[2019] KEELC 2637 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELCC NO. 449 OF 2017

(FORMERLY NAIROBI ELCC NO.190 OF 2011)

DR. NEHEMIAH KIMATHI...........................................1ST PLAINTIFF

STELLA NKATHA MWIRARIA..................................2ND PLAINTIFF

-VERSUS-

GRACE WAMBUI MURIUKI.....................................1ST DEFENDANT

MARY NG’ENDO TIBA.............................................2ND DEFENDANT

JACQUELINE PAULINE WAIRIMU THARAO....3RD DEFENDANT

RUTH WANJIRU THARAO......................................4TH DEFENDANT

MUNGAI MBURU.....................................................5TH DEFENDANT

MARGARET NJOKI RUITHA................................6TH DEFENDANT

DAVID ODANGA.......................................................7TH DEFENDANT

DANIEL KURIA WAWERU.....................................8TH DEFENDANT

OPONDO OTIENO PATRICK..............................9TH DEFENDAANT

GRACE KANGAI GACICI....................................10TH DEFENDANT

SAMUEL KIARIE MBURU...................................11TH DEFENDANT

COMMISSIONER OF LANDS..............................12TH DEFENDANT

DISTRICT LAND REGISTRAR, THIKA...........13TH DEFENDANT

JUDGMENT

1. The original plaintiff Hon. Daudi Mwiraria (deceased) originated this suit by way of a plaint (Multi Track) dated 4th November, 2011 against 2nd, 12th and 13th defendants and as amended on 12th June 2011 to include the 1st, 3rd, 4th, 5th, 6th,7th,8th to 11th defendants. On 21st March, 2018, the court allowed an application by way of a notice of motion dated 15th December 2015 for further amendment of the amended plaint to substitute the Deceased. Thus, by a further amended plaint dated 26th March 2018 and filed on 28th March, 2018, the present plaintiffs namely Dr. Nehemiah Kimathi (1st plaintiff) and Stella Nkatha Mwiraria (2nd plaintiff) are seeking the following orders;

a. A permanent injunction restraining the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th defendants whether by themselves, their agents, their servants and/or assigns or anybody claiming through them or under them from alienating, developing, transferring, leasing, charging or in any manner whatsoever interfering with the plaintiff’s quiet user and possession of LR.NO RUIRU/RUIRU EAST BLOCK 7/53.

b. A declaration that the title deeds purportedly held by the 2nd to 11th defendants are false and were fraudulently obtained or in the alternative, if the said certificates were issued by the District Lands Registrar, Thika then they are accordingly unlawful, invalid null and void and/or more specifically that:

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/298 and issued to the 3rd efendant is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/299 and held by the 4th defendants is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/300 and held by the 5th and 6th defendants is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/301 and held by the 7th defendant is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/302 and held by the 8th defendant is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/303 and held by the 9th defendant is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/304 and held by the 10th defendant is false and fake and is otherwise unlawful, invalid, null and void,

The title deed purportedly registered as LR NO. RUIRU/RUIRU EAST BLOCK 7/305 and held by the 11th defendant is false and fake and is otherwise unlawful, invalid, null and void,

c. A mandatory injunction compelling the 2nd to 10th defendants whether by themselves or their agents to forthwith deliver up for cancellation by the 12th and or 13th defendants the titles purportedly held by them, and in default of doing so the 12th and/or 13th defendant do cancel the titles within thirty (30) days of such default.

d. An order that the Commissioner of Lands do expunge references to the 1st to 10th defendants from all documents, certificates, entries and details in respect of the property from all records at the Registry of Titles and the Department of Lands and more particularly any references in respect of the false, fake, invalid and null and void documents of title purportedly held by the 2nd to 10th defendants;

e. Costs of this suit and interest thereon at court rates.

f. Such other order as it commends to the Honourable Court to issue.

2. Briefly, the plaintiffs’ case as set out in the further amended plaintiff is that the deceased was the absolute registered proprietor of the suit land, L.R No. Ruiru/Ruiru East block 7/53. That sometimes in the year 2011, the deceased discovered that construction work was being undertaken on the suit land without his permission. He immediately caused an official search to be conducted over the suit land and the same revealed that the 1st defendant had fraudulently subdivided the suit land into L.R. Nos. 299, 299, 300, 301, 302, 303, 304 and 305 and sold the same to the 2nd to 11th defendants, thus precipitating the instant suit.

3. The defendant’s case is as summarised in their respective statements of defence. The statements include the 1st defendant’s defence dated 29th July, 2011, the 4th and 5th defendants’ defence dated 14th and 15th November, 2014 and the 7th, 8th, 9th defendants’ defence statements dated 14th November, 2014. The defendants did not file and serve any amended statement of defence to the further amended plaint. Nonetheless, they denied the plaintiffs’ claim.

4. The 2nd defendant (DW2) stated that she is the lawful absolute owner of the suit land having purchased the same from one Grace Wambui Muriuki (1st defendant). That she obtained the necessary Land Control Board consent, paid the requisite stamp duty and registration fees hence title issued in her name accordingly. That she was entitled to deal with the suit land in any manner she deemed fit and also to sell the same and the purchasers thereof were equally entitled to deal with the parcels of suit land as they deemed fit.

5. The 4th and 5th defendants averred, interalia, that they jointly acquired title to L.R.No. Ruiru/Ruiru East Block 7/300 for consideration. That they have developed the same.

6. The 7th, 9th and 10th defendants averred, interalia, that they acquired for consideration L.R.Nos. Ruiru/Ruiru East Block 7/302,304 and 305 respectively. That they have developed the said three (3) parcels of land.

7. The plaintiffs are represented by learned counsel Nancy Atieno instructed by Ms Albert Kamunde and Company Advocates. The 2nd defendant is represented by learned counsel, Mr. Ngure Mbugua. The 3rd and 4th defendants are represented by learned counsel, Mr J.Makumi while the 5th, 6th, 8th, 10th and 11th defendants are represented by learned counsel Mr. Ndungu Githuka.

8. The 1st plaintiff (PW1) testified and relied on the statement of deceased dated 4th November, 2011 as well as his own statement dated 26th March, 2018. He further relied on a list and bundle of statements of the deceased dated 29th June, 2011 (P Exhibits 1 to 7) and grant ad litem issued in Nairobi High Court succession cause No.1258 of 2017 (P Exhibit 8) and green card or register dated 26th September, 2015 in respect of the suit land (P Exhibit 9) in support of the plaintiffs’ case.

9. DW1 was Robert Mugendi Mbuba, Land Registrar, Thika (13th defendant). He stated that the register of the suit land was opened on 21st May, 1991 in the name of the Government of Kenya and it was transferred to the deceased on the same date. That on 16th May, 1995, the suit land was transferred to the 1st defendant who transferred the same to the 2nd defendant (DW2) on 5th December, 2006. Subsequently, the suit land was subdivided into L.R. Nos. Ruiru/Ruiru East Block 7/298 to 305 on 24th January, 2007.

10. DW2 (the 2nd defendant) stated that she bought the suit land from the 1st defendant in the year 2006. She relied on her statement dated 29th July, 2011 and her list of documents of even date (2nd D Exhibits 1 to 7).

11. DW3, (mother of the 3rd defendant) relied on her statement dated 9th July, 2018 and her list of documents dated 16th August, 2011 (3rd and 4th D Exhibits 1 to 5). She stated, interalia, that the suit land belonged to DW2 who signed the 3rd and 4th D Exhibits 1 to 5.

12. DW4 (the 5th defendant) stated that he was husband of the 10th defendant and he relied on a list of statement dated 6th November, 2018. That 6th defendant and himself jointly bought L.R. No. Ruiru/ Ruiru East Block 7/300. He relied on their joint index of documents dated 6th November, 2018 (5th and 6th D Exhibits 1 to 5).

13. DW5 (the 8th defendant) testified and relied on his statement dated 12th September, 2011. He stated that she bought LR No. Ruiru/Ruiru East Block 7/300 from DW2. He also relied on his list index of documents dated 12th September, 2011 (8th D Exhibits 1 to 8).

14. DW 6 (10th defendant) testified that she bought L.R. No. Ruiru/Ruiru East Block 7/304 from DW2 and she erected an incomplete house thereon. She relied on her statement dated 12th September, 2011 and her list of documents of even date (10th D Exhibits 1 to 15).

15. DW7 (11th defendant) testified that he bought L.R. No.Ruiru/Ruiru East Block7/307 from DW2 and has built a five bed roomed bungalow on the land. He relied on his statement dated 12th September, 2011 as well as his index of documents of even date (11th defendant Exhibits 1 to 11).

16. Learned counsel for the plaintiff filed submissions dated 30th November, 2018 wherein he identified four (4) condensed issues for determination and cited sections of the law including sections 26 and 76 of the Land Registration Act, 2016 (2012). In support of the submissions counsel relied on authorities, interalia, Elijah Makori Nyangwara-vs-Stephen Mungai Njuguna and another (2013) eKLR, Esther Ndegi Njiru and another-vs-Leonard Gatei (2014) eKLR, West End Butchery Limited-vs-Arthi Highway Developers Limited and 6 others (2012) eKLR and Martha Wambui Muchiri-vs-Kanairo Miriti and 4 others (2018) eKLR.

17. Learned counsel for the 2nd defendant filed submissions dated 5th December, 2018 whereby he framed and analysed two (2) issues for determination. He urged the court to find that DW2 bought part of the suit land in good faith for valuable consideration without any knowledge of the alleged fraud in this suit.

18. In his submissions dated 4th December, 2018, learned counsel for the 3rd and 4th defendants, framed and anlaysed three (3) issues for determination including whether the titles to L.R. No. Ruiru/Ruiru East Block 7/298-299 were acquired fraudulently and the effect of the 3rd and 4th defendants’ titles thereof. He submitted that the deceased passed a good title to the 1st defendant who in turn passed a good title to DW2 who subsequently passed a good title to the 3rd and 4th defendants.

19. Counsel cited section 2 of the Law Reform Act (Cap 26), section 26 of the Land Registration Act,2016 (2012), Order 2 rule 10 of the Civil Procedure Rules, 2010 and section 107 of the Evidence Act (Cap 80), in support of his submissions. He also relied on authorities, interalia, Roman Karl Hintz-vs-Mwangombe Mwakima (1984) eKLRon the capacity of the 12th plaintiff to institute the suit on behalf of the deceased and Joseph Muriithi Njeru-vs-Mary Wanjiru Njuguna and another (2018) eKLR regarding bonafide purchaser doctrine.

20. Learned counsel for the 5th, 6th, 8th, 10th and 11th defendants filed submissions dated 6th December, 2018 wherein he urged the court to dismiss the plaintiff’s case for want of proof to the required standards. That the court do award damages to his clients and order the removal of the cautions entered by the deceased and which subsist against the defendants’ titles.

21. Counsel made reference to sections 26(1) and 80 of the Land Registration Act, 2016 (2012) in respect of the certificate of title issued by the Registrar upon a registered land and an order for rectification of the register by the court. He relied on authorities including Independent Electoral and Boundaries Commission and another-vs-Stephen Mutindaand 3 others (2014) eKLR that parties are bound by their pleadings which in turn limits the issues upon which a trial court make a pronouncement and Abiero-vs-Thabiti Finance company Limited and another (2001) KLR 508 on award of damages to a wronged plaintiff.

22. I have anxiously studied the entire pleadings, evidence of PW1, DW1, DW2, DW3, DW4,DW5,DW6 and DW7 as well as the rival written submissions together with the authorities relied upon therein by counsel for the respective parties in this matter. I take into account the plaintiffs’ issues for determination dated 25th February, 2013 and issues for determination in the plaintiff’s submissions, the 2nd defendants’ submissions and the 3rd and 4th defendants’ submissions. Bearing in mind the foregoing issues and being guided by the decision of the Court of Appeal in the case of Galaxy paints Company Limited-vs-Falcon Grounds Limited (2000) 2EA 385; the issues for determination boil down to whether;

a. The 1st plaintiff has the capacity to institute this suit on behalf of the deceased.

b. The issuance of title for the suit land and it’s subsequent subdivision to the 2nd defendant (DW2) then to 11th defendants by the defendants was of fraudulent and illegal.

c. The parties in this suit are entitled to the orders sought in their respective pleadings.

23. On the 1st issue, the 3rd and 4th defendants contended that based on section 2(3) of the Law Reform Act (Cap 26) and the decision in Roman Hintz case (supra), the 1st plaintiff (PW1) lacks the capacity to bring this matter before the court for and on behalf of the deceased. That (PW1) is not a spouse or a child or a parent of the deceased.

24. The plaintiffs submitted that they substituted the deceased pursuant to an order of the court dated 25th March 2018 and upon consent of counsel for the respective parties herein. That they are the legal representatives of the estate of the deceased as per grant ad litem in Nairobi High Court succession case No.1258 of 2017 (P Exhibit 8) which has not been challenged or at all.

25. The estate of the deceased person is vested in the legal representative; see Trouistik Union International and Another –vs- Mbeyu and another (1993) eKLR.

26. In the case of Omari Kaburu-vs-Industrial and Commercial Bank Development Corporation (2007) eKLR,Wanjiru Karanja J(as the then was) held thus;

“The law is that the grant is what clothes a person with locus standi to stand in and sue on behalf of the estate of the deceased.”

27. Similarly, in the case of Republic-vs-Attorney General axparte John Mugo (2013) eKLRon the role of legal representative, H. Ongundi J held that;

“……..And a legal representative is a person who has been issued letters of grant. This is provided under section 82 (a) of the law of succession Act……”

28. On the 21st March, 2018 the court allowed an unopposed application by way of notice of motion dated 15th December, 2015 for leave to further amend the plaintiffs’ amended plaint. Accordingly, a further amended plaint dated 26th March, 2018 was deemed duly filed on 28th March, 2018. By virtue of section 2(3) (a) of the Law Reform of Act (Cap 26), P Exhibit 8 and court order of 21st March, 2018 and issued on 28th March, 2018 which remain unchallenged, the 1st and 2nd plaintiffs have Lous Standi to sue for and on behalf of the estate of the deceased.

29. Regarding the 2nd issue, I am aware that “fraud” is a generic term embracing all multifarous means which human beings devise and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and include all surprise trick, winning, dissembling and any unfair way by which another is cleared; see Abiero case (supra).

30. It in trite law that fraud must be specifically pleaded and particulars of fraud alleged must be stated and on the face of the pleadings; Ndolo-vs-Ndolo (2008) iKLR (G&F) 742.

31. The plaintiffs assert that the deceased was the absolute registered proprietor of the suit land and he never sold the suit land to anyone. That the acts of the 1st to 13th defendants are fraudulent and they pleaded fraud at paragraph 9 of the further amended plaint dated 26th March 2018. The said particulars generally relate to the 1st to 13th defendants and in particular that the forged documents were prepared by the 1st and 2nd defendants and not 3rd to 11th defendants.

32. I note the statement dated 26th March 2018 of PW1 which was adopted together with the statement dated 4th November,2011 of the deceased as the plaintiffs’ evidence examination in documentation in chief, PW1 stated, interalia;

“My late brother was the registered owner of L.R.No Ruiru/ Ruiru East Block 7/53. I have it’s title deed issued on 21st May, 1991 (P Exhibit1).”

33. During a cross-examination, PW1 stated that there were no encumbrances on the titles issued to 3rd and 4th defendants and that P Exhibit 1 was issued on 21st May 1991. That there has been a sequence of events pertaining to the title deed to the suit land as per P Exhibit 9 which shows the 1st defendant as it’s registered owner after the deceased whose statement does not deny sale of the suit land to the 2nd defendants (DW2).

34. According to DW1, the register of the suit land was opened on 21st May, 1991 in the name of the Government of the Republic of Kenya and it was transferred to the deceased and title issued accordingly on the same date. That the Chief Land Registrar placed a restriction on the suit land on 15th July, 1991, but removed same. He told the court that the register shows that the suit land was transferred from the deceased to the 1st defendant on 16th May, 1995. He could not identify or avail P Exhibit 9 to show the transfer of the suit land from the Government of the Republic of Kenya to the deceased and subsequently to the 1st defendant.

35. In cross-examination, DW1 confirmed that P Exhibit 9 was a true record evidencing transfer and issuance of the title deed in respect of the suit land. He made reference to and identified 2nd D Exhibits 1,2,3,5,6 and 7 and further testified that;

“I have been a Land Registrar for three years now. I have not detected any fraud caused by the 2nd defendant.” (Emphasis added).

36. In further cross-examination, DW1 stated that there was no parallel title to the 2nd defendants’ title as confirmed by P Exhibit 9. That he had no title of PW1 and no report of it’s loss or fraud had been made to their office for action under section 79 of the Land Registration Act, 2016 (2012). That there have been instances of missing parcel files from Land Registry. However, entries in register including P Exhibit 9 could not be invalidated by the loss of other documents.

37. DW2, stated that by 2nd defendant Exhibits 1 to 7, she bought the suit land from the 1st defendant, subdivided the same and transferred portions of it through due diligence and beyond suspicion. She maintained that in doing so she followed the laid down procedure. Her testimony was supported by DW3, DW4, DW5, DW6 and DW7 all who claimed that they are bonafide purchasers for value for their respective portions of the suit land.

38. The plaintiffs contended that title deeds purportedly held by the 2nd, 3rd to 11th defendants are false and were fraudulently obtained. It is the onerous duty upon a registered proprietor to go beyond the instrument of title and prove the legality of how he or she acquired the title and show that the acquisition was legal, formal and free from any encumbrances as held by the Court of Appeal in the case of Munyu Maina-vs-Hiram Gathiha Maina (2013) eKLR.

39. In the instant suit, DW2 has proved by way of 2nd Defendant Exhibits 1 to 7 that she acquired the title to the suit land from 1st defendant legally, formerly and free from any encumbrances as confirmed by DW1 and even PW1. Moreover, by 3rd and 4th D Exhibits 1 to 5, 5th and 6th D Exhibits 1 to 5,6th, 8th D Exhibits 1 to 11, it is quite clear that the 3rd, 4th, 5th, 8th, 10th and 11th defendants acquired titles to their respective portions of the suit land through a procedure which was legal, formal and free from any encumbrances as recognized in Munyu Maina case (Ibid).

40. As already noted at paragraphs 29, 30 and 31 herein above, the plaintiffs did not specifically plead and particularize fraud against the 1st, 7th, 9th and 12th defendants on the face of their further amended plaint. DW2 did confirm that she bought the suit land from the 1st defendant, subdivided and transferred the same to the purchasers who obtained titles thereof through the prescribed procedure thus the acquisition of ownership of their respective portions of land was lawful, formal and free from any encumbrances whatsoever.

41. Moreover, whereas I consider P Exhibit 1 to 9, there is no evidence produced by PW1 to show that the 1st to 11th defendants acquired titles to the suit land or any part thereof by fraud. The 1st, 9th and 12th defendants did not file any statement of defence and the 7th defendant failed to adduce evidence herein. Nonetheless, in the case of Kirugi and another-vs-Kabiya and 3 others (1987) KLR 347, the Court of Appeal stated that the burden was always on the plaintiff to proof his case on the balance of probabilities and that such burden is not lessened even if the case was heard by way of formal proof.

42. It is evident that the 2nd defendant (DW2) purchased the suit land from the 1st defendant and obtained all the necessary documents in the form of 2nd D Exhibits 1 to 7. Subsequently, she subdivided and transferred the land to bonafide purchasers for value who have invested heavily on the suit land; see Kuria Greens Limited-vs-Registrar of Titles and another (2011) eKLR.

43. The upshot is that the plaintiff’s case has not been proved on a balance of probabilities against the 1st to 13th defendants. This suit is therefore bound to fail.

44. Wherefore, I dismiss the plaintiffs’ case with costs to the defendants.

SIGNED andDatedat Migori this 8th day of May, 2019

G.M.A ONG’ONDO

JUDGE

Signed,Dated and Delivered at Thika this 14th Day of JUNE 2019

L.N GACHERU

JUDGE

In the presence of :-

1. M/s Musyoka holding brief for Kamunde for plaintiff

2. M/s Olouch holding brief for Mr. Ngure for 3rd defendant.

3. Mr. Kere holding brief for Mr. Makumi for 3rd and 4th defendants

4. Mr. Githuka for 5th, 6th, 8th 10th and 11th defendants

5. Lucy – Court Assistant