[2017] KEELC 3820 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

ELC CIVIL SUIT NO. 397 OF 2013

NANCY WANJIKU MWAURA………………………………..…….PLAINTIFF

VERSUS

GEORGE NJOROGE ………………………..…………..…....1STDEFENDANT

JOHN KIMONDO………………………………..………..…..2NDDEFENDANT

REGISTRAR OF TITLES KIAMBU ………….…...…….…..3RDDEFENDANT

PETER MBUGUA NJERI ………………………..…….…....4THDEFENDANT

JUDGEMENT

By a Plaint dated 21st March, 2013, the Plaintiff came to court seeking for the following orders:-

i.A declaration to issue declaring that the 1st Defendant is a trustee and holds parcel of land known as Kabete/Lower Kabete/1163(hereinafter the “the suit property”) on trust for the Plaintiff and all other beneficiaries and/or dependants.

ii. An order directing the 3rd Defendant to cancel the transfer registered on 10th December, 2012.

iii. An order of injunction restraining the Defendants either by themselves their servants, agents, nominees, surrogates and/or otherwise from selling, transferring, assigning, alienating and/or in any other manner dealing interfering or intermeddling with all that parcel of land known as known as Kabete/Lower Kabete/1163.

iv.Costs and interest of this suit.

The Plaintiff pleaded that the 1st Defendant was the administrator of the

Estate of the late Mary Nyambura Njoroge(deceased) and she was one of the dependants of the deceased and in particular to the suit property. She averred that sometimes in the year 2012, the 1st Defendant sold off the suit property to the 2nd Defendant and consequent thereto, the Plaintiff registered a caution on the suit property to prevent further dealings on the property. However, on or about the 10th December 2012, the 1st Defendant clandestinely transferred the suit property to the 2nd Defendant. It was her further averment that the 1st Defendant did not have the requisite mental and legal capacity to contract.

1st and 2nd Defendants Case

The 1st Defendant filed his Defence on 3rd July, 2014. He averred that he was the absolute heir over the suit property pursuant to a Certificate of Grant issued by this Honorable Court on 24th October, 2005. He contended that the said Grant has never been revoked. Pursuant to the aforementioned Grant, the suit property was registered by way of transmission in his name on 27th November 2012.

The 2nd Defendant on his part averred that it was his desire to purchase the suit property. He visited the suit property on 20th October, 2012. He had carried out a search and established that the suit property had no encumbrances. It was his contention that he was a bonafide purchaser for value as he had bought the suit property legally and with consent from the beneficiaries of the 1st Defendant and thereafter the 3rd Defendant had transferred the suit property in his name.

4th Defendant’s Case

The 4th Defendant filed a Counter-claim dated 26th March 2014, seeking for an Order of specific performance, that the title of the suit property in favour of the 2nd Defendant be cancelled and a new title be issued in his name plus costs and interests. He averred that the 1st Defendant executed a Sale Agreement with 4th Defendant and the 1st Defendant was the sole administrator and heir of the estate of Mary Nyambura, his mother pursuant to the Certificate of confirmation of Grant dated 24th October 2005. It was his contention that the 1stDefendant did not have the capacity to transfer the suit property to 2nd Defendant as the property had already being sold to him in the year 2008. He stated that an agreement was entered into by the 4th Defendant and the 1st Defendant on 25th November 2008.

1st and 2nd Defendant filed Reponses to the Counterclaim and averred that the said agreement was bound by time of 90 days with which to clear the payment of the purchase price. It was his contention that failure to pay within the stipulated time invalidated the contract. He further averred that the consent from the Land Control Board was never sought within the requisite 6 months and as a result the Sale Agreement was invalidated by this and failure to complete payment of the purchase price.

As a result the restriction that had being placed on the land were removed on 6th November 2012, by the 3rd Defendant for reasons that there were no supporting documents to keep the restrictions in place. Consequently the 1st Defendant was registered as the proprietor by way of transmission. Immediately thereafter he sold the land to the 2nd Defendant and obtained the requisite consent from the Land Control Board and transferred the land to the 2ndDefendant.

Plaintiff’s Evidence

The Plaintiff Nancy Wanjiru Mwaura, recorded her witness statement and the same was filed on 3rd May 2013. She prayed the same be adopted in court. She testified in court on 2nd June 2013 and stated that the 1st Defendant was her nephew and a son to her late sister Mary Nyambura Njoroge (deceased). The deceased was the owner of the suit property Kabete/Lower Kabete/1163, and the same was registered in her name. It was her testimony that she had lived on the suit land as far back as when her sister was alive. In as far as the 1st Defendant was concerned, she knew that he had schooled at Jacaranda School for the mentally handicapped but she was not aware of what he did for a living. It was her testimony that her late sister Mary Nyambura, was holding the suit land in trust for her. She had never met the 2nd Defendant and she only saw him when he came to the land and claimed that he had purchased the same. She later got to find out that the 4th Defendant had also purchased the land in 2008 and he had paid Kshs.200,000/=. She stated that the land was valued at Kshs.10,000,000/= today. She placed three cautions on the land when she got wind that the 1st Defendant intended to sell the same. However, the same were removed without her knowledge. It was her intention to cease the sale to third parties as the suit land was ancestral land and her parents were all buried on the suit land. She also stated that she was in possession of the original title to this suit land which was sold by 1st Defendant without her knowledge, though she stays on the said parcel of land and therefore in possession. In cross-examination, she admitted that 1st Defendant is the administrator of the estate of his late mother and the only son of the said deceased.

1st Defendant’s Evidence

George Njoroge the 1st Defendant, stated that the suit property herein was initially registered in the name of his late mother Mary Nyamburawho died on 2nd June 2003. Thereafter he filed a Succession Cause No.3324 of 2004 and was issued with grant as an administrator of his mother’s estate. He further testified that he was the only child of his mother and therefore the sole beneficiary of her estate. For that reason, at the confirmation of the grant, the suit property Kabete/Lower Kabete/1163 was transmitted to him to hold absolutely. He also testified that he thereafter decided to sell the suit land. Initially, he had sold it to Peter Mbugua, the 4th Defendant in the year 2008 as evidenced by the Sale Agreement dated 25th November 2008. The agreed purchased price was Kshs.200,000/= but the said Peter Mbugua failed to pay the stated amount on time and so the sale did not go through. He therefore denied that he had received Kshs.30,000/= and later Kshs.70,000/= from the 4th Defendant as per the acknowledgement notes attached to the 4th Defendant pleadings. It was his testimony that he reported the said issue to the police and after investigating it was noted that the signature on the said acknowledgement notes were not his signature. The said document for examination report was produced as Defence Exhibit 1 by DW1.

He further testified that when the sale to 4th Defendant collapsed, he sold the suit land to one John Kimondo the 2nd Defendant for Kshs.8,000,000/=. He identified the sale agreement in court and further stated that the 2nd Defendant paid the full purchase price of Kshs.8,000,000/=. However, he did not sell to the 2nd Defendant the graveyard where the remains of his mother were buried. He produced the Sale Agreement as exhibit no.6. Further that the caution that had been placed on the title was removed by the court as was evident from the Green Card exhibit no.7.

It was his further testimony that the land was given to him through transmission and the confirmed grant has never been revoked. He produced the Succession Cause proceedings as exhibit no.8. Therefore, he contended that he did not commit any fraud as his children consented to the sale of the suit land to 2nd Defendant. He also obtained the consent from the Land Control Board and the transaction was therefore over board. He further denied that he was mentally retarded and that he never attended Jacaranda School. He testified that he studied at City Primary School and later City High School in Ngara. To him, he had used the right procedure to have the land registered in his name and he rightfully sold it to the 2nd Defendant. He vehemently denied ever acknowledging receipts of money from the 4th Defendant Peter Mbugua as payment of full purchase price as indicated in their sale agreement dated 25th November 2008.

In cross examination he stated that after the payment of the purchase price by the 2nd Defendant, he bought a farm in Kamulu area where he keeps chicken and pigs. He also owns a Bar in Kayole area called “For Real Bar” and he uses the proceeds to feed his family and educate them.

DW1 No.231663, Chief Inspector Daniel Gutu, a Forensic Document Examiner told the Court that he received documents from one John Kimondo, through the DCIO Headquarters. That there were three sets of documents marked A1 and A2 which were questioned documents. He received a second set which was marked B1-B3 and they contained known signatures of George Njoroge. The third set was marked C1 and was the specimen signature. He did his examination and prepared a report which he produced as exhibit 9 in court. It was his testimony that during the examination, he subjected the signatures to image enhancement and magnification procedure. He used a machine known as video spectra. He concluded that the exhibit marked A2 was not signed by George Njoroge which was an acknowledgement receipt of Kshs.70,000/=. However, exhibit marked A1 was signed by George Njoroge and it was acknowledgement of Kshs.30,000/=. DW2 – Mary Nyambura Njoroge, the daughter of George Njoroge (1st Defendant) adopted her witness statement wholly. She testified that the Plaintiff herein is her grandmother and the suit property was owned by her grandmother Mary Nyambura. However, after the death of their grandmother, the land was transmitted to her father, George Njoroge. Due to financial difficulties, they agreed as a family to sell the land to Peter Mbugua in the year 2008. That the children gave their consent for the sale of this suit property. However, the said Peter Mbugua, did not fulfil his part of the bargain and the sale agreement was rescinded. Though Peter Mbugua was to buy the suit land for Kshs.200,000/= he did not pay the entire amount. However, 1st Defendant decided to sell the said land to John Kimondo, the 2nd Defendant on 6th November 2012. They also gave consent to his father to sell the suit land to 2nd Defendant.

After 2nd Defendant paid the full purchase price, their father 1st Defendant bought land in Kamulu area and started a bar business, which she manages. She produced the Trade Licences exhibit 9 in court. It was her testimony that they use the proceeds from the Bar to cater for the family upkeep and also pay school fees. She also testified that their father has never neglected them but has brought them up well. However, the Plaintiff herein does not even know where they live and that anytime they visited her, she would chase them away. Further that the Plaintiff has never paid school fees for them. It was her further testimony that as a family, they consented to the sale of the suit land to the 2nd Defendant.

2nd Defendant’s Evidence

DW3- John Kimondo, stated that he knows both the Plaintiff and the 1st Defendant. Further that the 1st Defendant sold the suit land to him after he saw an advert for sale of the same at Kabete Shopping Centre. He stated that after visiting the advertised land for sale, he liked it and met the owner, George Njoroge the 1st Defendant. He carried his due diligence by carrying an official search and noted the land was registered in the name of 1st Defendant with no encumbrances. The two agreed on the purchase price of Kshs.8,000,000/=. He paid the 10% by cash and after the suit property was transferred to him, he paid the balance of the purchase price by Bankers Cheque. The suit property was registered in his name on 10th December 2012. He identified the sale agreement entered between him and George Njorogein court.

4th Defendant’s Evidence

2DW1- Peter Mbugua Njeri stated that he is known to both the Plaintiff and 1st Defendant since they are related. It was his further testimony that he purchased the suit land Kabete/Lower Kabete/1163 from the 1st Defendant for Kshs.200,000/=. That they entered into a sale agreement date 25th November 2008. That the 1st Defendant’s two children, Kennedy Mwaura Njoroge and Maryanne Nyambura Njoroge gave their consents by signing affidavits. After the signing of the agreement, he paid Kshs.100,000/= to the 1st Defendant in the presence of his children and his witness Peter Muroki Mwaniki. He later paid the balance of Kshs.100,000/= in two installments of Kshs.70,000/= and Kshs.30,000/= which the 1st Defendant acknowledged. The 1st Defendant was to transfer the land to him and since it had a caution, he assisted him to have the caution removed. He further testified that after 1st Defendant received the full purchase price, he declined to transfer the land to him. However the 1st Defendant later sold the suit land to 2nd Defendant and thereafter the Plaintiff filed this suit. The 4th Defendant was made a party to the suit after he applied to be enjoined. He stated that the sale agreement between him and 1st Defendant has never been cancelled. He urged the Court to cancel the certificate of title issued to the 2nd Defendant and thereafter order it to be issued in his name. He produced his bundle of documents as 4th Defendant Exhibit 1. 2DW2 – Peter Muroki Mwaniki, stated that he knows both the 1st and 4th Defendants. He testified that on 25th November 2008, he witnessed the signing of the sale agreement between 1st and 4th Defendants. The children of 1st Defendant Nyambura and Mwaura were also present. The 1st Defendant was to sell the suit land to the 4th Defendant for Kshs.200,000/=. The sale agreement was prepared at Mose & Mose Co. Advocates offices. After the sale agreement was drawn, the 1st Defendant was paid Kshs.100,000/=by the 4th Defendant and the balance was to be paid later. He also stated that he witnessed a further payment of Kshs.70,000/= to the 1st Defendant by 4th Defendant on 26th November 2008. Further that he also witnessed exchange of Kshs.30,000/= from 4th Defendant to 1st Defendant on 27th November 2008, as final payment of the purchase price. He also witnessed the signing of the sale agreement for Kabete/Lower Kabete/1163, which is the suit property herein. It was his testimony that he saw the 1st Defendant acknowledge receipt of the payments installments of Kshs.100,000/=, Kshs.70,000/=, and finally Kshs.30,000/=.

After the close of viva voce evidence, parties filed their written submissions. The Law Firm of Akoto & Akoto Advocates for the Plaintiff filed their submission on 22nd February 2016, and stated that the 1st Defendant was non compos meritus and therefore had no capacity to enter into an agreement for sale. The Plaintiff relied on various decided cases, among them the case of Grace Wanjiru Munyinyi & Another…Vs…Gedion Waweru Githunguri & 5 Others (2011) eKLR, where the Court relied on decision in Wiltshire..Vs..Cain (1958-60) 2Barb L.R 149, where the Supreme Court held that:-

“A person may be or become of unsound mind because he has lost the ability to reason by disease, grief or other accident. Where a person in such condition can be shown not to have understood because of his mental condition, what he was doing and further that the other party was aware of this incapacity, then any contract other than a contract for necessaries made by such a person is not binding on him.”

The Plaintiff submitted that the 1st Defendant fell in that category alluded in the above decision because he did not understand the nature and effect of the sale agreement that he purportedly executed and the sale agreement therein is not a contract of necessaries and it is not binding on him and should be voided.

It was also submitted that the contract between the 1st Defendant and 2nd Defendant was tainted with fraud and should be voided. For this, Plaintiff relied on the case of Tabitha Kamwangi (Suing as next friend and mother of Mutegi Kanga)..Vs..John Gitonga Njeru & Another (2006) eKLR where the Court held that:-

“The 1st Defendant registration as proprietor of said parcel of land was fraudulent and done without compliance with the required legal formalities with the effect that no valid title can be said to have passed further 1st Defendant to the 2nd Defendant. That being the case, the 2nd Defendant’s title to the parcel of land is neither valid or indefeasible. I find therefore that the Plaintiff has proven her case against the two Defendants jointly and severally and that she is entitled to the relief sought in the Plaint”.

Therefore, the Plaintiff submitted that the transaction that saw the suit property transferred and registered in the name of the 2nd Defendant was tainted with fraud and illegalities as the 1st Defendant lacked the mental capacity to dispose of the suit property.

Further, the 1st Defendant was meant to hold the property as a trustee for the benefit of his children and he only produced consents of 3 of his 8 children which therefore nullifies the transaction. It was also submitted that the suit property is an ancestral home which should not be sold but should be passed from one generation to another.

On the part of the 1st and 2nd Defendants, the Law Firm of Vusha, Onsembe & Mambiri Advocates filed their written submissions on 9th August 2016, and urged the Court to dismiss the Plaintiff’s suit. It was submitted that the suit property is owned by the 1st Defendant through Succession Cause no.3324 of 2004, being the sole and absolute heir of the estate of Mary Nyambura Njoroge. The said suit land was transmitted to the 1st Defendant vide confirmation of grant issued on 24th October 2005, and which has never been revoked.

It was also submitted that the late Mary Nyambura Njoroge died intestate and as provided by Section 38 of the Succession Act, the 1st Defendant was the only heir. The said Section 38 provides as follows:-

“where an intestate has left a surviving child or children but no spouse, the net intestate estate shall be subject to the provisions of Section 41 and 42 devolve upon the surviving child, if there be only one or be equally divided among the surviving children”.

On whether the 1st Defendant is a person of unsound mind or non compo mentis, and with no capacity to enter into an agreement, of sale, it was submitted that the said allegation was misleading and no evidence was availed to that effect. Therefore the 1st Defendant being of sound mind and the legal owner of the suit property by transmission, had the right to sell the said property. It was further submitted that the 1st Defendant obtained consent from the Land Control Board and he rightfully transferred the suit property to the 2nd Defendant. Further that the transaction and transfer of the suit property from the 1st Defendant to 2nd Defendant was done in a lawful, open and transparent manner without any secret or fraudulent actions as claimed by the Plaintiff and 4th Defendant.

The 4th Defendant through the Law Firm of Gulenywa Jonathan & Co. Advocates filed their submissions on 24th October 2016, and submitted that the 4th Defendant entered into a sale agreement with the 1st Defendant but the 1st Defendant later breached the same as he did not surrender the suit property to the 4th Defendant. Further that on his par, he paid the full purchase price and he therefore met his obligation. The Plaintiff therefore has no claim against the 4th Defendant and the same should be dismissed. It was however submitted that the agreement between the 1st Defendant and 4th Defendant was valid and the Court should uphold it. He urged the Court to cancel the title held by 2nd Defendant and allow the 4th Defendant’s Counter-claim on specific performance against the 1st Defendant.

This Court has now carefully considered the pleadings herein and the annextures thereto. The Court has also examined the available evidence and the exhibits thereto. The Court has also considered the written submissions, the cited authorities and the relevant provisions of law and the Court renders itself as follows:-

There is no doubt that the suit property herein Kabete/Lower Kabete/1163, is registered in the name of the 2nd Defendant herein John Kimondo, having been registered so on 10th December 2012. It is also evident that the 2nd Defendant obtained this registration after purchasing the suit property form the 1st Defendant on 6th November 2012 for a consideration of Kshs.8 million as is evident from the sale agreement produced in court. It is also evident that the Land Control Board Consent was obtained on 6th December 2012, by the 1st Defendant who was authorized to sell the suit property to John Kimondo, the 2nd Defendant herein.

It is also evident that prior to this transaction of 6th November 2012, the 1st Defendant had also entered into an earlier sale agreement with Peter Mbugua Njeri, the 4th Defendant on 25th November 2008, for sale of this same suit property for consideration of Kshs.200,000/=. The said Peter Mbugua alleged that he paid the full purchase price of Kshs.200,000/= but the 1st Defendant alleged that the 4th Defendant only paid Kshs.30,000/= and so the said contract did not go through. It is evident that the 1st Defendant had not obtained Land Control Board consent over this transaction and he did not effect transfer of the suit property to the 4th Defendant.

It is also not in doubt that prior to the registration of this suit property in the name of the 1st Defendant, the suit property was registered in the name of Mary Nyambura Njoroge, who was the mother to the 1st Defendant. It was testified by both the Plaintiff and the 1st Defendant that Mary Nyambura died in the year 2003 and the 1st Defendant was her only surviving child. The Plaintiff had alleged that the said Mary Nyambura Njoroge left a Will expressing how she wished the suit land to be utilized and that the said Mary Nyambura held the land in trust for the Plaintiff and her other family members and therefore she had a beneficial interest. However, the 1st Defendant alleged that his mother died intestate and he filed a Succession Cause over her estate. He was appointed the legal representative of his mother’s estate and later the suit property was transmitted to him absolutely through the confirmation of grant. It was his evidence that the said grant has never been revoked and the Plaintiff did not raise any objection during the Succession Cause.

There is also no doubt that the suit property herein is a resultant subdivision of Kabete/Lower Kabete/885, which was owned by oneGladwell Mumbi the grandmother to 1st Defendant and mother to the Plaintiff. It is also evident that the Plaintiff is also the registered owner of Kabete/Lower Kabete/1164, wherein she admitted that she utilizes the same for farming. However, she stated that Mary Nyambura Njoroge, held the suit property in trust for the family members of Gladwell Mumbi. It was not clear why Plaintiff was also not holding her property Kabete/Lower Kabete/1164, in trust for the family members just as she claimed the late Mary Nyambura was holding the suit property in trust.

It is also evident that during the sale of the suit property some children of the 1st Defendant did give their consents for the sale by signing affidavits and witnessing the signing of the sale agreements. The 4th Defendant has claimed that he is entitled to the suit property by virtue of having entered into the sale agreement as the first vendor. The Plaintiff has alleged that she has a beneficial interest over the suit property and that the registration of the suit property to the 2nd Defendant should be cancelled.

The above being the undisputed facts, the Court finds that the issues for determination are:-

i. Whether the 1st Defendant is a Trustee and hold thesuit property Kabete/Lower Kabete/1163 on trust for the Plaintiff and all other beneficiaries.

ii. Whether the sale agreement entered between the 1st Defendant and 2nd Defendant on 6th November 2012 was null and void.

iii. Whether the Plaintiff is entitled to the prayers sought in the Plaint.

iv. Whether the sale agreement dated 25th November 2008 between the 1st Defendant and 4th Defendant is still valid and enforceable and whether the 4th Defendant is entitled to the prayers sought in his Counter-claim.

v. Who should bear the costs of this suit.

i) Whether the 1st Defendant is a Trustee and holds the title No.Kabete/Lower Kabete/1163 in trust for the Plaintiff and all other beneficiaries and/or Dependants

As the Court found above, the suit property herein was initially registered in the name of Mary Nyambura Njoroge (deceased) who was a mother to the 1st Defendant and a sister to the Plaintiff herein. Further the suit property was a subdivision of Kabete/Lower Kabete/885, which was registered in the names of Gladwell Mumbi (deceased) mother to the late Mary Nyambura Njoroge, the Plaintiff and five other siblings. The Plaintiff in her testimony admitted that the initial land parcel Kabete/Lower Kabete/885, was divided into seven portions for the seven siblings of Gladwell Mumbi. Each of the seven siblings got a plot in his or her name. The Plaintiff’s parcel of land is Kabete/Lower Kabete/1164, which she uses for farming. The other five siblings of Gladwell Mumbi are not parties to this suit and they have not claimed that the late Mary Nyambura was holding the suit property in trust for herself and all the other beneficiaries and dependants.

The Plaintiff further alleged that the suit land is an ancestral land and should pass from one generation to another. However, there was no evidence why the other six portions subdivided from Kabete/Lower Kabete/885, have also not been declared as ancestral land. Further the Plaintiff did not adduce evidence to confirm whether her parcel of land Kabete/Lower Kabete/1164 is also an ancestral land and that she is holding it in trust for the other beneficiaries and dependants. Be that as it may, it is evident that after the demise of the late Mary Nyambura Njoroge, the 1st Defendant filed a Succession Cause No.3324 of 2004, over his mother’s estate. He was appointed as the legal administrator and later the absolute owner of the suit property herein.

Though the Plaintiff alleged that the late Mary Nyambura left a Will, on how she wished her estate to be distributed, there is no evidence that the Plaintiff herein nor her siblings raised any objection in the Succession Cause No.3324 of 2004. Indeed on 24th October 2005, the grant issued to the 1st Defendant was confirmed as per the certificate of confirmation of grant produced in court. The 1st Defendant was granted the suit property absolutely. If the Plaintiff was a beneficiary of the said estate, it could have been stated so in the said confirmed grant. Further she never objected to the said confirmation of grant and the said grant has never been revoked. Consequently, the 1st Defendant got registered as the sole proprietor of the suit property through transmission. Since the Plaintiff herein failed to prove validity of the alleged Will left behind by Mary Nyambura Njoroge, then as provided by Section 38 of the Law of Succession, the 1st Defendant legally obtained the suit property as a sole and absolute proprietor.

There was no evidence adduced by the Plaintiff that the late Mary Nyambura Njoroge, held the suit land in trust for the Plaintiff. There was also no evidence from the other siblings to support the Plaintiff’s allegations. Therefore the Court finds that the 1st Defendant inherited the suit property rightfully and absolutely from the estate of this late mother. The grant that transmitted the said land to him has never been revoked. Though the Plaintiff herein had lodged caution on the title document herein as is evident from the green card, the said caution was removed on 6th November 2012, for lack of supporting documents. The Court has also seen the certificate of official search dated 27th November 2012, which shows that the proprietor was the 1st Defendant with no caution, inhibitions and encumbrances.

After analysis of the available evidence, the Court finds that the Plaintiff herein benefitted from the subdivision of Kabete/Lower Kabete/885, just like her late sister Mary Nyambura Njoroge, the mother of the 1st Defendant. The Plaintiff obtained land parcel No.Kabete/Kabete/1164,and her late sister Kabete/Lower Kabete/1163, the suit property. Since Mary Nyambura Njoroge is now deceased and with the absence of any evidence of existence of a valid will, her estate devolved to her only surviving son the 1st Defendant. There was no evidence that the 1st Defendant is holding the suit property in trust for himself, the Plaintiff and all other beneficiaries and dependants.

ii) Whether the sale agreement dated 6th November 2012 between the 1st Defendant and 2nd Defendant was null and void?

The Plaintiff alleged in her evidence and submissions that the 1stDefendant was non-compos mentis or a person of unsound mind and had no capacity to enter into any agreement of sale. The 1st Defendant vehemently denied that allegation. Since the Plaintiff herein is the one who had alleged, the onus of proof laid squarely on her as provided by Section 107 of the Evidence Act which states:-

“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 had testified that the 1st Defendant was mentally incapacitated and that he even schooled at Jacaranda School for mentally handicapped. However, the 1st Defendant disputed that allegation and testified that he went to school at City Primary and later City High School in Ngara upto Form 4. It is the Plaintiff who had alleged and so she had a duty to prove. The Plaintiff did not adduce any medical evidence to the effect that 1st Defendant was mentally handicapped. She also did not avail any documents from the said Jacaranda School for the mentally handicapped to prove that indeed the 1st Defendant was a student at the said school and he has a mental incapacity. As the court stated earlier, no medical evidence was availed to prove the mental incapacitation of the 1st Defendant.

DW2, Maryanne Nyambura Njoroge, the daughter to 1st Defendant testified in Court and stated that her father is of sound mind and has brought them well. Further, the 2nd and 4th Defendants also testified in court and at no time did they allude to the fact that in the course of the transactions herein, they noted that the 1st Defendant had mental incapacity. Further 1st Defendant testified in Court and he was coherent and systematic in his evidence. This Court never witnesses any sign of mental handicap on him. As was held in the case of Grace Wanjiru Munyinyi & Another ..Vs…Gedion Waweru Githunguri (supra)

‘there is a presumption that every person is of sound mind until the contrary is proved and the onus of proof was on the person who alleges the contrary”.

Further in the case of Wiltshire…Vs…Cain (1958-69)2 BarbL.R. 149, the Supreme Court of Barbados held that:-

“…For the Defence to succeed, it must show

(a) the incapacity of the Defendant due to the mental illness in one form or another and

(b) that the Plaintiff knew of the condition of the Defendant. The burden in respect of both of these matter rests on the defence”.

The Plaintiff alleged that the 1st Defendant was suffering from mental incapacitation. She had the onus of proving that allegation which she did not. The allegation of unsound mind is a serious allegation which needs sufficient proof. In the case of Patrick Muchira…Vs…Patrick Kahiaru HCCC 113 of 1999, the Court held that:-

“It is a very serious thing to say of, and concerning a person, that such person is a person of unsound mind or suffers mental disorder. The law presumes that every person is mentally sound, unless and until he is proved mentally disordered. And, even where one person is shown to be of unsound mind always bear in mind that the degrees of mental disorder are widely variable, and incompetence to do any legal act or inability to protect one’s own interests, must not be inferred from a mere name assigned to the malady form which a person may be suffering”.

This Court has considered the sale agreement in issue dated 6th November 2012. It is sworn by both the vendor and the purchaser in the presence of their witnesses. It describes the property in issue as Kabete/Lower Kabete/1163, which is the suit property. It gives the purchase price and the condition of sale. The said sale agreement is in writing as stipulated by section 3(3) of the Law of Contract which states as follows:-

“No suit shall be brought upon a contract for thedisposition of an interest in land unless:—

(a) the contract upon which the suit is founded:—

(i) is in writing;

(ii) is signed by all the parties thereto; and

b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party;

For all practical purposes, the stated Sale Agreement is valid. Further the 1st Defendant obtained a consent from the Land Control Board and as stated in Section 6 of the Land Control Board Act, the said sale is valid.

Having now considered the available evidence, the Court finds that the answer to this issue herein is that the sale agreement dated 6th November 2012, between the 1st Defendant and 2nd Defendant is valid and this Court finds no reason to void it.

iii) Whether the Plaintiff is entitled to the prayers sought in the Plaint?

The Plaintiff has sought for three main prayers in her Plaint. Prayer no.(a) has been answered in issue no.1 herein.

On prayer no.b that an order do issue directing the 3rd Defendant to cancel the transfer registered on 10th December 2012, the Court has noted that on 11th May 2015, when the hearing commenced, the Plaintiff herein withdrew her claim against the 3rd Defendant. There are no orders therefore directed to the 3rd Defendant. However as this Court held and found earlier, the 2nd Defendant legally bought the suit property from the 1st Defendant who had obtained the same through transmission.

After the registration of the sit property, the 2nd Defendant became the absolute and indefeasible owner of the said property. His title can only be challenged as provided by Section 26(1)(a) &(b) of the Land Registration Act 2012. However, there was no evidence that the 2nd Defendant obtained registration of the suit property through fraud or misrepresentation. The 2nd Defendant entered into a valid sale agreement with the 1st Defendant on 6th November 2012. He duly paid the purchase price and consent was duly given by the Land Control Board. The contract for sale of this suit land is in writing as provided by Section 3(1) of the Law of Contract Act. The 2nd Defendant therefore followed all the laid down formalities in the purchase of this suit property. His rights are therefore protected by Article 40 of the Constitution 2010 and Sections 24 and 25 of the Land Registration Act. His certificate of title is a conclusive prove that he is the proprietor of the suit property as provided by Section 26(1) of the Land Registration Act which provides:-

“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 acquiredillegally, unprocedurally or through a corrupt scheme.

This Court having found the 2nd Defendant is an absolute and indefeasible owner of the suit property without any evidence of fraud or illegality, further finds that there are no reasons advanced by the Plaintiff herein to cause this Court to issue an order of cancellation of the 2nd Defendant’s certificate of title.

On prayer no.7, the 1st Defendant has already sold the suit property to the 2nd Defendant. Therefore no injunction can attach to the 1st Defendant. The 2nd Defendant legally purchased the suit property from the 1st Defendant and 1st Defendant’s children gave their consents and so did Land Control Board as provided by Section 6 of the Land Control Board Act, Cap 302 Laws of Kenya.

Having found that 2nd Defendant’s rights are protected by Sections 24 and 25 of the Land Registration Act, the Court finds no reason to curtail the said rights by issuing an order of injunction. The Plaintiff has not adduced sufficient evidence to warrant grant of such injunction.

In light of the above analysis, the Court finds that the Plaintiff is not entitled to any of the orders sought in the Plaint.

iv) Whether the sale agreement dated 25th November 2008 between the 1st Defendant and 4th Defendant is still valid and enforceable and whether the 4th Defendant is entitled to the prayers sought in the Counterclaim.

There is no doubt that the 1st Defendant George Njoroge entered into a sale agreement with Peter Njoroge Njeri the 4th Defendant on 25th November 2008. The agreement was over sale of the suit property Kabete/Lower Kabete/1163 for Kshs.200,000/=.The 4th Defendant has alleged that he did pay the full purchase price to the 1st Defendant and 1st Defendant did acknowledge receipt of the said amount. However the 1st Defendant denied receipt of the full purchase price and alleged that the acknowledgement notes produced by the 4th Defendant were a forgery. The said sale agreement in Clause 3 stated that; “The actual completion date shall be ninety (90) day from the date of execution of this agreement or within 14 days of successful registration of transfer in favour of the purchase.”From the available evidence, it is evident that there was no completion of the sale agreement within 90 days. Further, even if the children of the 1st Defendant had consented to the sale of the suit land to the Plaintiff, there was no consent from the Land Control Board validating

this transaction or sale. See the case of Elizabeth Cheboo…Vs…Mary Cheboo Gimnyigei, Civil Appeal No.40 of 1978, where the Court held that:-

“Failure to get Land Control Board consent renders the agreement void and no specific reference can be granted.”

Further in Mbuthia Charagu …Vs…Kiarie Kaguru, Civil Appeal No.87 of 1986, the Court held that:-

“Unless there is a consent of Land Control Board all the transactions relating to the transfer are null and void.”

There is no evidence herein that the 1st Defendant had obtained consent from the Land Control Board to transact on the suit land. Therefore the sale agreement herein is null and void and the same cannot be used to seek for orders of specific performance.

Having found that the Sale Agreement dated 25th November 2008 is null and void for want of consent from the Land Control Board, is the said agreement still valid?

The 4th Defendant alleged that he paid the full purchase price and the 1st Defendant acknowledged receipt of the same. DW1 the document examiner examined the documents availed to him and noted that the acknowledgement receipt for Kshs.70,000/= was found not to have been signed by the 1st Defendant. However, the acknowledgement for Kshs.30,000/= was found to have been signed by the 1st Defendant. The said sale agreement in Clause 12 provided the remedy available to the purchaser in case of breach of the vendor.

Though the 4th Defendant alleged that he paid Kshs.100,000/= on the 25th November 2008, when the sale agreement was executed, 1st Defendant denied receipt of this amount. His daughter DW2 Maryanne Nyambura also denied having seen exchange of this amount. However, there is acknowledgement of receipts of Kshs.30,000/= by the 1st Defendant on 27th November 2008. DW1 the document examiner confirmed that the signature on A1 which is the acknowledgement letter for 27th November 2008, for receipt of Kshs.30,000/= was signed by 1st Defendant. The 1st Defendant in his evidence admitted to have received this amount. He however denied having received Kshs.70,000/= as per the document A2 dated 26th November 2008. The document examiner stated that this document was not signed by 1st Defendant as the signature therein was not signed by the same person who signed A1. This Court therefore finds that it is not clear whether 1st Defendant received Kshs.70,000/=from the 4th Defendant. Having considered the available evidence, the Court finds that the only available evidence of receipt of money by 1st Defendant from 4th Defendant is from document no.A1 for Kshs.30,000/=.

This Court therefore comes to a conclusion that though the sale agreement dated 25th November 2008 stated that the purchase price for the suit land was Kshs.200,000/=, the 4th Defendant only paid Kshs.30,000/= to the 1st Defendant. The 4th Defendant did not pay the full consideration and he is not entitled to any order of specific performance. See the case of Guidev Singh Birdi & Another…Vs…Abubakar Madhubuti, Civil Appl.No.165 of 1996, where the Court held that:-

“A party seeking specific performance must show proof that he has complied with his part of the agreement.”

Therefore having arrived at a finding that the 4th Defendant did not pay

the full purchase price, then this Court finds that he is not entitled to an order of specific performance.

This Court further finds that the sale agreement dated 25th November 2008 is not valid for lack of Consent from the Land Control Board and it therefore not enforceable. The 4th Defendant is not entitled to an order of specific performance but refund of the monies

paid to the 1st Defendant which is Kshs.30,000/= plus 20% of the purchase price as provided by Clause 12 of the said sale agreement. Consequently, this Court finds that the 4th Defendant herein is entitled to a refund of Kshs.30,000/= plus Kshs.40,000/= which is 20% of the purchase price as stipulated in Clause 12 of sale agreement dated 25th November 2008.

v) Who should pay costs of this suit.

Ordinarily costs follow the event. The Plaintiff herein has not succeeded in her claim. Section 27 of the Civil Procedure Act provides that costs are granted at the discretion of the Court. The Plaintiff herein filed this suit while having no justification to do so. Consequently, this Court finds that the Plaintiff herein should bear the cost of this suit.

Having now carefully considered the matter herein in totality, the Court finds that the Plaintiff has not proved her case on a balance of probabilities. Consequently, the Court dismisses the Plaintiff’s entire suit dated 21st March 2013 with costs to the Defendants.

Further the Court finds that the 4th Defendant has failed to prove his Counter-claim on the required standard of balance of probabilities. The said Counter-claim is also dismissed entirely with no orders

as to costs. However, the 4th Defendant is entitled to refund of Kshs.30,000/= being payment of part of the purchase price plus Kshs.40,000/=as20% interest on the purchase price. Therefore the 4th Defendant is entitled to a refund of Kshs.70,000/= by the 1st Defendant forthwith.

It is so ordered.

Dated, Signed and Delivered at Nairobi this 12thday of October 2017.

L. GACHERU

JUDGE

12/10/2017

In the presence of

Mr. Adori for Plaintiff 1st Defendant

M/s Gulenywa 2nd Defendant

3rd Defendant

M/s Gulenywa holding brief for 4th Defendant

Hilda - Court clerk.

L. GACHERU

JUDGE

12/10/17