[2010] KEHC 945 (KLR)

REPUBLICOFKENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL CASE NO. 22 OF 2001

(Formerly HCC Meru 16 OF 1999)

NGARARI M’THANI…………….………...............……..PLAINTIFF

VERSUS

1. EDITA WAMBOGO………...……….. …………1ST RESPONDENT

2. WAMAI NJENGA…………………….…………2ND RESPONDENT

3. MWANIKI NYAGA……………………….…..3RD RESPONDENT

4. PATRICK MUGO NYAGA………………………4TH RESPONDENT

5. RUTH S.K. NYAGA…………………..…………5TH RESPONDENT

J U D G M E N T

By his plaint dated25th January 1999 the plaintiff has sued the 5 defendants and seeks the following orders from this court

(a)An order canceling Titles issued from original GATURI/NEMBURI/27 and the same be reversed to plaintiff’s name on behalf of M’Thani Urambu’s Estate

(b)and or alternatively the rectification of the register to read plaintiffs name in all parcels in paragraph 6 of the plaint above.

(c)An order for prompt and adequate compensation at the market value for the parcels which may be in bona fide purchasers name if any.

(d)He also prays for costs and interest.

His claim is based on fraud as particularized in paragraph 8 of the said plaint.

The gist of his claim as articulated in the plaint and in his testimony in court is that he is the first born son of the deceased one Nyaga Urambu. The deceased had 2 other wives with whom he had several children. It can therefore be said that the deceased had 3 houses. It is in evidence that the plaintiff was allocated some 5 acres of land by his clan while his father was allocated 6 acres where the deceased used to live with the rest of his family.

The 1st defendant - Edita Wambogo was the deceased’s 3rd wife. The 3rd and 4th defendants were her sons while the 2nd and 5th defendants were buyers of portion of the deceased’s land.

According to the plaintiff, the defendants coerced his father who was very old to transfer the said land to him. It is not disputed that indeed the late Nyaga Urambu appeared before the land control board and made an application for the requisite consent to subdivide and transfer the said plots to his wife and children.

The Application for consent produced before this court as exhibit dated 4. 12. 1988 shows that Nyaga Urambu who was the owner of the land parcel in question applied for consent to transfer the land by way of undivided shares. The same document however gives the names of the transferees and their shares as follows:-

1. Mwaniki Nyaga (3rd Defendant) 1 ½ acres

2. Ruth S.K. Nyaga (5th Defendant) ½ Acre

3. Patrick Mugo Nyaga ( 4th Defendant) 2 acres

4. Wamai Njenga (2nd Defendant) 1 acre and

5. Edita Wambogo (1st Defendant) 1 acre

The document is thumb printed by the late Urambu as the transfer. That thumb print has not been challenged. Consent was granted and all involved parties also signed the transfer form on 15. 2.1988.

It is the plaintiffs case however that these transactions were not done out of the deceased’s free will but that he was coerced to do it. He said in his testimony in court that the learned on 23. 1.1988 that the defendants were attempting to sub-divide his late fathers land. He said that he filed a caution against the Title Deed but the Land Board disregarded the said caution and went ahead and sanctioned the transaction.

He therefore challenged the said consent to the Eastern Province Land appeals Board.

In its deliberations of 26. 05. 89, the Appeals Board allowed his Appeal vide Min. 6/89 and ordered that the land office was to be notified to revert the Title Deed to the absolute ownership of the plaintiffs father. The Appeals Board also ordered that all the transactions undertaken as a result of the challenged consent should be nullified and declared void.

This was nonetheless never done. The failure to comply with that order is cited as one of the particulars of fraud. The issue of the validity or otherwise of the said cancellation has been raised and submitted on by counsel. I find this as good a moment as any other to deal with that point. Incidentally although counsel for the plaintiff submitted that the Provincial Commissioner did order the nullification of the land control board consent but that the same was disregarded, his otherwise able submission was loudly silent on the legality or lawfulness of the said cancellation.

Counsel for the defendants on the other hand submitted that once the Land Control Board gives consent to transfer then no court can reverse the same. He further submitted that under Section 13(2) of the Land Control Act Cap 302 of the Laws of Kenya no appeal lies against a consent given by the Land Control Board. It is important for purposes of clarity to outline the said provisions. Section 11 of Cap 302 provides as hereunder

11(i)“where a Land Control Board REFUSESto grant consent in respect of a controlled transaction, the applicant may within 30 days of the copy of the Board’s decision being delivered or posted under Section 16(2), appeal to the Provincial Land Control Appeal Board for the province in which the land in question is situated”.

This provision is self explanatory. An Appeal can only lie to the Provincial Appeals Board from a refusal to grant consent by the District Land Control Board and not for cancellation of a consent which has already been granted.

The rationale behind this in my view is because the Land Control Board grants a consent only after hearing the parties to the transaction and all other interested parties as necessary. In this case, the seller though aged was present with his wife and children. The Board must have considered the caution lodged by the plaintiff therein but found it lacking in merit before going ahead to grant the consent.

The law clearly does not allow the Provincial Land Appeals Board to entertain Appeals against granting of consent. The appeals Board in this case had therefore acted without jurisdiction and its decision to cancel the consent was ultra vires and with no force of law. The Commissioner of Lands and/or the Land Registry was therefore in order and strictly within the law to refuse to cancel the transactions as ordered by the Appeals board. There was no fraud in their action to that effect.

The said consents were therefore valid and capable of being acted on.

According to the plaintiff and his counsel in his submission, the witnesses contradicted themselves as to whether or not the said agreement of sale was signed in the offices of Utuku & Co. Advocates. There were also claims that the plaintiff’s father was taken to the house of 5th defendant at night and that 5th defendant who was amember Land Board influenced the Land Control Board’s decision. It is nonetheless noted that the plaintiff was not present at these places and all these were allegations or surmises for which he availed no proof.

If the deceased did not want to sign (thumb print) the documents before the Land Control Board, nothing stopped him from doing so. It is also noted that the transactions were completed 3 clear years before he died. Why did he not go to court then and allege fraud?

On this point also, the court would like to state that the said transactions were completed in 1988-89. The particulars of fraud pleaded in the plaint were circumstances known to the plaintiff at that time. Yet it took him almost 11 years to file the suit. This suit is clearly time barred.

The other complication I find in this case is that, even if I were to find that the plaintiff had proper locus to file this suit, his locus was limited to collecting, receiving or even preserving the estate of his late father. The land in question did not form part of the deceased’s estate as at the time he died. The land had been transferred to the defendants 3 years before the death of the plaintiff’s father.

Whichever way one may look at this case, it is simply a bad suit. The same is not sustained by the evidence adduced. There is no sufficient evidence to support a claim of coercion or fraud on the part of the defendants. Clearly the plaintiff was not happy with the fact that his father distributed his land to his wife and children and left him out notwithstanding the fact that he had his own 5 acres which was given to him by the clan. Unfortunately, the law must take its course and a claim must be proved by way of evidence. The plaintiff has failed to prove his case on a balance of probabilities as by law required. His claim must therefore fail. His suit is hereby dismissed with costs to the defendants.

W. KARANJA

JUDGE

Delivered, signed and dated at Embu this 27th day of October 2010.

In presence of:- Mr. Okwaro for Plaintiff & Mr. Kariuki Mugo for Defendant.