[2023] KEELC 16432 (KLR)

Ndungu v Ndungu & 2 others (Environment & Land Case 8 of 2020) [2023] KEELC 16432 (KLR) (8 March 2023) (Judgment)

Neutral citation: [2023] KEELC 16432 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 8 of 2020

A Nyukuri, J

March 8, 2023

Between

Monica Rwinu Ndungu

Plaintiff

and

Edward Kamau Ndungu

1st Defendant

Land Registrar Machakos

2nd Defendant

The Hon Attorney General

3rd Defendant

Judgment

1. By a Plaint dated 28th January 2020, the Plaintiff sought for judgment against the Defendants for the following orders;a.A declaration that the land known as Title Number Donyo Sabuk/Donyo Sabuk West Block 1/234 belongs to the Plaintiff.b.An order directing the 2nd Defendant to rectify the records on the green card of the land known as Title Number Donyo Sabuk/Donyo Sabuk West Block 1/234 by cancelling the title issued to the 1st Defendant to reflect the name of the Plaintiff, Monica Rwinu Ndungu, who is the bonafide owner while doing so to dispense with the 1st Defendant’s personal documents or any other statutory requirements.c.Costs of the suit together with interest thereon at court rates.d.General damages.e.Any such order or further relief as this Honourable court may deem appropriate.

2. It was the Plaintiff’s averment in the Plaint that the Plaintiff and the 1st Defendant were beneficiaries of the estate of Ndungu Mugo (deceased) and that the certificate of confirmation of Grant in Thika Succession Cause Number 319 of 1997 named her as the sole beneficiary of the estate of Ndungu Mugo (deceased). Further that none of the beneficiaries including the 1st Defendant raised any objection. That the grant was issued on 30th October 1998.

3. According to the Plaintiff, among the deceased’s property was a share in Muka Mukuu Farmers Cooperative Society Limited, which was later registered as Donyo Sabuk/Donyo Sabuk West Block 1/234 (suit property).

4. It was the Plaintiff’s further averment that in July 2019, the Plaintiff discovered that the 1st Defendant secretly without her knowledge illegally acquired the title deed of the suit property being property in respect of share number 2079 for plot Number 5–022, which prompted the Plaintiff and other beneficiaries to lodge a caution on the title. That the caution provoked the 1st Defendant to seek rectification of grant, but that the application for correction of grant was dismissed for lack of merit.

5. She sought to have the Defendant’s title cancelled and that the property be registered in her name as per the confirmation of grant. The Plaintiff further pleaded fraud as against the 1st and 2nd Defendants alleging that the 1st Defendant presented forged documents to the Land Registrar Machakos to effect fraudulent issuance of a title deed and alleged that the 2nd Defendant fraudulently registered and issued a title deed to the 1st Defendant without involving the Plaintiff who was the sole beneficiary of the estate of the deceased.

6. The 1st Defendant filed defence dated 19th March -2020. He alleged that the deceased’s share in Muka Mukuu Farmers Cooperatives Society Limited was given to him during the deceased’s lifetime and therefore does not form part of the deceased’s estate. He maintained that the same was a gift inter vivos and stated that the suit property was transferred to him by Muka Mukuu Farmers Cooperative Society Limited after it was established from the society’s documents that the deceased had transferred the same to the 1st Defendant. He denied the particulars of fraud attributed to him and stated that the Plaintiff was not entitled to the orders sought.

7. The 2nd and 3d defendants never entered appearance despite service.

Plaintiff’s Evidence 8. PW1, Monica Rwinu Ndungu who was the Plaintiff in this matter adopted her witness statement dated 28th January 2020 as her evidence in chief. It was her testimony that she was the sole beneficiary to the estate of the late Ndungu Mugo as per the certificate of confirmation of grant issued on October 30, 1998 which confirmation was not objected to by all the beneficiaries including the 1st Defendant.

9. It was her evidence that in July 2019, she called all her children who were beneficiaries to the estate of the deceased for purposes of redistributing the assets of the estate of the deceased which had been vested in her. That it is at that meeting that she was informed by the 1st Defendant that the share No. 2079 of Muka Mukuu Farmers Cooperative Society Limited had been gifted to him by the deceased. That this prompted her with her other children to inquire the matter at Muka Mukuu Farmers Cooperative Society Limited and they discovered that in 2007, the 1st Defendant applied for the transfer of the share, and that there was an endorsement in Ndungu Mugo’s Share Certificate nominating the 1st Defendant. According to the Plaintiff, the endorsement was forged, as the 1st Defendant was once an employee of Muka Mukuu Farmers Cooperative Society Limited and that he tempered with the share certificate to have it transferred to him.

10. The Defendant also testified that the investigation led them to find the original share certificate issued on April 18, 1983 which bore the name of the 1st Defendant’s wife, one Elizabeth Njeri Kamau as Mr. Ndungu Mugo (deceased’s) next of kin and that therefore this was a failed attempt to illegally transfer the share to the 1st Defendant’s wife.

11. The Plaintiff complained that the 1st Defendant proceeded to fraudulently transfer the share of the deceased to himself due to his employment at Muka Mukuu Farmers Cooperative Society Limited knowing fully that there was a confirmation of grant vesting the said share to the Plaintiff. She maintained that the transfer should have been guided by the confirmed grant.

12. She further stated that in 2013, the 1st Defendant without the knowledge of the holder of the grant or other beneficiaries, proceeded to sell another Plot No. Mithini Central No. 157 allocated to the deceased.

13. The Plaintiff stated that in 2016, the 1st Defendant proceeded to acquire a title deed for the suit property and after the beneficiaries of the deceased’s estate placed a caution on the title, it’s when the 1st Defendant rushed to court to seek for rectification of grant, but that his application was dismissed for lack of merit on 1December 9, 2019.

14. The Plaintiff produced a certificate of confirmation of grant dated 30th October 1998 in Thika P & A Succession Cause No. 319 of 1997, as P-Exhibit 1, what she referred to as forged share certificate dated 18th April 1983 for share No. 5-022 in favour of Ndungu Mugo as P-Exhibit 2, copy of original share certificate as P-Exhibit 3, copy of share Transfer form dated 30th October 2007 as P-Exhibit 4, application to Land Control Board as P-Exhibit 5, letter from Mukaa Mukuu Farmers’ Cooperative Society as P-Exhibit 6, Title deed for suit property as P-Exhibit 7, copy of ruling dated 19th December 2019 as P-Exhibit 8 and Copy of Notice of Intention to sue as P-Exhibit 9.

15. On cross-examination, she stated that the 1st Defendant was her son and he lives on the suit land while she lives in Mangu, as she had two parcels, one in Mangu and another being the suit property. She stated that she lived with her husband until he died and that although the 1st Defendant lived on the suit property, he got registered as proprietor thereof by fraud. In re-examination she stated that although the 1st Defendant lives on the suit property, he had not been given the property by any one. She also stated that at the time of the death of her husband they were not separated.

16. PW2, Antony Nguku Ndungu adopted the contents of his witness statement dated January 28, 2020 as his evidence in chief. It was his testimony that he was the Plaintiff’s son and that in July 2019 the Plaintiff called for a family meeting with intention to re-distribute the assets for the estate of the deceased and that, that was the time the 1st Defendant informed the beneficiaries that he was gifted the suit property by the deceased and that the property should not have formed part of the deceased’s estate.

17. He further testified that together with his brothers, he was immediately instructed by the Plaintiff to proceed to Mukaa Mukuu Farmers C0operative Society Limited that is when he discovered that in 2007, the 1st Defendant had applied for transfer of the share to him. He stated that he also learnt of an alleged endorsement on the deceased’s Share Certificate nominating the 1st Defendant and that he believes the endorsement was forged in favour of the 1st Defendant as he was once an employee of Mukaa Mukuu Farmers Cooperative Society Limited and that he tampered with the Share Certificate. He stated that at Mukaa Mukuu, they also found a copy of the original certificate issued on April 18, 1983 which indicated the 1st Defendant’s wife is Elizabeth Njeri Kamau as the deceased’s next of kin.

18. He stated that the transfer of the share to the 1st Defendant was fraudulent and that in 2013 the 1st Defendant transferred Plot No. Mithini Central No. 157 allocated to the deceased. He maintained that the 1st Defendant acquisition of the title was unlawful and that they placed a caution on the title.

19. In cross-examination, he stated that he lives in Nairobi and his mother, the Plaintiff lives in Mangu, while the 1st Defendant has lived on the suit property for long. He also stated that when their father died, it was the 1st Defendant who kept all the documents and that they only knew of the forgery in 2019. In re-examination he maintained that the suit property was bought by his mother and his father and that his mum used to live on the property. He stated that as the children of the deceased they have a right over the suit property. That marked the close of the Plaintiff’s case.

Defendants’ Case 20. DW1, Edward Kamau Ndungu who is the 1st Defendant herein confirmed that the Plaintiff was his biological mother. It was his evidence that he had lived on the suit property since 1988 and that his mother used to come there once in a while. The witness adopted his witness statement dated March 19, 2020 as his further evidence in chief. He testified that his father used to live on the suit property while the Plaintiff used to live in Mangu in Kiambu County. That in 1988, his father asked him to move to the suit property and put up his home there. That he lived on the land with his family. According to him, together with his wife, he took care of his father until he died on May 23, 1997.

21. It was the testimony of DW1 that in 1992, his father had asked for his identity card to transact some business with it at Mukaa Mukuu Farmers Cooperative Society Limited and that he did not understand what that meant.

22. He confirmed that his mother applied for grant of letters of administration and that like all other heirs he consented to the petition. That the suit property was not explicitly specified in the certificate by confirmation of grant. He faulted the confirmed grant that it gave the entire estate to the Plaintiff which according to him is against the law. That he later learnt from the offices of Mukaa Mukuu Farmers Cooperative Society Limited that the deceased share had been transferred to him as a nominee. That he paid the requisite fees and the share was transferred to him. He denied acting fraudulently. He maintained that the suit property was willed out inter vivos and does not form part of the deceased’s estate.

23. The witness produced the same documents produced as P-Exhibit 2, P-Exhibit 4 and P-Exhibit 7 as his exhibits.

24. In cross-examination, he stated that he had been employed by Muka Mukuu Farmers Cooperative Society Limited and that in 2013 he resigned. He stated that the suit property is in relation to the share of Muka Mukuu Farmers Cooperative Society Limited and that the land was bought in 1969, which property he never contributed to the purchase thereof. He further stated that he used to stay with his mother in Mangu and that in 1988 his father told him to stay in Mukaa Mukuu and that there was nothing written as evidence that he was told by his father to move to Mukaa Mukuu. He stated that his father gave him permission to build on the suit property. He also stated that he signed the transfer form transferring the land from his father to himself, which he confirmed to be P-Exhibit 4. He stated that the transfer form was dated 30th October 2007, and that his father died on 23rd May 1997.

25. The witness further stated that in 2007, he was summoned by Mukaa Mukuu Farmers Cooperative Society Limited, but he stated that he did not have the letter summoning him. He stated that at Mukaa Mukuu Farmers Cooperative Society Limited, they showed him P-Exhibit 2 which is a document showing the share and Membership Number of the deceased. He confirmed that the document has his name.

26. That witness also confirmed that Elizabeth Njeri Kamau used to be his wife but that she died. On being shown P-Exhibit 3, the witness stated that he did not know the circumstances under which his wife’s name was indicated on the said document. When referred to P-Exhibit 5, he stated that he did not know Francis Mutunga Kimata. He maintained that he transferred the property to another person and not to Francis Mutunga. He confirmed that he was not the one who bought the land which he transferred to Francis Mutunga.

27. When referred to the certificate of grant produced by the Plaintiff, the witness confirmed that he knew the document and that he participated in the succession case indicated in the confirmation of grant. He stated that he agreed to the confirmation. Further, that he was made a nominee of his late father as shown in P-Exhibit 2. He stated that he was not aware that there is a standard form for nomination known as Form Number 7. He also stated that he was not aware that the form needed attestation by two witnesses as he only had one witness. He also stated that he was not aware he needed the register of nomination.

28. In re-examination, he stated that when his father asked his identity card in 1992, he did not establish the reason. He stated that he was summoned at Mukaa Mukuu Farmers Cooperative Society Limited in 2007 and that, that was when the transfer form was filled. He stated that he participated in the Succession Cause but that he did not know that the suit property was included.

29. DW2, John Nzioki Kiluki testified that he once worked at Mukaa Mukuu Farmers Cooperative Society Limited as a Registration Manager. He adopted the contents of his witness statement dated 19th March 2020 as his evidence in chief. He testified that while working at Mukaa Mukuu Farmers Cooperative Society Limited he handled a transaction involving the 1st Defendant. That he knew the 1st Defendant’s father and that the deceased gave him the name of his nominee as that of the 1st Defendant. He confirmed that he was the one who prepared and signed the form produced as P-Exhibit 4. He stated that the deceased told him that the share was the 1st Defendant’s property and he stated that the land was left to the 1st Defendant.

30. It was his testimony that he knew the 1st Defendant after the death of his father and that he had been an administration Manager at Mukaa Mukuu between 1992 and 2006. Further that he had worked there earlier as a clerk from 1976 until he became an Administration Manager.

31. The witness confirmed that the Plaintiff’s father was a shareholder at Muka Mukuu Farmers Cooperative Society Limited. That in 1982, they began sharing the land to members and asked every member to indicate particulars of their next of kin. That the deceased had one share of 2. 98 hectares. According to him, on 16th March 1992, the deceased went to his office and provided the particulars of the next of kin as everybody else. That he indicated the 1st Defendant as his next of kin and that he thumbprinted the next of kin form and that he signed on the form as a witness. He stated that the 1st Defendant was owner of the suit property.

32. On cross-examination, the stated that he knew the 1st Defendant after the death of his father as he came to follow up on his father’s land. He stated that the 1st Defendant came on his own and no letter was written to invite him to Muka Mukuu Farmers Cooperative Society Limited. He stated that he worked at Muka Mukuu Farmers Cooperative Society Limited from 1976 to 2006 and understood how the society ran.

33. On being referred to P-Exhibit 2, he stated that he signed the document but that his name was not on the document, it was only his signature. He further testified that when it comes to nomination, it is the owner of the property who nominates. He confirmed that there was a register of nomination but that the same was not before court. He stated that he was not the one who designed the nomination form and that Muka Mukuu Farmers Cooperative Society Limited was still in operation. With this evidence the defence case was marked as closed.

34. Parties were directed to file submissions. On record are the Plaintiff’s submissions filed on May 11, 2022 and the 1st Defendant’s submissions filed on May 6, 2022.

Plaintiff’s Submissions 35. Counsel for the Plaintiff regurgitated the Plaintiff’s evidence and submitted that the 1st Defendant transferred the deceased’s share to himself and subsequently proceeded to execute a land transfer on the basis of the flawed nomination. That the transferred property was part of the deceased’s estate and subject of a confirmed grant which he had consented to, hence the transfer was contrary to the grant issued by the Succession Court.

36. On whether the alleged nomination was valid, counsel argued that other than a hand written document that the 1st Defendant claims was signed by the deceased there were no witnesses and no register of nomination was produced. Counsel argued that the law in force then required that a nomination ought to have been attested by two witnesses and a register of nomination kept by the society. Counsel also pointed out that the nomination was done after the death of the deceased. Counsel relied on the case of Samuel Kimaru Wachira & Another (suing as Administrators and Legal Representatives of the Estate of Philip Wachira Koigi (deceased) v. Kanja Wachira Koigi [2021] eKLR, for the proposition that a register of nomination must be produced to prove nomination.

37. Counsel contended that Muka Mukuu Farmers Cooperative Society Limited was in operation and therefore the witness ought to have produced a register of nominees and that no current office bearer was called as witness. On whether the 1st Defendant was summoned by Muka Mukuu Farmers Cooperative Society Limited, counsel argued that DW2 in cross-examination denied those allegations by the 1st Defendant and alleged that the 1st Defendant went to Muka Mukuu Farmers Cooperative Society Limited on his own volition to follow up on his father’s share.

38. It was further argued that the attempt to transfer the suit property to the 1st Defendant’s wife was to defeat justice. Counsel also argued that the 1st Defendant was temporarily allowed to use the suit property which belonged to the whole family. Counsel relied on the ruling in Thika Succession Cause No. 319 of 1997 to state that the 1st Defendant attempts to get the suit property were defeated in court.

39. On whether the Plaintiff was deserving of the orders sought counsel argued that the 1st Defendant consented to the confirmed grant and there after falsified the nomination to make him a beneficiary of the suit property. Further that the Plaintiff produced a certificate of confirmation of grant showing he was the wife and sole heir of the late Ndungu Mugo. That the Plaintiff’s testimony was confirmed by the 1st Defendant hence the being entitled to the orders sought. Counsel therefore argued that the Plaintiff was the rightful owner of the suit property.

Defendant’s Submissions 40. Counsel for the 1st Defendant submitted that it was not in dispute that the Plaintiff was the 1st Defendant’s mother, that the deceased was living with the 1st Defendant and that the suit property was issued by Muka Mukuu Farmers Cooperative Society Limited. Counsel submitted that what was in dispute was whether the 1st Defendant fraudulently transferred the suit property to himself.

41. It was argued for the 1st Defendant that if the 1st Defendant had forged the documents herein, criminal proceedings should have been instituted. Counsel stated that this court could not find that there was fraud in the absence of a criminal conviction. According to counsel, the 1st Defendant proved that the suit property was given to him by the deceased inter vivos and that DW2 corroborated the 1st Defendant’s evidence.

42. Counsel argued that the 1st Defendant was the first registered proprietor of the suit property and that under sections 27, 28 and 143 of the Registered Land Act (repealed), first registration is indefeasible and reliance was placed on the decision of Ambale vs. Masolia (1976) eKLR to buttress that argument. Counsel argued that although the 2nd and 3rd Defendants were parties in this case they did not participate in these proceedings and therefore no judgment can be entered against them. Counsel concluded that the Plaintiff failed to prove that the 1st Defendant obtained title to the suit property by fraud.

Analysis and Determination 43. I have carefully considered the pleadings, evidence and submissions in this matter. The issues that emerge for determination are;a.Whether the Defendant obtained registration of the suit property by fraud andb.Whether the Plaintiff is deserving of the orders sought.

44. It is not in dispute that the Plaintiff is the widow of the late Ndungu Mugo and the administrator of the deceased’s estate, while the 1st Defendant is one of their sons. It is also not disputed that the suit property is in respect of a share owned by the decease as a member of Muka Mukuu Farmers Cooperative Society Limited. It is further not disputed that a confirmed grant was issued to the Plaintiff vesting all the deceased’s properties to the Plaintiff as the sole beneficiary with the consent of all her children including the 1st Defendant. It was also not contested that the deceased’s share at Muka Mukuu Farmers Cooperative Society Limited was devolved to the Plaintiff vide the confirmed grant.

45. It appears that the Plaintiff was made the sole heir of the entire estate of the late husband with intention to redistribute the estate later on in future, as she testified that in July 2019, she held a meeting with her children with the intention of redistributing the deceased’s estate. Therefore, she was merely holding the entire estate for herself and also in trust for her children.

46. The Plaintiff testified that in July 2019 when she learnt from the 1st Defendant that he alleged to have been gifted the suit property by his father, she set out to investigate the truth of that allegation by visiting Muka Mukuu Farmers Cooperative Society Limited where she obtained the documents she produced as exhibits herein. The 1st Defendant did not dispute that those documents were the basis of his ownership and registration of the suit property. In fact, he relied on and produced as his own exhibits, exhibits produced by the Plaintiff as P-Exhibits 2, 4 and 7. These were the Share Certificate which the Plaintiff referred to as a forged Share Certificate, copy of transfer form and the title deed.

47. Therefore, the question that this court must address is whether the Plaintiff proved fraud as against the 1st Defendant.

48. The Black’s Law Dictionary 11th Edition define fraud as follows;A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.

49. Therefore, fraud means deliberately making a false representation or concealing relevant facts for the sole purpose of obtaining an advantage over another.

50. Any one alleging fraud has the onus and burden to prove it. Where fraud is pleaded, it must also be proved and not to be left to inference. In the case of Vijay Morjaria V. Nan Singh Madhusingh Darbar & another [2000] eKLR, the Court of Appeal held 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 as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.

51. It is now settled law that the standard of proof of fraud in a civil suit is that of beyond a balance of probabilities but not beyond reasonable doubt. I therefore disagree with the 1st Defendant’s submissions that fraud in a civil case can only be proved by evidence of a criminal conviction. This is because the standard of proof in criminal cases is beyond reasonable doubt while fraud in a civil case is a tort, albeit of a serious nature. In the case of Central Bank of Kenya Limited vs. Trust Bank Limited & 4 Others [1996] eKLR the Court of Appeal held as follows;The Appellant has made vague and very general allegations of fraud against the Respondent. Fraud and conspiracy to defraud are very serious allegations. The onus of prima facie proof was much heavier on the Appellant in this case than in an ordinary civil case.

52. In imputing fraud on the part of the 1st Defendant, the Plaintiff pleaded that the 1st Defendant presented forged documents to the District Lands Registrar Machakos to effect fraudulent issuance of the title deed. She also pleaded that by not being involved in the registration of the suit property when she was the sole beneficiary of the suit property the 2nd Defendant fraudulently registered the suit property in the 1st Defendant’s name.

53. To prove the above allegations of fraud, the Plaintiff produced a certificate of Confirmed Grant which showed that the share of the deceased at Muka Mukuu Farmers Cooperative Society Limited devolved to the Plaintiff as the sole proprietor and pointed out that the 1st Defendant confirmed that he consented to the confirmed grant. The Plaintiff therefore produced documents she obtained from Muka Mukuu Farmers Cooperative Society Limited in her quest to find out the circumstances that led to the 1st Defendant’s registration as proprietor of the suit property. The first document which was relied upon and produced by the 1st Defendant was the Share Certificate which showed that the deceased was member Number 2079 and that he joined Muka Mukuu Farmers Cooperative Society Limited on 11th August 1969. While that document is in print with filling spaces filed in ink; at the back of the document are hand written notes as follows;My Nominee is my son Mr. Edward Kamau Ndungu ID/4921024/67L.H.T. R.T.H SignedSigned Signed 16/3/92I, Edward Kamau Ndungu nominee to this ……………………is my sonPatrick Ndungu Kamau – UnderageSigned R.T.P signed30/10/07 L.T.P SignedIn presence ofM. KitaviSigned by Signed14/11/07Edward Kamau Ndungu

54. This is the document the 1st Defendant relied on as showing that he was the nominee of his father. I have considered the document and I note that the alleged nomination by the deceased was allegedly done on 16th March, 1992 and there was no name, Identity Card Number or share number of the nominating member. Besides, there were no witnesses who witnessed the nomination. Then there is subsequent nomination allegedly by the 1st Defendant nominating his underage son one Patrick Ndungu Kamau, on October 30, 2007.

55. I note that section 39 (1) of Cooperative Societies Act No. 12 of 1997 provides for transfer of share or interest of a deceased member as follows;1)On the death of a member, a Cooperative Society may transfer the share or interests of the deceased member to –a.The person nominated in accordance with this Act and any rules made thereunder; orb.If there is no person so nominated, such person as may appear to the committee of the society to be the personal representative of the deceased member; orc.If either of such persons is not qualified under this Act and any rules made there under or the by laws of such society for membership, such person, specified by the nominee or personal representative as the case may be, who is so qualified, or may pay to such nominee or personal representative, as the case may be, a sum representing the value of such member’s share or interest ascertained in accordance with any rules made under this Act or by laws of the society;Provided thati.….ii.….

56. It therefore follows that where a member dies, the deceased member’s shares are transferred to the deceased’s nominee. The appointment of the nominee must be within the records of the society as the nominee takes priority over a personal representative of the deceased’s estate.

57. Rule 32 of theCooperative SocietiesRules 2004, provides for appointment of nominees as follows;1. Every member of the society may appoint his nominee or nominees for the purposes of section 39 of the Act.2. ….3. ….4. Every appointment of a nominee by any member of a Co-operative Society shall be made in writing and signed by the member in the presence of two witnesses and shall be in form VII set out in the schedule to these rules.5. Every appointment of nominee shall be acknowledged by the society.

58. Therefore, as of November 5, 2004, when the societies Rules came into operation, appointment of a nominee ought to have been backed up by an acknowledgment by the society. Under rule 32 (10) of the Societies Rules 2004, where a member cancels nomination, by appointing a new nominee, the necessary alteration ought to be made in the register of members.

59. Rule 13 of the Cooperative Societies Act provides for the books/records to be kept by the society as follows;13(1)A Cooperative Society shall keep up the date and in proper business-like manner such accounts and such books as the Commissioners may from time to time direct either generally or in respect of any particular society or class of societies.(2)Notwithstanding paragraph 1 of this rule, every Cooperative Society shall keep the following books;i.….ii.….iii.….iv.The appointment, if any of his nominees in accordance with Rule 32 of these rules.

60. It is therefore clear that among the records kept by any Cooperative Society are a register of members which shows the appointment of their nominee. Where a member of a Cooperative Society dies, it is the responsibility of the society to transfer the deceased member’s shares to their nominee. This nominee’s name is to be found in the register of members, in respect of the deceased member. It is only where there is no nominee that the transfer of shares of a deceased member can be made to the personal representative of their estate.

61. In the instant suit, the 1st Respondent testified in cross examination that his father died on May 23, 1997. I note from the certificate of confirmation produced by the Plaintiff that the grant was confirmed on 30th October 1998. The evidence for transfer of the deceased’s share, which was an exhibit relied upon by both the Plaintiff and the 1st Defendant, was allegedly prepared by the society on October 30, 2007.

62. There is no evidence that the nomination of the 1st Defendant was acknowledged anywhere by the society herein or evidence of a record of such nomination in the register of members as having been kept by the society. As a nominee takes priority over a personal representative of the deceased person, I do not think that their nomination would be as casual as depicted in the hand written notes behind the document produced as Plaintiff/Defendant –Exhibits 2. In addition, there is no witness indicated as having witnessed the appointment and no endorsement by the society herein. In the premises I am not convinced that the 1st Defendant was nominated by the late Ndungu Mugo as his nominee. It is therefore my finding that the alleged nomination was fraudulent. In addition, Plaintiff/Defendant –Exhibit 2 shows that on March 16, 1992 he was appointed as nominee by his late father, and that on October 30, 2007, the 1st Defendant nominated his minor son one Patrick Ndungu Kamau in the presence of one M. Kitavi whose identity card number is not indicated. That is also the same day when he signed the transfer of shares from his late father to himself. While the 1st Defendant testified that he was summoned to Muka Mukuu Farmers Cooperative Society Limited in 2007 and that is when he was told he was the nominee of his late father, DW2 stated that the 1st Defendant was not summoned but came on his own volition to follow up on his father’s share. This shows that the 1st Defendant was not truthful.

63. The 1st Defendant stated that he knew as early as 2007 that he was a nominee of his late father, however, it is only on 7th August 2019, that he filed his application dated 2nd August 2019 seeking to remove the shares of Muka Mukuu Farmers Cooperative Society Limited from the schedule of assets in the certificate of grant made to his mother, the Plaintiff. There is no reason given why he did not move the court in 2007 when he allegedly became aware of his nomination. According to the ruling made on 19th December 2019 in Thika Succession Cause No. 319 of 1997 (P-Exhibit 8), the 1st Defendant contended that the share at Muka Mukuu Farmers Cooperative Society Limited was bequeathed to him by his late father before his death. In the said ruling the court dismissed the application having considered the purported nomination herein. It is therefore clear that the 1st Defendant’s efforts to remove the suit property from the list of assets granted to the Plaintiff were unsuccessful. The ruling of the court in Thika Succession Cause No. 319 of 1997 dated 19th December 2019 has not been set aside or appealed against and is therefore the final determination on who should own the suit property which is in respect of the share of the deceased at Muka Mukuu Farmers Cooperative Society Limited.

64. The 1st Defendant’s argument that it is unlawful for the Plaintiff to get the entire estate of her late husband, is an argument in the wrong court/forum as that argument ought to have been raised in the Succession Court. In any event that is a dishonest contention as the 1st Defendant gave consent to the confirmed grant and in the words of the Magistrate in the Succession Cause “In fact, it is the Applicant’s signature that appears first on the consent list.” In his evidence, the 1st Defendant confirmed that he consented to the share of Muka Mukuu Farmers Cooperative Society Limited to devolve to the Plaintiff. It is therefore my finding that his registration as proprietor of the suit property on 13th May 2016 was fraudulent, illegal and contrary to the certificate of confirmation dated 30th October 1998 and upheld on 19th December 2019.

65. The 1st Defendant argued that he was the first registered owner of the suit property and therefore his title cannot be challenged by dint of section 143 of the Registered Land Act (Cap 300) (Repealed). In that regard, I note that the 1st Defendant was registered on May 13, 2016. That registration was pursuant to the provisions of the Land Registration Act No. 3 of 2012, whose date of commencement was May 2, 2012. As the registration was done in 2016, section 143 or any other section of the Registered Land Act (Cap 300 Laws of Kenya) (Repealed) does not apply. The applicable law is the Land Registration Act No. 3 of 2012.

66. Under Section 26 of the Land Registration Act, a title can be challenged on the ground of fraud, misrepresentation, illegal, unprocedural or corrupt acquisition. Under Section 80 of the same Act, this court has power to order rectification of the register by directing that any registration obtained, made or omitted fraud or mistake, be cancelled or amended.

67. In the instant suit, the 1st Defendant was aware that by virtue of the certificate of confirmation of grant made on October 30, 1998, the suit property was to be registered in the name of the Plaintiff, but he went ahead to register himself as proprietor without proof that Muka Mukuu Farmers Cooperative Society Limited held a register of members indicating that he was the nominee of the late Ndungu Mugo. Even his subsequent attempt after registration to remove the suit property from the list of the assets of the deceased’s estate that devolved to the Plaintiff, was unsuccessful.

68. The Plaintiff having demonstrated that she lawfully acquired the suit property through succession, in a process where the 1st Defendant gave his consent, and the latter having failed to remove the suit property from the list of assets devolved to the Plaintiff, it is my finding that the Plaintiff has demonstrated that the suit property belongs to her and that the 1st Defendant’s registration was fraudulent and illegal and ought to be cancelled.

69. In the premises, I find and hold that the Plaintiff has proved her case on the required standard and I enter judgment for her against the Defendants as follows;a.A declaration be and is hereby made that the land known as Title Number Donyo Sabuk/Donyo Sabuk West Block 1/234 belongs to the Plaintiff.b.An order be and is hereby issued directing the 2nd Defendant to rectify the records on the green card of the land known as Title Number Donyo Sabuk/Donyo Sabuk West Block 1/234 by cancelling the title issued to the 1st Defendant, to reflect the name of the Plaintiff, Monica Rwinu Ndungu, who is the bonafide owner while doing so to dispense with the 1st Defendant’s documents or any other statutory requirements.c.As the parties herein are mother and son, I order that each party shall bear their own costs.

70. Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 8THDAY OF MARCH, 2023 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORMA. NYUKURIJUDGEIn the Presence of;Mr. Gitonga for PlaintiffNo appearance for DefendantsMs Josephine - Court Assistant