[2023] KEELC 18135 (KLR)

Ndichu (The Legal Representative of the Estate of John Ndichu Ngeru - Deceased) v Mbugua & 9 others (Environment & Land Case 637 of 2014) [2023] KEELC 18135 (KLR) (15 June 2023) (Judgment)

Neutral citation: [2023] KEELC 18135 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 637 of 2014

LN Mbugua, J

June 15, 2023

Between

George Njung’e Ndichu (The Legal Representative of the Estate of John Ndichu Ngeru - Deceased)

Plaintiff

and

Dominic Gathea Mbugua

1st Defendant

Naylor Shivachi Mukofu

2nd Defendant

David Chege Mbugua

3rd Defendant

Abad Rashid

4th Defendant

Dilawar Rashid

5th Defendant

Tereek Mohamood

6th Defendant

Farooq Anwar

7th Defendant

Seenat Anwar

8th Defendant

Zarina Begum

9th Defendant

Naseem Anwar

10th Defendant

Judgment

1. The initial Plaintiff, one JOHN NDICHU NGERU commenced this suit vide originating summons dated 21. 5.2014. He died on 4. 8.2014, and vide a grant issued on 11. 5.2015, his legal representative, one GEORGE NJUNG’E NDICHU took over the prosecution of the suit.

2. The Originating Summons was thereafter amended on 22. 11. 2017. It is his case that on 29. 7.2013, the 1st-3rd Defendants were registered as proprietors of the suit property L.R. No. 209/223/6; that the said registration was obtained fraudulently as the 4th -10th Defendants had lost any right to transfer the suit property, their rights having been extinguished by way of adverse possession in favour of plaintiff’s father John Ndichu Ngeru (deceased). It is further pleaded that the latter had been in possession of the suit property for a period of over 40 years without authority of the Defendants in an open manner.

3. The Plaintiff seeks the following orders;1. A declaration that the registration of the 1st-3rd Defendants as the owners of LR No. 209/223/6 was done fraudulently and an order for cancellation of the said registration.

2. Once prayer 1 above is granted, a further order that the Plaintiff be registered as the proprietor of LR No. 209/223/6 in place of the 5th -10th Defendants.

3. In the alternative to prayers 1 and 2;a.A declaration that the registration of the 1st-3rd Defendants as the owners of LR No. 209/223/6 was subject to the overriding interests of the deceased under Section 30(f) and (g) of the Registered Land Act (Repealed) and Section 28(h) & (j) of the Land Registration Act and/or that the registration has been extinguished by adverse possession.b.An order that the Plaintiff be registered as the proprietor of LR No.209/223/6 in place of the 1st-3rd Defendants.

4. A permanent injunction to restrain the Defendants by themselves, their servants, agents, employees and or anyone claiming under or through them from entering, remaining thereon, encroaching on, trespassing on, or transferring, charging, selling, alienating or in any other way whatsoever from interfering with the Plaintiff’s quiet enjoyment of Land Reference Number 209/223/6 or any portion thereof.

4. The plaintiff has filed a further affidavit sworn on 22. 11. 2017 in support of his case. He avers that he is the legal representative of the Estate of John Ndichu Ngeru who purchased the suit property from one Anwar Rashid(now deceased) who was also the father to the 4th-10th Defendants.

5. The 1st - 3rd Defendants opposed the suit vide the Replying Affidavit sworn by the 3rd Defendant on 16. 3.2017. He avers that by an agreement dated 17. 3.1999, the 4th -10th Defendants agreed to sell the suit property to them for ksh.1 million. The entire purchase price was then deposited with the firm of Muira & co. Advocates (now deceased) who was acting for the parties and the property was transferred to them by a transfer dated 22. 7.2013. On 29. 7.2017, the certificate of title to the suit property was updated to reflect that they are the registered proprietors of the property.

6. He also avers that the records at the Ministry of lands for the payment of land rent and at the Nairobi City County for the payment of land rates were amended to reflect the new ownership. He argues that it is evident that the deceased was a tenant on the suit property paying monthly rent thus adverse possession cannot be presumed.

7. The 4th -10th Defendants case was compromised by a consent recorded in court on 15. 11. 2018 to the effect that the 4th -10th Defendants do not contest the ownership of the suit property by the Plaintiff.

8. During the trial, the 1st defendant passed on (on 26. 10. 2020) and vide a consent dated 15. 11. 2021, he was duly substituted with Christopher Ndungu Mbugua.

9. The Plaintiff’s case was advanced by two witnesses. PW1, JOHN KINYUMU introduced himself as a deputy director at the National Registration Bureau in the ministry of Interior and National Government. He produced a report by the National Registration Bureau as P. Exhibit 35. It contains records of registered ID Numbers as they appeared in a document marked as DCM3 which is the 3rd Defendant’s replying affidavit sworn on 16. 3.2017. The analysis thereon related to the transfer of the suit properties from the 4th-10th defendants to the 1st -3rd defendants.

10. The analysis revealed as follows;1. That ID card No.4759543 was issued as a 2nd generation Identity card on 23. 11. 2017 and is held by one George Kipgetich Langat who was born in 1961 and hails from Buret District.2. That ID card No.9433112, is held by one Fredrick Kinyamu M’mbijiwe who was born in 1964 and hails from Meru Central District. It was a 2nd generation Identity Card issued to him on 9. 4.1997. 3.That ID Card No. 15659543 is none existent.4. That ID Card No.9957881 was issued to oneSolomon Soita Otwane who hails from Teso Districtborn in 1969. 5.That No.15237745 doesn’t exist in their records.6. That ID Card No,5318347 is held by one Alex Owino Agalo who hails from Kakamega District but he did not apply for a 2nd generation ID card therefore his computerized records were not on the record.7. That ID No.15992217 doesn’t exist.

11. Upon cross-examination, PW1 stated that he is not aware of any criminal proceedings against the 1st -3rd Defendants.

12. The plaintiff, GEORGE NJUNGE NDICHU, a son and administrator of the estate of John Ndichu Njeru (deceased) testified as PW2. He adopted as his evidence, the deceased’s affidavit sworn on 21. 5.2014 and his own Further Affidavit sworn on 22. 11. 2017 as his evidence. He produced documents in his list of documents dated 19. 5.2014 as P. Exhibit 1-9 and 25 documents in his 2nd list dated 22. 11. 2017 as P. Exhibit 10-34.

13. In the affidavit sworn on 21. 5.2014 by John Ndichu Njeru (deceased), he claimed that the 4th -10th Defendants were registered as proprietors of the suit property on 2. 11. 1971 and by that time, he was in possession of the suit land and despite the said Defendants becoming registered proprietors of the suit land, they did not ask him to vacate nor give him permission to continue in possession. He contended that he run a spare parts business on the suit property under the name Capital Auto spares & Garage since 1971 and would let parts of the suit property to 3rd parties. He paid ground rents and rates and has been sued and defended claims for rates as the owner.

14. He claimed that sometime in April 2014, he learnt that the suit property was transferred to the 1st - 3rd Defendants fraudulently. He pointed out that Paul Muira, an advocate who is purported to have witnessed the transfer document dated 22. 7.2013 used to transfer the suit property on had passed on in year 2012 and that the Identity card numbers and pin numbers used on the said transfer document are not genuine.

15. PW2 told the court that he wants the transfer to the 1st-3rd Defendants cancelled and the suit property transferred to him as the legal representative of his late father.

16. Upon cross-examination, PW1 stated that his late father purchased the suit property from Anwar Rashid (deceased) who was the father to the 4th-10th Defendants, but there was no sale agreement exhibited in his documents. He further stated that the current registered proprietors of the suit property are the 1st-3rd Defendants and that while he has reported the matter surrounding transfer of the suit property to them to the DCI, he is not aware of any criminal cases pending against the 1st -3rd Defendants.

17. PW2 also stated that his late father was not registered proprietor of the suit property though he had acquired it, but he had applied for registration of the lease.

18. Upon re-examination, PW2 stated that Anwar Rashid (deceased) is the one who gave his late father possession of the suit land and he had it from 1964. He added that his late father had authority to apply for extension of the lease and that the 4th - 10th Defendants who relocated to Canada have no complaint against his late father.

19. On the date set for hearing of the Defendant’s case, the Defendants failed to appear. The court having been satisfied that the Defendants were aware of the hearing date proceeded to close their case.

20. Subsequently, the Plaintiff filed written submissions dated 27. 4.2023. They raise a sole issue for determination being whether the registration of LR 209/223/6 in the names of 1st, 2nd and 3rd Defendants was done by fraud.

21. It is the Plaintiff’s submission that that the evidence of PW1 to the effect that Id numbers of persons who allegedly signed the transfer dated 22. 7.2013 belonged to persons other than those appearing on the transfer or the identity numbers did not exist at all demonstrates that the said transfer was fraudulent. He argues that the 4th - 10th Defendants by conceding to the Plaintiff’s claim affirm that they never transferred the suit property to the 1st - 3rd Defendants and since they failed to call any witnesses to counter the said evidence, registration of the suit parcel in the name of the 1st - 3rd Defendants was fraudulent.

Determination 22. The issues falling for determination are;a.Is the transfer of LR 209/223/6 to the 1st-3rd Defendants fraudulent?b.Whether the Plaintiff is entitled to the suit land by way of adverse possession as an alternative prayer.

23. The Plaintiff claims that his father John Ndichu Ngeru (deceased) purchased the suit land from one Anwar Rashid(deceased) who was father to the 4th-10th Defendants. The letter dated 14. 2.1996 which is at page 15 of the Plaintiff’s supplementary documents dated 22. 11. 2017 addressed to John Ndichu Ngeru (deceased) by Anwar Rashid (Deceased) points to a sale transaction of the suit land between the two persons. The letter states in part, “… It is only the transfer remaining as you have not cleared the payment as you pay by installments.”

24. It is not clear whether the purchase price was paid in full. Nevertheless, the claim of the plaintiff was admitted by the 4th - 10th defendants in the consent dated 15. 11. 2018.

25. At the time the lease to the 4th-10th Defendants was coming to an end around the year 2002, there are numerous correspondences indicating that the lease would be renewed to John Ndichu Njeru (deceased). The Ministry of Lands wrote to Ndichu vide the letter dated 25. 8 .2003 approving extension of the lease of the suit land to him.

26. The 1st - 3rd Defendants claim that they purchased the suit property from the 4th -10th Defendants vide a sale agreement dated 17. 3.1999 and the transfer dated 22. 7.2013. However, the 1st - 3rd Defendants’ pleadings were not subjected to prove in evidence during the trial. What more, Pw1 analysed the Identity cards allegedly used to transfer the suit property which ID numbers ostensibly belonged to the 4th - 10th Defendants and found that some of the identity cards did not exist while others belonged to other persons and not the 4th-10th defendants!

27. Further, the transfer is said to have been witnessed by Paul Muira Advocate who according to the Law society of Kenya’s letter dated 9. 5.2014 passed away on 5. 12. 2012.

28. Under Section 26(1) of the Land registration Act, a certificate of title can be revoked on the ground of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

29. In the case of Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & Another [2013] eKLR it was held that:“…title to the 1st Defendant was obtained illegally, unprocedurally or through a corrupt scheme… I am satisfied that the provisions of Section 26(1)(b) have been met… I therefore proceed to cancel the title of the 1st defendant and his registration as proprietor of the suit land…”.

30. Similarly in the case of Esther Ndegi Njiru & another v Leornard Gatei [2014] eKLR the court stated that“… “Under Section 26(1)… such title however may be challenged on the ground of fraud or misrepresentation to which the proprietor is proved to be a party…”

31. I find that the transfer of the suit land dated 22. 7.2013 to 1st - 3rd defendants is fraudulent and a sham. I therefore conclude that the 1st - 3rd Defendants obtained registration of the suit land fraudulently and the said titles ought to be cancelled.

32. Since the persons who owned the suit property before the fraudulent registration were the 4th -10th defendants who have admitted to the claim of the plaintiff, then the suit property ought to be transferred to the estate of the initial plaintiff noting that the Grant issued to the current plaintiff on 11. 5.2015 was limited to the prosecution of this suit.

33. I also find that the analysis of the alternative claim of adverse possession is unwarranted in view of the findings that the 1st - 3rd defendants had acquired the suit land fraudulently.

Final orders. 1. A declaration is hereby issued to the effect that the registration of the 1st-3rd Defendants as the owners of LR No.209/223/6 was done fraudulently.

2. An order is hereby issued for cancellation of the registration of 1st-3rd Defendants as the owners of parcel LR No.209/223/6.

3. An order is hereby issued for the registration of the suit property LR No. 209/223/6 in the name of the Estate Of John Ndichu Ngeru.

4. The 1st -3rd defendants are hereby condemned to pay costs of the suit to both the plaintiff and the 4th -10th defendants.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF JUNE, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-M/s Muya holding brief for Mr. Kingati for plaintiffCourt Assistant: Philis