[2018] KEELC 2285 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KISII

CIVIL CASE NO. 318 OF 2013

NYANGOTO OGENDI NYAMWAMU.......................................PLAINTIFF

VERSUS

CHARLES ORORA MABEYA.................................................DEFENDANT

J U D G M E N T

1. The plaintiff herein Nyangoto Ogendi Nyamwamu commenced the instant suit against the defendant by way of a plaint dated 17th July 2013. The plaintiff seeks judgment against the defendant for:-

a) A permanent injunction to restrain the defendant from interfering with, damaging, wasting or doing anything prejudicial to The plaintiff on all that parcel of land known as LR. No. Nyaribari Chache/B/B/Boburia/2626 (hereinafter referred to as “the suit property”).

b) An order for eviction of the defendant from the suit property.

In the plaint, the plaintiff averred that he is the registered proprietor of the suit property and that on or about the month of August 2009, the defendant by himself and through his agents, servants and/or employees without any lawful excuse encroached on a portion of the suit property and erected temporary structures there on for rental. The plaintiff further averred that the defendant refused to vacate the said portion of the suit property even after being asked to do so by the Chief of Bosongo Location. The plaintiff further averred that the defendant’s encroachment on the suit property is unlawful and that it was intended to defeat the plaintiff’s proprietary rights over the suit property.

2. The defendant on his part filed his written statement of defence and counterclaim dated 18th February 2014. In his defence the defendant acknowledged that the plaintiff is the registered owner of the suit property but averred that the registration was obtained fraudulently and without the knowledge of the Defendant and his family. The defendant by way of counterclaim sought judgment and prayed for:-

a) A declaration that the defendant is the rightful owner of the suit property.

b) An order for the reversion and cancellation of the transfer and registration of the suit property to the names of the defendant.

c) A permanent injunction to restrain the plaintiff either by himself, his, his agents/ servants from entering upon, trespassing onto and/or otherwise interfering or dealing howsoever with the suit property.

d) A declaration that the plaintiff is holding the suit property in trust for the defendant.

e) Such further and other relief as the honourable court may deem fit and expedient to grant.

f) Costs of the suit to be borne by the plaintiff.

3. Evidence of the parties;

PW1, the plaintiff in his evidence told the court that he is the owner of the suit property measuring 25ft by 100ft which he purchased on 9th January 1971 from Nyatiti Ochieng for a consideration of Kshs. 10,000. He produced a copy of the title as “PEx.1”. The plaintiff further stated that his brother William Ondiek Ogedi witnessed when he bought the suit property. The plaintiff stated the defendant entered onto the suit property in 2009 and erected a temporary structure without his consent or authority prompting the plaintiff to make a report to the area chief respecting the trespass. The matter was arbitrated before the chief and the elders held that the plaintiff was the rightful owner of the property as per the chief’s letter dated 10th July 2012 (“PEx.2”). Despite the chief’s letter, the plaintiff stated that the defendant refused to vacate the suit property. A letter of demand was further issued to the defendant to vacate from the suit land by the plaintiffs advocate but he failed to do so. The plaintiff produced a copy of search certificate dated 6th August 2012 (“PEx.3”) which confirms that he is the registered owner as from 5th August 2011.

4. The plaintiff denied the allegation by the defendant that he caused the suit property to be registered in his name fraudulently or that the defendant’s brother had a share in the suit property and stated that he personally purchased the suit property and at that time, the defendant was a child. The plaintiff further denied he held the suit property in trust for anybody and hence, he contended the defendant’s counterclaim was baseless and should be dismissed.

5. On cross examination by Mr. Ochoki Advocate for the defendant, he acknowledged that he did not have a copy of the sale agreement that he entered into with the seller to purchase the suit property. Upon being shown a certificate of search dated 30th March 2009 which indicated there were two proprietors over the suit property, he maintained he is the only registered owner and that the defendant had never come to him seeking that the suit property be transferred to him. He denied the contention that one Micah Mogaka ever bought any land from his brother. PW2 William Ondieki Ogedi, the plaintiff’s brother corroborated the plaintiff’s evidence that the plaintiff is the owner of the suit property, that the defendant has erected temporary structures on the suit property and that the defendant has no claim over the suit property as he alleges.

6. DW1, Charles Orora Mabeya the defendant herein told the court that the plaintiff is his cousin and neighbour. He stated the suit property registered in the plaintiff’s name initially belonged to 4 people namely Kefa Mogaka, Marko Nyasinga, Ondieki Ogendi and Nyangoto Ogendi. Kefa Mogaka, Marko Nyasinga and Ondieki Ogendi agreed to sell their shares in the suit property to the defendant’s brother and that the plaintiff also eventually sold his share of the property that was remaining to the defendant’s brother.

7. The Defendant further stated that the initial agreement with the three people was on 15th December 1978 at a consideration of Kshs. 3,000/= and the 2nd agreement was on 13th July 1979 between Nyangoto and his brother for Kshs. 4,000/= which was paid. He stated that his brother Mika Mogaka Mabeya started being sickly between 1993/1994, and that in April 1994 he gave him the copies of the agreements so that he could follow up the processing of the title but unfortunately he died in September 1994 before the process was completed. The defendant contended that his brother was in possession of the suit property up until he died and after his death the defendant continued to be in possession. He thus denied the plaintiff’s contention that he only entered the suit property in 2009 and averred that it was in 2009 that he started processing the title to the suit property.

8. The defendant in his further testimony stated that in 2009 Ondieki Ogendi and the plaintiff agreed to transfer the suit property to him but the plaintiff later reneged on the agreement claiming that his son (plaintiff’s) had refused. The defendant stated that the plaintiff afterwards caused the property to be registered in his sole name to the exclusion of the defendant. The defendant averred the act by the plaintiff to have the property registered in his sole name was fraudulent. The defendant sought an order declaring him the rightful owner of the suit property and the cancellation of the title registered in the plaintiff’s name. Lastly, the defendant by way of counterclaim, averred that he had been in possession of the suit property since 1994 and hence, the plaintiff’s title, if any, had been extinguished by effluxion of time and therefore the title in the plaintiff’s favour should be cancelled.

9. On cross examination, by Mr. Omwega Advocate the defendant stated that his deceased brother did not give him any document to denote that he had left him the suit property. He further stated he had never made any complaint against the plaintiff to the local administration and he had not lodged any caution against title of the suit property. The defendant further conceded he has no documents to show that the suit property had been registered jointly with other co-owners.

10. DW2 Ebisiba Nyangwansa Mogaka, the defendant’s deceased brother’s wife stated in her evidence that her husband Micah Mogaka Mabeya bought the suit property from Kepha Mogaka, Ondieki Ogendi alias Nyagucha and Marko Nyasinga in 1978 and that during that period, there were some temporary structures which were later demolished by the three owners after they had sold the suit property. She stated that her husband was given vacant possession of the suit property and that he constructed temporary structures thereon which are rented out. She further stated that after her husband fell sick he could not pursue the processing of the title for the property but he requested the defendant to follow up. The witness said she later learnt from the defendant that the plaintiff had transferred the land to his name notwithstanding the sale of the shares by the co-owners to her late husband.

11. Submissions, Analysis and Determinations;

The parties at the close of the trial filed written submission. The plaintiff’s submissions were filed on 6th April 2018 while those of the defendants were filed on 18th April 2018. After reviewing the pleadings, the evidence and the submissions made by the parties, the issues that arise for determination are as follows:-

(i) Whether the plaintiff is the registered owner of land parcel Nyaribari Chache/B/B/Boburia/2626.

(ii) If the plaintiff is so registered as owner of the property whether the registration was procedure fraudulently by the plaintiff

(iii) Whether the defendant is entitled to be registered as the owner of the suit property instead of the plaintiff.

(iv) What orders/reliefs should the court make and/or grant?

12. It is an undisputed fact that the plaintiff is the registered proprietor of the suit property measuring 25ft by 100ft. PW1 in his evidence produced the title deed and certificate of official search as “PExh 1 and 2” respectively. Section 26 of the Land Registration Act No. 3 of 2012 provides:-

(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except-

(a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

13. The defendant in the instant case asserted that the plaintiff fraudulently obtained the registration of the suit property in his name on the basis that the property had been purchased by his brother (defendant) from the plaintiff and the plaintiff’s other co-owners. Fraud is defined in the Black’s Law Dictionary 10th edition thus:

“A knowing misrepresentation of the truth or concealment of material fact to induce another to act to his detriment. Unconscionable dealing; especially in contract law, the unconscionable use of the power arising out of the parties’ relative position and resulting in an unconscionable bargain- fraudulent.”

14. The defendant in his written statement of defence and counterclaim particularized the ingredients of fraud committed by the plaintiff but no evidence was led to support the same. In the case of Koinange and 13 others -vs- Koinange [1968] KLR 23the court stated;-

“It is a well established rule of evidence that whosoever asserts a fact is under an obligation to prove it in order to succeed. The party alleging fraud in this case the Plaintiffs had the burden of proving it and they had to discharge that burden.”

Similarly in the case of R.G. Patel -vs- Lalji Makanji (1957) E.A 314 at 317, the court of appeal stated thus;

“Allegations of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.”

15. The defendant in this case made an allegation that the suit property was initially owned by 4 people including the plaintiff who had agreed to sell the property to his deceased brother, but upon the demise of his brother, the plaintiff who was one of the sellers refused to transfer the same to the defendant. This allegation by the defendant was not supported by any evidence as the defendant acknowledged the fact that he had no document showing that the plaintiff and other co-owners were registered as owners of the suit property jointly. The purported sale agreements dated 13th July 1979 and 15th December 1978 were not admitted in evidence and the defendant not having been a party to the agreement there was nothing to prove there was ever a sale of the property by the persons alleged to the defendant’s deceased brother.

16. Having regard to the evidence presented before the court by the defendant, it is my view that the defendant has failed to prove that the plaintiff was fraudulently registered as the proprietor of the suit property. Nonetheless, this matter does not end there, as the defendant in his counterclaim has pleaded he is entitled to ownership of the suit property by reason of being an adverse possessor in whose favour the title held by the plaintiff has been extinguished. Section 7 of the Limitations of Actions Act, Cap 22 of the Laws of Kenya provides-

“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or if it first accrued to some person through whom he claims to that person.”

17. The plaintiff in this case contended that the defendant encroached the suit property in 2009. The defendant on his part has maintained that his brother was in possession of the suit property, but when he died, he (defendant) continued being in possession from 1994 and that he collects rent from tenants who occupied the structures on the suit property since 1994. The above evidence by the defendant was supported by DW2 on the fact that rent was still being paid to the defendant.

18. The fact that the structures on the suit property were built by the defendant’s deceased brother (which fact has not been rebutted) and the defendant continued to collect rents on the same without obtaining permission from the plaintiff, the defendant manifested animus possi dendi, a clear mind and intention of dealing with the suit property as if it was exclusively his, and in a manner that was in clear conflict with the plaintiff’s rights. The plaintiff was, as such dispossessed of the suit property by those acts. The defendants acts were nec vi, nec clam, nec precario (that is, neither by force, nor secretly and without permission).

19. The defendant’s brother, Micah Mogaka Mabeya as per the defendant’s evidence and the evidence of DW2 who was the wife of the defendant’s deceased brother died in 1994 and as at the time of death he had purchased the property and had been granted vacant possession and had constructed temporary structures thereon which were being rented out to tenants. The evidence by the defendant that ever since 1994 after his brother died, he assumed possession and was collecting rent from the tenants thereon was not controverted. If anything, DW2 corroborated this evidence. That being the position my view is that the plaintiff in terms of Section 7 of the Limitation of Actions Act, Cap 22 Laws of Kenya lost the right to recover the land from the defendant after the expiry of 12 years from 1994 by reason of limitation of actions. The plaintiff’s registration as owner on 5th August 2011 was of no legal effect and he cannot rely on the aforesaid registration to seek the recovery of the land. He lost the right to recover the land in 2006 after the expiry of 12 years from 1994 when the defendant assumed possession and continued in possession. The registration of the plaintiff on 5th August 2011 merely constituted him as a trustee for the defendant who had acquired title to the land by effluxion of time.

20. The evidence on record is that the plaintiff only attempted to recover possession of the suit land from the defendant in 2012 when he made a report to the area chief of encroachment by the defendant onto his (plaintiff’s) land following which the chief authored the letter dated 10th July 2012 (“PEx.2”). There is no record of any proceedings before the chief and therefore it cannot be ascertained on what basis the chief ruled that the suit property belonged to the plaintiff. The court takes cognizance of the fact that the plaintiff was registered as owner of the suit property on 5th August 2011 as per the copy of the title (“PEx.1”). The property section of the copy of the title shows the suit property was first registered on 7th January 1971. The copy of certificate of official search for the property dated 30th March 2009 shows that Nyangoto Ogendi and Ondieki Ogendi William were registered as joint proprietors on 7th January 1971. There was no explanation how the plaintiff got to be registered as the sole proprietor of the suit property on 5th August 2011 as shown on the copy of search dated 6th August 2012 produced by the plaintiff as (“PEx.3”). Ondieki Ogendi William testified as PW2 and did not make any mention of this fact.

21. The rationale of the method of acquiring land by adverse possession was explained in the following passage from the decision in Adnam -vs- Earl of Sandwich(1877) 2QB 485.

“The legitimate object of all statutes of limitation is in no doubt to quiet long continued possession, but they all rest upon the broad and intelligible principles that persons, who have at some anterior time been rightfully entitled to land or other property or money, have, by default and neglect on their part to assert their rights, slept upon them for a long time as to render it inequitable that they should be entitled to disturb a lengthened enjoyment or immunity to which they have in some sense been tacit parties.

22. In the present case the plaintiff quite evidently slept on his rights and has by reason of the statute of limitation lost the right to assert them as his adversary has acquired uncontestable rights to the suit property through the operation of the law. The saying that the law is “an ass” is well illustrated by the scenario in the instant case where it can properly confer interest and rights and can conversely divest one of such conferred rights and interests without the blink of an eye. That is the paradox that the application of the law often visits on litigating parties.

23. The ultimate result therefore is that I find the plaintiff’s suit not proved on a balance of probabilities whilst I find the defendant’s counterclaim proved on a balance of probabilities. Accordingly, I order the plaintiff’s suit against the defendant dismissed with costs and enter judgment for the defendant as prayed in counterclaim under prayers (a) to (d). I award the costs of the counterclaim to the defendant.

24. Orders accordingly.

JUDGMENT DATED, SIGNED and DELIVERED at KISII this 27TH DAY of JULY 2018.

J. M. MUTUNGI

JUDGE

In the presence of:

Ms. Momanyi for Omwega for the plaintiff

N/A for the defendant

Ruth court assistant

J. M. MUTUNGI

JUDGE