendant stated in the witness statement that Jane, who passed away on 23rd September 2014, was his wife and that he is the administrator of her estate jointly with the Second Defendant since the estate involved minors. That the suit property was part of Jane’s estate and was registered in the Defendants’ joint names through transmission on 3rd February 2017. He added that after Jane’s death, he had a burial dispute with the Plaintiff in Kakamega HCCC No 16 of 2014 where a decree was passed in his (the First Defendant’s) favour on 23rd October 2014.

9. The First Defendant went on to state Beatrice allocated the suit property to Jane while Beatrice was still alive, and that Jane took possession before she later married the First Defendant in the year 2010. That after the marriage, Jane and the First Defendant pooled resources and constructed rental houses on the suit property in the year 2010 without any objection from the Plaintiff. He added that the Plaintiff incited his (the First Defendant’s) tenants in the rental houses not to pay rent to him as a result of which the Plaintiff and the tenants jointly filed Kakamega Rent Restriction Case No. 69 of 2015 which was heard and determined in his (the First Defendant’s) favour on 21st April 2017. That thereafter, the Plaintiff filed an application in Kakamega HC Succession Cause No. 24 of 2015, seeking similar orders but without disclosing that the issue of payment of rent had been heard and determined by the Tribunal. He added that the suit property does not form part of Beatrice’s estate, and the Plaintiff does not therefore have any basis to claim it.

10. The First Defendant further testified that there is on the suit property one block with 12 rented rooms and that Jane owned the suit property prior to their marriage. That he obtained title after succession in respect of Jane’s estate and that the plaintiff’s objection in the succession proceedings was dismissed.

11. Defence case was then closed. Parties thereafter filed and exchanged written submissions.

12. The Plaintiff argued that according to the register of the suit property, Jane did not acquire the suit property through transmission but as a purchaser on 15th July 2010, some eight months after Beatrice’s death. That, consequently, registration of Jane as proprietor was fraudulent and illegal since it amounted to intermeddling, contrary to Section 45 (1) of the Law of Succession Act. He relied on the case of Virginia Mwari Thuranira v Purity Nkirote Thuranira [2017] eKLR and Re Estate of M’Ngarithi M’Miriti [2017] eKLR in support of those arguments.

13. Further, the Plaintiff cited Section 26 of the Land Registration Act as well as the cases of Samuel Kamere v Lands Registrar, Kajiado [2015] eKLR and Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment) and argued that Jane did not obtain a valid title and that by extension, the Defendants did not hold a good title worthy of protection by both the law and this Court. He therefore urged the Court to allow his case and grant him the orders sought.

14. In response, the Defendants argued that the suit is res judicata as contended in their defence and incurably defective for failure to join the Land Registrar. They relied on the cases of Quinto Ocheruk & 2 others v Alex Emojong [2018] eKLR and Simon Njagi Njoka v James Gatimu Muriithi & 5 others [2019] eKLR, in support of those arguments. They further argued that the Plaintiff failed to prove his allegations of fraud and added that they acquired title procedurally and lawfully from Jane who had acquired title during her lifetime. They relied on the case of Eviline Karigu (Suing as Administratix of Estate of Late Muriungi M’Chuka alias Miriungu M’Gichuga) v M’Chabari Kinoro [2022] eKLR and urged the court to dismiss the case with costs, for want of merit.

15. I have considered the pleadings, the evidence and the submissions. The issues that arise for determination are whether the suit is res judicata, whether the suit is defective for failure to join the Land Registrar, whether fraud has been established and whether the reliefs sought should issue.

16. Before I delve into resolving the issues for determination, it is apposite that I highlight the non-contentious aspects of the case. The Plaintiff has brought this suit as an administrator of Beatrice’s estate. He has done so on the strength of Limited Grant of Letters of Administration Ad Litem issued to him on 7th March 2016 and limited to the purpose of filing or defending suit. Beatrice passed away on 18th November 2009 and was the registered proprietor of the suit property from 26th March 2007.

17. After Beatrice, title to the suit property passed to Jane, a daughter to Beatrice, sister to the Plaintiff and wife to the First Defendant. Jane passed away on 23rd September 2014 and the Defendants are joint administrators of her estate. Pursuant to Certificate of Confirmation of Grant issued to the Defendants on 22nd September 2016 in Kakamega HC Succession Cause No. 24 of 2015, the Defendants became registered proprietors of the suit property on 3rd February 2017, in trust for minors.

18. Now onto the first issue for determination, whether the suit is res judicata. Res judicata is an issue that goes to the Court’s jurisdiction and therefore calls for determination in limine, since without jurisdiction, the proceedings come to a certain end and the court cannot take any further step. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR.

19. As was stated by the Supreme Court stated in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR:A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.

20. Beyond being a doctrine of general application, res judicata has been immortalized at Section 7 of our Civil Procedure Act as follows:No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.

21. The effect of the foregoing provisions and the doctrine of res judicata is that it deprives a court of law of jurisdiction to hear and determine a matter, once the ingredients are established. For an objection based on the doctrine to be upheld, there must have been a previous suit in which the matter was in issue; the parties in both matters must be the same or litigating under the same title; the previous matter must have been heard and determined on the merits by a competent court and the issue is raised once again in the new suit. See John Florence Maritime Services Limited & another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] eKLR.

22. The Defendants have argued that this suit is res judicata in view of Kakamega HC Succession Cause No. 24 of 2015 and Rent Restriction Case No. 69 of 2015. The Defendants did not produce the main pleadings in the said cases, to enable this Court to gauge for itself the issues that were for determination in the cases. Nevertheless, a perusal of the copy of the Certificate of Confirmation of Grant issued to the Defendants in Kakamega HC Succession Cause No. 24 of 2015 reveals that the said proceedings were brought under the Law of Succession Act, for the administration of Jane’s estate. The present case does not concern administration of the said estate. It instead concerns validity of the Defendants’ title, pursuant to the Land Registration Act. From the First Defendant’s own testimony, Rent Restriction Case No. 69 of 2015 concerned the issue of whether the tenants in the suit property should pay rent to the Defendants. That is not an issue for determination in this case. I find that this case is not res judicata.

23. The next issue for determination is whether the suit is defective for failure to join the Land Registrar. While it is true that the Land Registrar is not a Defendant in this case, I have perused the Plaint, and I note that the Plaintiff does not seek any relief against the Land Registrar. Pursuant to Order 1 Rule 3 of the Civil Procedure Rules, a Plaintiff is required to only join such persons as Defendants against whom he has a right to relief. Indeed, Order 1 Rule 9 of the Civil Procedure Rules makes it clear that “No suit shall be defeated by reason of the misjoinder or nonjoinder of parties …” I find and hold that the suit is not defective for non-joinder of the Land Registrar.

24. I now turn to the twin issues of whether fraud has been established and whether the reliefs sought should issue. The Plaintiff pleaded at paragraphs 6, 8 and 9 of the Plaint that registration in favour of Jane was fraudulent since it was done after Beatrice’s death and for want of both consent of the Land Control Board and administration of Beatrice’s estate.

25. As noted earlier in this judgment, the Defendants are the registered proprietors of the suit property, in trust for minors. They were so registered on 3rd February 2017. In their capacity as registered proprietors, the Defendants are entitled to the rights, privileges, and benefits spelt out by the law, ranging from Article 40 of the Constitution to Section 24 of the Land Registration Act. Further, Section 26 of the Act obligates the court to accept the Defendants’ certificate of title as conclusive evidence of proprietorship, unless the provisos under Section 26 (1) (a) or (b) are established.

26. The grounds on which a title can be nullified are fraud or misrepresentation to which the registered proprietor is proved to be a party or where it is shown that the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme. The Plaintiff has chosen to attack the Defendants’ title on grounds of fraud.

27. An allegation of fraud is a serious matter. The learned authors of Black’s Law Dictionary 10th Edition define fraud to mean “A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment”. By way of further elaboration, the authors quote the following extract from John Willard, A Treatise on Equity Jurisprudence 147 (Platt Potter ed., 1879):“Fraud has been defined to be, any kind of artifice by which another is deceived. Hence, all surprise, trick, cunning, dissembling, and other unfair way that is used to cheat any one, is to be considered as fraud.”.

28. A litigant who alleges fraud is required to plead it, particularise it, and strictly prove it to a standard higher than proof on a balance of probabilities but lower than the criminal law standard of proof beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR.

29. The Court of Appeal restated the law applicable to proof of fraud in civil cases in Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR thus:The law is clear and we take it from the case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

30. The Plaintiff’s complaint against the Defendants’ title is built around the question of the date of Beatrice’s death vis a vis the date of registration of proprietorship in favour of Jane. Beatrice died on 18th November 2009. The Plaintiff produced a copy of the register of the suit property which shows that Beatrice remained registered proprietor until 15th July 2010 when Jane was registered as proprietor for a consideration of KShs 200,000. By that date, Beatrice had passed away. The Plaintiff averred that the transfer was effected without succession proceedings being conducted in respect of Beatrice’s estate. Beyond that averment, the Plaintiff did not offer any evidence to establish his claims. Such evidence is crucial since the plaintiff was under a duty to prove fraud to a standard higher than proof on a balance of probabilities. Additionally, the Plaintiff must have been aware that fraud cannot simply be inferred.

31. The mere fact that a proprietor is deceased does not render all transfers registered after death invalid. A transfer can be validly registered even after death of the transferor. While addressing a similar situation, the Court of Appeal stated in the case of Kagina v Kagina & 2 others (Civil Appeal 21 of 2017) [2021] KECA 242 (KLR) (3 December 2021) (Judgment) thus:33. We have revisited that rival position on the record and agree with the position taken by the Judge that a deceased person has capacity to divest himself of property during his lifetime known in law as gifts inter vivos which in the Judge’s opinion and correctly so in our view are not only protected under the Act but are also sanctionable by a court of law irrespective of whether they are perfect or imperfect. By perfect is meant, complete, meaning the transfer of the gift inter vivos in favour of the beneficiary was effected and completed during the lifetime of the deceased while by imperfect is meant the transfer of the gift in favour of the recipient was incomplete as at the time of the demise of the deceased. As correctly observed by the Judge, lack of completion of the process of transfer does not of itself render the gift inter vivos invalid. It can be perfected by the grant holder if there is no contest over it, or alternatively sanctioned by a court where proven.34. Our take on the above rival position is that we find no mis-appreciation or misapplication of the law on intermeddling. The position taken by Tanui, J. in the Gitau & 2 Others vs. Wandai & 5 Others case [supra] is the correct threshold to be applied by a court addressing a complaint of alleged intermeddling in a deceased person’s estate and which we find from the record the Judge properly appreciated and applied.

32. Whereas the Plaintiff has contended that the Defendants are merely waving their title, I bear in mind the close family relationship between Beatrice, Jane and the Plaintiff and the First Defendant’s testimony that Beatrice allocated the suit property to Jane while Beatrice was still alive. The Plaintiff must not lose sight of the burden of proof facing him in view of his allegations of fraud. A party claiming title to registered land must succeed on the strength of his case and not on perceived weakness or even absence of defence. See Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others [2018] eKLR. That burden becomes heavier when the case is grounded on allegations of fraud. It seems to me that what is at play is a succession dispute as opposed to issues of fraud.

33. I find that the Plaintiff has failed to establish fraud. It follows therefore that the reliefs sought are not available. I find no merit in the plaintiff's case, and I therefore dismiss it. In view of the close family relationship between the parties, I make no order as to costs.

DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 23RD DAY OF SEPTEMBER 2024. D. O. OHUNGOJUDGEDelivered in open court in the presence of:Mr Ogonji holding brief for Mr Munyendo for the PlaintiffNo appearance for the DefendantsCourt Assistant: M Nguyayi