[2023] KEELC 19231 (KLR)

Ngari & another v Land Registrar Laikipia & another (Environment & Land Case 1 of 2023) [2023] KEELC 19231 (KLR) (13 July 2023) (Judgment)

Neutral citation: [2023] KEELC 19231 (KLR)

Republic of Kenya

In the Environment and Land Court at Nanyuki

Environment & Land Case 1 of 2023

AK Bor, J

July 13, 2023

Between

Charles Gichuhi Ngari

1st Plaintiff

Mary Wanjiku Ndungu

2nd Plaintiff

and

The Land Registrar Laikipia

1st Defendant

Richard Ngunju Kahora

2nd Defendant

Judgment

1. This dispute relates to ownership of the land known as Laikipia/Nanyuki West Timau Block 2 (Matanya/Marura)/71 (“the suit property”) which the Plaintiffs claim to have acquired from Matanya Company. The 1st Plaintiff claimed that the 2nd Plaintiff transferred her interest in the suit property to him on 5/7/2011 but when they went to register the transaction at the Laikipia Lands Registry, they found that the land had been fraudulently transferred to the 2nd Defendant. On learning of the fraud, the 2nd Plaintiff petitioned the Land Disputes Tribunal (“the Tribunal”) to determine the issue of ownership but was forced to withdraw the claim after realising that the Tribunal did not have jurisdiction to determine the question of ownership of the suit property.

2. The Plaintiffs filed suit on 4/11/2013 claiming that the 1st Defendant irregularly issued a title over the suit property to the 2nd Defendant, and averred that the transaction was illegally and fraudulently carried out. The Plaintiffs sought an injunction to restrain the 2nd Defendant or his agents from dealing with the suit property and an order for rectification of the land register by cancellation of the 2nd Defendant as proprietor of the suit property and registration of the 1st Plaintiff as proprietor. They also sought an eviction order.

3. The 2nd Defendant filed the defence on 18/12/2013 denying the allegations of fraud and illegality made by the Plaintiffs. He contended that he acquired the suit property legally and lawfully and that he complied with all legal requirements required by law. He added that he had lived on and cultivated the suit property uninterrupted for 25 years.

4. The hearing of this suit commenced before the Hon A. Ombwayo J. at the Environment and Land Court (ELC) at Nyeri on 10/2/2014 when the 1st Plaintiff gave evidence and adopted his witness statement recorded on 4/11/2013. He tendered the ballot card and the green card in evidence. He stated that he was given the suit property by the 2nd Defendant, who is his sister. It was his evidence that upon presentation of the relevant documents at the lands office to have the land transferred to him on 27/8/1998, he discovered that the 2nd Defendant had been fraudulently registered as proprietor of the suit land. He requested the Land Registrar, Laikipia County to rectify the register who declined. Not knowing that the Tribunal did not have jurisdiction, he filed his claim there and was later forced to bring his suit to the court. He urged the court to grant the orders sought. He stated that he wrote to the Attorney General on 24/2/2012 seeking rectification of the register and copied the letter to the 2nd Defendant. He claimed that the 2nd Defendant cancelled the green card and began cultivating the land. He maintained that the Plaintiffs did not sell the suit property to the 2nd Defendant.

5. On cross-examination, he stated that he went to the Land Registrar in 2011. The 2nd Defendant was registered in 1999 even though the 2nd Plaintiff had initially been registered as proprietor of the and in 1994. It took him 14 years to realise the mistake. He maintained that the 2nd Plaintiff balloted and that the ballot was returned to Wahome Karuri. The balloting was done in 8/9/1981. He stated that previously the land was being utilised by a lady called Joyce and maintained that the 2nd Defendant was not in occupation of the suit property even though he had the title over the land. He added that the 2nd Defendant was his witness in another transaction over land.

6. The 2nd Plaintiff gave evidence and adopted her statement dated 4/11/2013. She stated that she gave her brother the shamba as a gift. When she went to get the title deed, she found her name had been cancelled. They approached the Land Registrar on 5/7/2011 and presented the transfer documents but were informed that the land had been transferred to the 2nd Defendant without her participation. She sought rectification of the land register.

7. On cross-examination, she stated that she did not have a title deed but had the green card. She was given the land in 1994 but had never utilised it. On cross-examination by the 2nd Defendant, she responded that she did not find the 2nd Defendant on the land. She had other parcels of land in Matanya but did not know of plot 331 and 83.

8. The defence case started on the same date when the 2nd Defendant gave evidence. He stated that he lived in Laikipia District and had been living there for more than 30 years. The land became his on 27/81998 and nobody had ever interrupted him. He received a letter from the Tribunal in 2010 but the Tribunal was abolished. In February 2012 he saw a letter from the 1st Plaintiff asking him to take all his documents to the Land Registrar Laikipia, which he ignored. On 16/11/2013 he was summoned by the court.

9. He stated that his ballot was stolen and he reported the loss on 16/9/1983. He produced the report. He stated that the probe for Matanya land began in 1990 and was chaired by the District Officer (DO). He was not lucky. Another probe was done in 1996 by the District Commissioner (DC). He stated that the probe committee declared the land was his and he was given a clearance certificate dated 8/3/1998. He obtained a title after showing his clearance certificate on 27/8/1998. He contended that his title was legally obtained and urged the court to dismiss the case.

10. On cross-examination, he stated that he stayed on the land and had a house which was iron roofed with makuti walls. He told the court that he lived in the house with his family and that he stayed on his father’s land whose number he did not know. He added that the land was his father’s but did not stay on the land. His father who obtained the land was a member of Matanya Estate Limited and got the land alongside other parcels of land. He told the court that his father’s ballot was stolen and his documents were genuine and that he was given the land by the government. In his opinion land belongs to the person staying on it. His father had four parcels of land even though he did not know the numbers. His father said that the land would be registered in his name. He did not know why he was not called before the Probe Committee.

11. The 1st Plaintiff applied to reopen his case to call three more witnesses. The court allowed the cross examination to proceed first. On cross-examination, the 2nd Defendant stated that Mary Wanjiku was registered as proprietor of the land on 23/1994. He presented the clearance certificate by the DO Matanya and a title was issued to him. He denied that there was any fraud between him and the Land Registrar. The 2nd Defendant closed his case. The court allowed the 1st Plaintiff to reopen his case to call three more witnesses.

12. From the typed proceedings, it is apparent that he 1st Plaintiff again gave evidence on 19/2/2015 which was later expunged from the court records.

13. On 19/2/2015 the Plaintiff called Monica Muthoni Kariuki to give evidence. She adopted her witness statement dated 24/4/2014. She told the court that she was a resident of Matanya Chuma where the Plaintiff’s land was and where the 2nd Defendant resided. She stated that the 2nd Defendant had been a close family friend and even took her son for circumcision in 1995. The 2nd Defendant lived next to her where he had built in his later father’s farm. In 1994, Monica’s mother gave the 2nd Defendant a piece of land to plant vegetables next to the land of Mary Wanjiku Ndungu, which is the suit land. She was a witness when Joyce Muthoni Kiratu sold trees to the 1st Plaintiff. Monica’s mother called the 2nd Defendant from Monica’s mother’s farm to witness the agreement. The timber was stocked in her house. Mary Wanjiku introduced her brother, who is the 1st Plaintiff, to them and asked them to take care of the land on his behalf. In 2011, the 2nd Defendant started farming on the suit property and he informed her that it was sold to him by the area Chief for Kshs. 20,000/=. She informed the 1st Plaintiff who filed suit with the Tribunal.

14. She stated on cross-examination that she knew the registered owner of the land was Mary Wanjiku but did not know when she was registered. She was emphatic that the 2nd Defendant obtained the suit land fraudulently because the land did not belong to him. On being cross-examined by the 2nd Defendant, she told the court she knew the Plaintiffs in 1994 and that they had land neighbouring hers which they occasionally went to check on. She told the court that the 2nd Defendant occupied the suit land in 2011 which is when the dispute with the Plaintiff started.

15. She was emphatic that the 2nd Defendant was not her neighbour among the plots of Matanya Company. She did not know how many committees were formed to resolve the problems of land ownership in Matanya Company. She did not have any documents to show that the Chief sold land to the 2nd Defendant but maintained that he told her that personally and that the entire village knew it from the 2nd Defendant’s own mouth. On re-examination, she stated that the 2nd Defendant did not live on the suit property, but stayed on his father’s land about 1 ¼ km away. He knew the 2nd Defendant in 1995 because they were family friends. She is the one who informed the 1st Plaintiff that the 2nd Defendant was ploughing the suit land.

16. Simon Ngunyi Mutahi, a director and Secretary of Matanya Estates Limited gave evidence for the Plaintiff on 19/2/2015 before Lady Justice Lucy Waithaka. He adopted his witness statement dated 24/4/2014. He told the court that he was a director of Matanya Estates Limited in the 1980s and 1990s and was in office when the land in dispute was registered. He knew the Plaintiff and the 2nd Defendant. He stated that Mary Wanjiku, the 2nd Plaintiff, was a member of their company and held ballot card no. 2391 which was erroneously issued to Joseph Wahome Karuri and later transferred to Mary Wanjiku after the error was corrected. He stated that the ballot was for the suit property. He was categorical that the 2nd Defendant had never been a member of land buying company and the company had not transferred ownership of any land to him and the title he held was obtained through fraud. He informed the court that the documents which the 2nd Defendant produced in court were not from the Company and may have been forged.

17. The 2nd Plaintiff became a shareholder of Matanya Limited in 1970 and was registered 1989 after paying Kshs. 640 for one share. As a company, they joined hands with the DC Laikipia and it was announced that members could ballot. He 2nd Plaintiff balloted and got no. 2391. The DC told anyone who had a complaint to go to the DO’s office. The DC appointed 3 DOs who went round the parcels of land and made changes depending on where people were residing. Thereafter a register was compiled and the land surveyor issued new numbers. Mary’s ballot no. 2391 changed to no. 71 in Nanyuki Timau West Block 2 (Marura).

18. That before going to the lands office for the issuance of a title, members would first go to the Matanya office to get clearance from the directors of Matanya. The company would give a clearance letter to its members who would then go to the Land Registrar to be given the amount payable. The member would make the payments at the DC’s office and take back to the Land Registrar for the issuance of title. According to their records, the 1st Plaintiff was not a member of Matanya Estate Limited and neither was the 2nd Defendant. He was emphatic that Mary Wanjiku was the shareholder of Matanya Company. When he attempted to produce the register for Matanya Estates Limited, the court noted that it was not original register. He was stood down so that he could retrieve the original register from the DC or from the lands office showing the members presented to them by Matanya Company Limited. The court directed that he would continue giving evidence and produce the original register on 19/3/2015.

19. The matter came up on 19/3/2015 on 15/12/2015 and 10/5/2016. On 10/5/2016 the 2nd Plaintiff informed the court that he was ready with the documents requested by the court, however the register was not available. The court directed that a mention date would be taken once the register was available. On 8/11/2016, the 2nd Plaintiff informed the court that the chairman of the company was in court with the company’s register. The court set down the matter for hearing for presentation of the company register on 16/6/2017. Further, the court directed that extracts of the relevant parts of the register were to be certified and served upon the Defendants before the hearing date.

20. On 15/6/2017, when the matter came up for hearing the Plaintiff informed the court that Simon was unwell but that the Chairman of the Matanya Company was in court and could present the register. The court directed the parties to take another hearing date when Simon Ngunyi Mutahi could complete his evidence. The 2nd Defendant informed the court that Simon Ngunyi was not unwell but was drunk and that at that moment was at the shopping Centre taking alcohol. He urged the court to give strict timelines.

21. The 1st Plaintiff applied filed the application dated 28/6/2017 seeking to substitute the witness from Matanya Land buying company limited. The application was allowed on 18/10/2017. From the typed proceedings it would seem that parties appeared in court severally but the Plaintiff did not call the witness from Matanya Estates Company to produce the register.

22. On 11/10/2022, the Hon. Mr. Justice James Olola directed that since this was a Nanyuki case and there was an ELC at Nanyuki, the proceedings would be typed and the file remitted to Nanyuki ELC for hearing and disposal.

23. This matter first came up before me on 15/2/2023 when I indicated that I would directions on 16/3/2023. Ms. Mumbi Kiarie advocate for the 1st Defendant sought another date for the Land Registrar to testify. The matter was fixed for hearing on 24/4/2023. Further hearing went on on 24/5/2023 when the Land Registrar known as Charles Nyangicha gave evidence in place of Pamela Mutegi who was bereaved. He adopted the witness statement of Pamela Mutegi. According to her statement, the records held by the 1st Defendant showed that the suit property measuring approximately 1. 25 acres belonged to the 2nd Defendant. The 2nd Defendant was registered as proprietor of the suit property on 27/8/1998. Further, that according to the members’ register for Laikipia West Timau for Matanya Estate, the 2nd Defendant appeared as the shareholder of the suit property. She added that the registration of the 2nd Defendant as the proprietor of the suit property was lawfully done and that the claims of fraud and illegality and the registration of the 2nd Defendant made by the Plaintiff were false and unfounded.

24. Mr. Nyangicha produced the register for Matanya Estates Limited showing that the 2nd Defendants name was inserted in ink against parcel no. 71. The names of the other shareholders were typed. He also produced a copy of the green card showing the card was opened on 21/4/1989 and the name of Mary Wanjiku Ndungu was entered as entry no. 2 on 21/6/1994. It was cancelled and another entry no. 2 made on 27/8/1988 when a title deed was issued to the 2nd Defendant.

25. On being cross examined by the 1st Plaintiff, he stated that the 2nd Defendant’s name was on the members’ register and that it was his land and not his father’s land which was parcel no. 71. He did not have the ballot which he told the court would ordinarily be with the land owner. He did not know why Mary Wanjiku’s name was cancelled and why the entry was not signed. He stated that there was no illegality in the cancellation of Mary Wanjiku’s name and the replacement with Richard Kahora’s name. He confirmed that there was no transfer lodged at the lands office showing a transfer from Mary to Richard. He stated that the Land Registrar at the time gave the title to Richard when he presented documents. Mr. Nyangicha told the court that he had produced the documents which he could find at their office. He maintained that there was no forgery.

26. On re-examination, he told the court that the members’ register showed those deserving to get the land and contained names of shareholders and their land parcel numbers. He clarified that the lands registry did not prepare the register of members and that this was supplied by the directors of the land buying company.

27. He took the court through the process as follows. That the land owner presented the ballot and clearance at the lands office which he would go back with. Nowadays, the procedure has changed and they seek a transfer from the directors to the shareholder but in the past they would only present the ballot, clearance and register which the lands office would compare with the register in their office. He contended that the entry for Mary Ndungu’s name was not valid.

28. Upon enquiry by the court, Mr. Nyangicha conceded that the green card was prepared by the Land Registrar and Mary’s name must have been written and cancelled by the Land Registrar. He confirmed that the register presented by the Plaintiffs letter dated 8/5/2017 neither contained Mary’s name or Richard’s and was written at the bottom that there was a machine error on parcel no. 71. He told the court that it was certified by Matanya Estates even though they did not have a copy of that register in their records.

29. Upon conclusion of the hearing, the court directed parties to file and exchange written submissions. The Plaintiff submitted that the suit property was illegally and fraudulently registered in the 2nd Defendant’s name. He relied on ballot card no. 2391 and urged that Mary Wanjiku Ndungu acquired the suit property from the Government of Kenya on 21/6/1994 after presenting the ballot and a clearance certificate issued by the directors of Matanya Company. He relied on the green card and argued that the 2nd Defendant had failed to produce his ballot, clearance certificate and members’ register. The Plaintiff contended that the Defendants’ members’ register did not tally with the original register issued by the directors of Matanya Estates Company. He added that the 2nd Defendant had failed to produce copies of the sale agreement, transfer form, and receipts issued on payment of stamp duty to prove that he acquired the land suit illegally. He stated that he had suffered for over 10 years and had been denied access to develop his land.

30. He urged the court to award him special and general damages for the period when this case had been in court. He submitted that the Attorney General’s counsel was trying to conceal the fraud committed by the 2nd Defendant and that they could not produce any transfer documents which in his opinion confirmed that the title was obtained with the assistance of the AG.

31. In its submissions, the 1st Defendant maintained that the suit property belonged to the 2nd Defendant and that it was lawfully transferred to him on 27/8/1998. He emphasised that the 2nd Defendant’s name appeared in the list of shareholders submitted to the Land Registrar by Matanya Estates Company. That they relied on the list of shareholders submitted by the company when issuing title deeds. The AG maintained that the Land Registrar’s actions of registering the suit property in favour of the 2nd Defendant was in discharge of his statutory duty and was not in any way informed by fraud.

32. The AG relied on sections 24 of theLand Registration Act and the decision in Dr. Joseph Arap Ngok v Justice Moyo Ole Keiwa & 5 Others, Civil Appeal no. Nairobi 60 of 1997 on the protection afforded to a registered owner. The AG also relied on order 2 rule 4 of the Civil Procedure Rules on the need for a party to specifically plead matters such as performance, release, payment, fraud, inevitable accident, act of God, statutory limitation or any fact showing illegality. The 1st Defendant added that it was well settled that fraud must be specifically pleaded and the particulars of fraud stated on the face of the pleading. Further, that the fraud must be proved. He urged that the Plaintiffs had failed to prove fraud on part of the 1st Defendant in the registration of the suit property. The AG urged the court to dismiss the case because the Plaintiffs had failed to discharge the evidentiary burden and added that the Plaintiffs had failed to produce evidence to show that they were the rightful owner of the suit property.

33. The 2nd Defendant did not file written submissions.

34. The issue for determination is whether the court should grant the orders sought by the Plaintiffs and direct cancellation of the title over the suit property held by the 2nd Defendant and replace it by issuing one in the 1st Plaintiff’s name. Put differently, it is whether the Plaintiffs established their claim to the suit property to the standard required and whether the title to the suit property was lawfully issued to the 2nd Defendant.

35. Titles over land are issued by the 1st Defendant. The Land Registrar explained that the procedure was that the Land Registrar went by the members’ register supplied by the directors of the land buying company, containing details of the shareholder and the parcel number allocated to each member of the company. The member would take the ballot paper and clearance to the lands office, which presumably was for verification of the member’s entitlement to the parcel indicated on the register. The 1st Plaintiff produced ballot card number 2391 in the 2nd Plaintiff’s name, and the initial green card prepared by the Land Registrar showing the 2nd Plaintiff as proprietor of the suit property on 21/4/1994.

36. The Land Registrar, as custodian of the land records, failed to explain how Mary Wanjiku Ndung’u got to be registered as proprietor on 21/6/94 and how Richard’s name was entered on the green card on 27/8/99 in place of Mary’s despite conceding that green cards are opened and kept by the Land Registrar. The plausible explanation based on the ballot card produced by the Plaintiffs, is that Mary Wanjiku’s name was in the original register presented to the lands office in 1994. The changes were effected after the probe committees involving the DC and DOs which the 2nd Defendant mentioned in his evidence. He stated that he was not lucky the first time with the probe committee and that the Government gave him the land after the probe committee declared the land was his and he was given a clearance certificate dated 8/3/1998. He obtained a title after showing his clearance certificate on 27/8/1998.

37. The 2nd Defendant gave a contradictory account of how he came to own the suit property. His evidence was that the land became his on 27/8/1998 and that nobody had ever interrupted him. In the witness statement dated 17/12/13, he wrote that his late father Gitonga Kabogo bought land from Matanya Land Buying Company and that in 1998 his father directed the company to register the suit land in his name. It was also his testimony that his ballot was stolen and he reported the loss on 16/9/1983. According to the evidence of the Land Registrar, Richard Ngunju Kahora was a shareholder of Matanya Estates. The court notes that Richard’s name was inserted in the members’ register by hand against parcel number 71. If he was a shareholder, then he should have produced his ballot and led evidence of how he became a shareholder of Matanya Company. The AG and the Land Registrar relied purely on the members’ register in asserting that the 2nd Defendant was the owner of the suit property.

38. Monica Muthoni Kariuki, who the Plaintiffs called to testify, denied that the 2nd Defendant was a member of Matanya Estates. Monica stated that her land was next to the Plaintiffs’ land and that the 2nd Defendant went to the land in 2011. She also stated that he did not live on the suit land but stayed on his father’s farm which was 1 ½ km away. Monica’s evidence is believable because she stated that she knew the 2nd Defendant in 1995 and that they were family friends. She explained that the 2nd Defendant took her son for circumcision in 1995. Monica stated that her mother gave the 2nd Defendant land to next to Mary Wanjiku’s land to plant vegetables in 1994. She also gave evidence that the 1st Plaintiff bought the trees which Joyce Kiratu had planted on the suit land and that the 2nd Defendant was called to witness that agreement. She averred that the 2nd Defendant started farming on the Plaintiffs’ land in 2011 and the 2nd Defendant told Monica that the Chief sold him the land for Kshs. 20,000/=.

39. Simon Ngunyi Mutahi, a director and Secretary of Matanya Estates Limited testified that Mary Wanjiku, the 2nd Plaintiff, was a member of their company and held ballot card no. 2391. He explained how the ballot was erroneously issued to Joseph Wahome Karuri and later transferred to Mary Wanjiku after the error was corrected. It was his evidence that the 2nd Defendant had never been a member of the land buying company.

40. Weighing the evidence presented by the Plaintiffs against that of the Defendants, the court is satisfied that on a balance of probabilities the 2nd Defendant was not a member of Matanya Estates Limited and he failed to explain the root of his title whilst on the other hand the Plaintiffs established their claim to the suit land and the root of the 2nd Plaintiff’s title.

41. The Plaintiffs have proved their case on a balance of probabilities. A permanent injunction is issued to restrain the 2nd Defendant or his agents from selling, alienating, transferring or dealing with the suit property. The 1st Respondent is directed to rectify the register for the suit land by cancellation of the 2nd Defendant as proprietor and restoration of the 2nd Plaintiff as proprietor of the land. The 2nd Plaintiff will be at liberty to effect a proper transfer to the 1st Plaintiff. The 2nd Defendant will be evicted from the suit property if he does not vacate the land within 30 days of the date of this judgment.

42. The Plaintiff is awarded the costs of the suit to be borne by the 2nd Defendant.

DELIVERED VIRTUALLY AT NANYUKI THIS 13TH DAY OF JULY 2023. K. BORJUDGEIn the presence of:Charles Gichuhi, the 1st PlaintiffMs. Stella Gakii – Court AssistantNo appearance for the other parties