[2014] KEHC 3541 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERUGOYA

CIVIL SUIT NO. 23 OF 2012

NYAGA GACHOKI CHII................................................PLAINTIFF

VERSUS

EDITH MUTHONI MUCHIRI..................................1ST DEFENDANT

JANE RUGURU NYAGA.......................................2ND DEFENDANT

CECILIA WAMUYU NYAGA..................................3RD DEFENDANT

ALICE WANJIRU NYAGA.....................................4TH DEFENDANT

JUDGMENT

The plaintiff herein is the father of the four defendants and by his plaint filed herein on 1st November 2012, he sought judgment against the said defendants in the following terms:-

1. A declaration that the defendants fraudulently made themselves to be registered as joint proprietors with the plaintiff over land parcel No. NGARIAMA/KABARE/391

2. An order that the joint proprietorship be severed and land parcel No. NGARIAMA/KABARE/391 be solely registered in the names of the plaintiff

3. Costs of this suit.

The claim was premised on the pleading that at all material times prior to 10th December 1993, the plaintiff had been the registered proprietor of land parcel No. NGARIAMA/KABARE/391 but the defendants fraudulently made themselves to be jointly registered as proprietors of the said parcel of land (hereinafter referred to as the suit land) together with the plaintiff without his knowledge. The particulars of fraud were pleaded in paragraph eight (8) of the plaint to include:

a. The defendants registering themselves as joint proprietors of the suit land without the plaintiff’s knowledge or consent

b. Presenting forged land documents to the land registry to effect joint proprietorship

c. Making the plaintiff to sign documents without his knowledge of their contents.

In their joint defence, the defendant denied those averments and pleaded that the plaintiff himself sub-divided his original land being NGARIAMA/KABARE/25 into four (4) portions of which he transferred three (3) portions to his three (3) sons and registered the other portion being the suit land jointly in his names and the names of the four (4) defendants. They denied any fraud on their part adding that it was infact the plaintiff who later fraudulently changed the suit land into his own names and sub-divided it with the intention of selling it to one ANDREW K. RUIRIE but this fraud was discovered and stopped by the High Court in Nyeri Civil Case No. 35 of 2004. The defendants therefore urged me to dismiss this claim with costs.

In his evidence in chief, the plaintiff stated that he has been the registered proprietor of the suit land since January 1992 and he does not know how the defendants who are his children had the said land also registered in their names as joint proprietors. He said he has never gone to the Land Control Board with the defendants to have them registered as joint proprietors of the suit land and so such registration was fraudulently obtained as he did not sign any transfer documents.

The plaintiff called as a witness CYRUS KIRONJI (PW2) a Land Registrar in Kirinyaga County who produced the register of the suit land which shows that transfer documents in relation to the said land were presented to their office on 10th December 1993 but it is not indicated who presented the documents. He however produced the Green Card (Plaintiff’s Exhibit 2) showing that on 10th December 1993 the suit land was registered in the joint names of the plaintiff and the four defendants and a title deed was issued.

In their defences, the four (4) defendants denied having registered themselves as joint owners of the suit land with plaintiff fraudulently. They said that the plaintiff who is their father voluntarily took them to the Land Control Board on 4th December 1993 and had them registered with him as joint proprietors of the suit land following a family meeting in the presence of their brothers who were also given their own parcels. The plaintiff then kept possession of the title deed in respect of the suit land with the defendants’ consent but in 2003, they learnt that the plaintiff had obtained an order in Nyeri High Court Civil Case No. 35 of 2004 in which the plaintiff was one ANDREW K. RUIRIE which order authorized the plaintiff herein to transfer 1 ½ acres of the suit land to the said ANDREW K. RUIRIE. That order dated 29th April 2004 was however set aside on 12th August 2004 – see defence Exhibits 1 and 2.

The defendants called as witness their two brothers PHILIPINO NYAGA (DW5) and VIDELE NYAGA (DW6) who both confirmed that the plaintiff called a family meeting at which he sub-divided his land giving five (5) acres to each of his sons while the remaining portion which is the suit land was registered jointly in the names of the plaintiff and the four (4) defendants and the relevant documents were signed at the Land Control Board in their presence in 1993. VIDELE NYAGA (DW6) added that it is their step mother who has been pushing the plaintiff to sell the land with the intention of denying the defendants their share in it.

Mr. Mwai for the plaintiff made submissions at the end of the trial and the defendants also made submissions.

I have considered the case by both parties, the submissions on record and the documentary exhibits.

It is not in dispute that since 10th December 1993, the suit land has been registered jointly in the names of the plaintiff and the four (4) defendants herein. The plaintiff’s case is that the four (4) defendants obtained the said joint registration of the suit land in their names through fraud. The defendants have denied this adding that the plaintiff voluntarily registered himself and the defendants as joint proprietors of the suit land following a family meeting at which he also gave his sons a portion of his land. Two of his sons have confirmed as much. A third son is said to be deceased.

The plaintiff alleges fraud on the part of the four defendants. An allegation of fraud is a serious indictment against a party against whom it is made and a party alleging such fraud must tender evidence in proof of that allegation to the required standard. Courts have held that the standard of proving fraud in civil cases is higher than on a balance of probability though not beyond a reasonable doubt as in Criminal Cases. Apart from alleging fraud on the part of the four defendants herein, no evidence was placed before the Court by the plaintiff to prove that allegation yet under Section 107 of the Evidence Act, the burden of proof was on him. In his attempt to prove fraud on the part of the defendants, the plaintiff testified as follows:

“I do not know how they registered themselves as joint proprietors of the land. My sons had taken my title deed in respect of the land. We have never gone to the Land Control Board with the defendants so their registration as joint owners was fraudulent as it was without my consent”.

That was the only evidence laid by the plaintiff to prove that the registration of the suit land in the joint names of the plaintiff and the defendants was obtained fraudulently. The evidence of the Land Registrar (PW2) was not of much help because apart from confirming the said registration, he could not produce any document to show how the registration was done and by whom. Clearly therefore, the plaintiff’s averments in paragraph 8 of his plaint that the registration was done without his knowledge or consent or through forged documents remain mere allegations. The fact that those documents cannot be traced at the Land Registry is not of itself evidence upon which this Court can conclude that the registration of the suit land in the joint names of the plaintiff and the four defendants was obtained through fraudulent means. If anything, the defendants have led evidence supported by their brothers which show that following a family meeting, the plaintiff shared out his land amongst his sons and had the suit land registered jointly in his names and the defendants although he retained possession of the title deed. There is also documentary evidence showing that one ANDREW K. RUIRE had obtained orders in NYERI HIGH COURT CIVIL CASE NO. 35 of 2004 on 29th April 2004 purporting to register 1 ½ acres of the suit in his names and also to have the suit land registered in the sole names of the plaintiff herein. Those orders were however vacated by the Lady Justice H.M. Okwengu on 23rd July 2004 following an application by the defendants herein who were enjoined in the said suit. That can only mean that the orders earlier obtained by ANDREW K. RUIRE in the said High Court Civil Case No. 35 of 2004 were not properly obtained.

It is therefore clear from the evidence on record that there is nothing to show that the four defendants fraudulently registered themselves as joint proprietors of the suit land together with the plaintiff. No evidence of any forgeries or indeed any fraudulent activity has been laid at their door by the plaintiff. There is evidence from the defendants and supported by their brothers to the effect that in 1993, the plaintiff himself, following a family meeting, had the suit land registered in the joint names of the defendants and himself. Plaintiff’s attempts in 2004 to have himself registered as the sole proprietor of the suit land and to sell a portion thereof to one ANDREW K. RUIRE was dismissed by the High Court in NYERI COURT CIVIL CASE NO. 35 OF 2004 – see defence exhibits 1 and 2. If there was any fraud in this matter, it seems to point towards the plaintiff rather than the defendants.

Having considered all the evidence in this case, I find that the plaintiff has failed to establish his case against the defendants. His claim is accordingly dismissed and since the parties are family, I order that each party meet their own costs of this suit.

B.N. OLAO

JUDGE

4TH JULY, 2014

4/7/2014

Before

B.N. Olao – Judge

Mwangi – CC

Mr. Magee for Mr. Munene for Plaintiff – present

No appearance for Defendants

COURT: Judgment delivered this 4th day of July 2014 in open Court.

Mr. Magee for Mr. Mwai for Plaintiff – present

Defendants absent

Right of appeal explained.

B.N. OLAO

JUDGE

4TH JULY, 2014