[2023] KEELC 18559 (KLR)

Ochieng’ (Suing as Personal Representative of the Estate of Henry Michael Ochieng’, Deceased) v Okinyi & 2 others (Environment and Land Appeal E026 of 2021) [2023] KEELC 18559 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18559 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisumu

Environment and Land Appeal E026 of 2021

SO Okong'o, J

July 6, 2023

Between

Philip Oduor Ochieng’ (Suing as Personal Representative of the Estate of Henry Michael Ochieng’, Deceased)

Appellant

and

Joseph Okinyi

1st Respondent

Koru Catholic Church

2nd Respondent

County Land Registrar Kisumu

3rd Respondent

(Being an appeal from the judgment and decree of Hon. P.K. Rugut PM in Tamu PMCELC No. 32 of 2018 delivered on 18{{^th}} March 2021)

Judgment

1This appeal is challenging the judgment and decree of Hon.P.K. Rugut PM delivered on 18th March 2021 in Tamu PMCELC No. 32 of 2018 (hereinafter referred to as “the lower court). Henry Michael Ochieng’, deceased (hereinafter referred to only as “the Appellant”) filed a suit in the lower court against the Respondents on 13th November 2018 seeking the following reliefs; a.A declaration that the Appellant was the legitimate owner of all those parcels of land known as Title No. Kisumu/Fort Ternan/495 and Title No. Kisumu/Fort Ternan/497(hereinafter together referred to as “the suit properties” and separately as “Plot No. 495” and “Plot No. 497” respectively).

b.A permanent injunction restraining the Respondents by themselves, their agents, servants and/or employees from trespassing, selling, wasting, intermeddling and/or interfering in any manner whatsoever with the suit properties.

c.The 3rd Respondent be ordered to rectify the registers for the suit properties to read the name of the Appellant as the proprietor thereof.

d.General damages.

e.Vacant possession of the suit properties.

f.Costs.

g.Any other relief or remedy the court may deem fit to grant.

2The suit properties measure 13 hectares (32 acres) in total. In his plaint in the lower court, the Appellant averred that he was at all material times the registered proprietor of the suit properties. The Appellant averred that in 1991, he intended to donate to the 2nd Respondent a portion of land comprised in the suit properties measuring 8 acres and to sell to it another portion of land also comprised in the suit properties measuring 24 acres at a consideration of Kshs. 1,200,000/-. The Appellant averred that the 2nd Respondent paid him a sum of Kshs. 600,000/- leaving a balance of Kshs. 600,000/-. The Appellant averred that he was at all material times dealing with one, Father Toney Clarke who was acting on behalf of the 2nd Respondent. The Appellant averred that he was supposed to undergo some medical procedures while Father Tony Clarke was to travel out of the country. The Appellant averred that in the circumstances, the 1st Respondent was authorised to sign various land documents on behalf of the 2nd Respondent in relation to the suit properties. The Appellant averred that the 1st Respondent was supposed to keep the said documents after signing the same and was not authorised to do anything else. The Appellant averred that Father Tony Clarke did not come back to the country after travelling abroad a development that stalled the transaction that the Appellant had with the 2nd Respondent.

3The Appellant averred that he was shocked to learn later that the 1st Respondent who was the 2nd Respondent’s driver had caused the suit properties to be transferred and registered in his name and had subsequently sold the same to third parties including the portion thereof that he had intended to donate to the 2nd Respondent. The Appellant averred that he did not know how the 1st Respondent came into possession of the title deeds for the suit properties. The Appellant averred that the transfer and registration of the suit properties in the name of the 1st Respondent were unlawful and fraudulent. The Appellant averred that the 2nd Respondent did not pay the balance of the purchase price in respect of the 24 acres of land that was being sold to it by the Appellant despite several reminders. The Appellant averred that the 3rd Respondent gave consent to the 1st Respondent to transfer one of the suit properties to a third party and proceeded to register the said transfer knowing well that the property did not belong to the 1st Respondent. The Appellant averred further that the Respondents failed to disclose to the said third party that the 1st Respondent was masquerading as the owner of the suit properties.

4The Appellant’s suit in the lower court was defended by the 1st and 3rd Respondents. The 2nd Respondent neither entered appearance nor filed a defence. The 1st Respondent filed a defence on 20th December 2018 in which he denied the Appellant’s claim in its entirety. The 1st Respondent averred that the Appellant sold to him the suit properties and signed the applications for consents of the Land Control Board which were duly issued after which the Appellant executed instruments of transfer of the properties in his favour. The 1st Respondent averred that the said instruments of transfer were duly registered thereby transferring the suit properties from the Appellant to the 1st Respondent. The 1st Respondent averred that he was the registered proprietor of Plot No. 495 and that he had transferred Plot No. 497 to James Aggrey Omolle and Immaculate M.Omolle in whose names the property was registered. The 1st Respondent averred that he was an innocent purchaser of the suit properties for value. The 1st Respondent averred that the Appellant’s suit was time-barred and also defective for non-joinder of the owners of Plot No. 497.

5The 3rd Respondent filed its defence on 5th February 2019. The 3rd Respondent averred that it was not a party to any of the agreements that the Appellant entered into with the 1st and 2nd Respondents. The 3rd Respondent averred that if any transfer was effected in its office, the same followed the laid down procedure. The 3rd Respondent denied all the allegations of fraud pleaded against it in the plaint.

6The lower court heard the Appellant’s claim against the Respondents and rendered its judgment on 18th March 2021. In the judgment, the court made a finding that the Appellant sold Plot No. 497 to the 1st Respondent. With regard to Plot No. 495, the lower court found that the property was not acquired by the 1st Respondent lawfully. The court therefore upheld the 1st Respondent’s title to Plot No. 497 and cancelled the 1st Respondent’s title to Plot No. 495 and reverted the same to the Appellant. The court ordered each party to bear its own costs.

7The Appellant was aggrieved by part of the said decision that found that Plot No. 497 was lawfully sold and transferred by the Appellant to the 1st Respondent and preferred the present appeal. In his Memorandum of Appeal dated 16th April 2021, the Appellant challenged the lower court’s judgment on the following grounds; 1. The Learned Magistrate erred in law and fact in holding that the Appellant sold Plot No. 497 to the 1st Respondent despite lack of evidence in support of that finding.

2. The Learned Magistrate erred in law and fact in failing to find and hold that failure on the part of the 1st Respondent to produce in evidence a copy of the agreement of sale that he allegedly entered into with the Appellant in respect of Plot No. 497 was a sign of deception.

3. The Learned Magistrate erred in law and fact in failing to hold that the 1st Respondent acquired Plot No. 497 fraudulently having made a similar finding with regard to Plot No. 495 on account of the disparities in the consideration indicated in the consent of the Land Control Board and the receipt that the 1st Respondent had produced in evidence in proof of sale of Plot No. 495 to him by the Appellant which situation also existed with regard to Plot No. 497.

4. The Learned Magistrate erred in failing to find that the letter of consent dated 30th March 2000 and the letter of consent dated 29th March 2001 both bore the same serial number 528480 and as such were fraudulent and invalid.

5. The Learned Magistrate erred in holding that the Appellant failed to prove that the Muhoroni Land Control Board did not exist in 2000 when there was clear evidence to that effect from Julius Kipkemoi Ngetich(PW3).

6. The Learned Magistrate misdirected himself in law and as a result came to a wrong conclusion when he held that the Appellant’s letter dated 22nd April 2006 corroborated the 1st Respondent’s evidence that there was a sale agreement between the Appellant and the 1st Respondent.

7. The Learned Magistrate erred in law in failing to consider the available evidence that the 1st Respondent had forged the transfer form and had also illegally obtained the original title deed for Plot No. 497 from the 2nd Respondent without the Appellant’s consent.

8. The decision of the Learned Magistrate was against the weight of evidence.

8The Appellant prayed that the appeal to be allowed and the judgment and orders of the lower court made on 18th March 2021 in so far as it relates to Plot No. 497 be set aside and/or varied. The Appellant urged the court to make a further order for the cancellation of the registration of the 1st Respondent as the proprietor of Plot No. 497 and restoration of the property in the name of the Appellant. The Appellant also prayed for the costs of the lower court suit and of the appeal.

The submissions 9This Appeal was argued by way of written submissions. The Appellant filed submissions dated 17th April 2023 while the 1st Respondent filed submissions dated 20th June 2023. The 1st Respondent’s submissions violated the directions that were given by the court on 25th January 2023. The pages are double the number that was specified in the directions given by the court. The court will ignore the pages in excess of those specified in the order of 25th January 2023. In his submissions, the Appellant summarised all the nine grounds of appeal into one, that the learned magistrate acted ultra vires and irrationally by overlooking the Appellant’s evidence on record with regard to Plot No. 497.

10The Appellant submitted that under section 3(3) of the Law of Contract Act, Chapter 23 Laws of Kenya and Section 38 of the Land Act 2012, an agreement for the disposition of an interest in land must be in writing save for few exceptions. The Appellant submitted that the lower court held that the Appellant sold Plot No. 497 to the 1st Respondent although the 1st Respondent never produced any sale agreement in evidence. The Appellant submitted that the lower court relied on a copy of a purported letter from the Appellant in which the Appellant allegedly stated that he had sold the plot to the 1st Respondent. The Appellant submitted that the said letter could not be deemed as an agreement for sale in writing under section 3(3) of the Law of Contract Act. The Appellant submitted that although the burden was not on him to prove that he did not sell Plot No. 497 to the 1st Respondent, he proved that fact on a balance of probabilities. The Appellant urged the court to allow the appeal.

11In his submissions, the 1st Respondent framed three issues for determination by the court namely; whether the learned magistrate had jurisdiction to determine the lower court suit, whether the lower court erred in failing to correctly analyse the evidence adduced in court and the relevant laws to reach a just decision, and who is to bear the costs of the appeal?

12On the first issue, the 1st Respondent submitted that the Appellant’s suit in the lower court was time barred under section 7 of the Limitation of Actions Act, Chapter 22 Laws of Kenya and as such the lower court had no jurisdiction to entertain the suit. The 1st Respondent submitted that the land transaction which was the subject of the Appellant’s claim in the lower court took place between 1999 and 2000. The 1st Respondent submitted that the Appellant’s suit in the lower court was not filed until 18 years later in 2018. The 1st Respondent submitted that the suit was filed out of time and as such the lower court was divested of jurisdiction to entertain it. The 1st Respondent submitted that on that ground alone, the appeal was for dismissal.

13On the second issue, the 1st Respondent submitted that the lower court failed to properly analyse the evidence that was placed before it to come to the decision that it reached on 18th March 2021. The 1st Respondent invited the court to rehear the lower court case and come to its own conclusions. The 1st Respondent submitted that the lower court overlooked the fact that the 1st Respondent was the registered proprietor of the suit properties and as such his rights to the said properties were absolute, indefeasible, and deserved protection. The 1st Respondent submitted that the Appellant did not establish any of the circumstances under which the 1st Respondent’s titles could be impugned. The 1st Respondent submitted that no fraud, illegality, procedural impropriety or corruption were established by the Appellant. The 1st Respondent submitted that there was no evidence that the Appellant reported the alleged forgery of his signature to the Police. The 1st Respondent submitted that the Appellant did not also call a document examiner to prove the alleged forgery of his signature. The 1st Respondent submitted that the Appellant had admitted in writing that he sold the suit properties to the 1st Respondent. The 1st Respondent submitted that he proved that the signatures in the instruments of transfer of the suit properties were indeed the signatures of the Appellant.

13The 1st Respondent urged the court to set aside the entire judgment of the lower court delivered on 18th March 2021 and substitute it with an order that the Appellant had failed to impeach the sanctity of the titles the 1st Respondent held in respect of Plot No. 495 and Plot No. 497. On the issue of costs, the 1st Respondent submitted that the same should follow the event.

Analysis and determination 14I have considered the pleadings and proceedings of the lower court, the judgment of the court, the grounds of appeal put forward by the Appellant, and the submissions by the parties. This being a first appeal, the court has a duty to consider and re-evaluate the evidence on record and to draw its own conclusions on the issues that were raised for determination before the lower court. However, the court has to bear in mind that it did not have the advantage of seeing and hearing the witnesses who testified before the lower court. See, Verani t/a Kisumu Beach Resort v. Phoenix of East Africa Assurance Co. Ltd [2004] 2 KLR 269 and Selle v. Associated Motor Boat Co. Ltd. [1968] E.A 123 on the duty of the first appellate court. The court will also not interfere with the findings of fact by the trial court unless they were not based on evidence at all or they were based on a misapprehension of the evidence, or where it is demonstrated that the court acted on wrong principles in reaching its conclusion. See, Peter v. Sunday Post Ltd. [1958] E.A 424 and Makube v. Nyamuro[1983] KLR 403 .

15I will consider the Appellant’s grounds of appeal one after the other but where necessary, some grounds would be considered together. I find no merit in grounds 1, 2 and 7 of appeal. On the evidence that was before the lower court, I am unable to fault the lower court’s finding that the Appellant sold Plot No. 497 to the 1st Respondent. The 1st Respondent told the court that he had entered into a written agreement with the Appellant but the agreement got lost. This was not a case where the parties did not enter into an agreement in writing contrary to section 3(3) of the Law of Contract Act, Chapter 23 Laws of Kenya. The 1st Respondent presented before the lower court compelling evidence showing that there was indeed an agreement between the Appellant and the 1st Respondent. The Appellant confirmed in writing more than once that he sold Plot No. 497 to the 1st Respondent. See DEXH. 12 and DEXH. 13. The 1st Respondent also produced in evidence the instrument of transfer of land dated 3rd April 2000 signed by both the Appellant and the 1st Respondent in respect of Plot No. 497(DEXH.16). The Appellant did not persuade the lower court and this court that he did not write and sign the letters dated 30th January 2006 and 22nd April 2006 DEXH. 12 and DEXH. 13. He did not also convince the lower court and this court that he did not sign the instrument of transfer(DEXH.16). In my view, even if it was to be assumed that the parties did not have a formal agreement for sale, this instrument of transfer would suffice for the purposes of section 3(3) of the Law of Contract Act, Chapter 23 Laws of Kenya. The document was in writing and was signed by both the Appellant and the 1st Respondent and their signatures on the document were witnessed by an advocate. I am of the view that where a person enters into an agreement for the sale of land and executes an instrument of transfer of land in favour of a purchaser who pays the purchase price in full and registers the transfer, the transaction cannot be nullified by the court merely for lack of a formal agreement of sale in writing. The instrument of transfer if executed by the parties in accordance with the law should suffice for the purposes of section 3(3) of the Law of Contract Act. In this case, however, the 1st Respondent told the court that there was an agreement in writing but the same got lost. Having considered the evidence before it as a whole, the lower court believed that there existed a written agreement between the parties. After considering the same evidence, I have no reason to depart from the lower court’s finding.

16With regard to grounds 3 and 8 of appeal, I am in agreement with the Appellant that in the application for consent of the Land Control Board, the Letter of Consent of the Land Control Board and the extract of the register for the suit property (Green Card), the consideration that was paid by the 1st Respondent to the Appellant for the suit property is given as Kshs. 400,000/-. In his evidence in the lower court, the 1st Respondent stated that the purchase price for Plot No. 497 was Kshs. 550,000/-. The consideration the 1st Respondent stated in his testimony to have given for the suit property was in the circumstances different from that in the documents I have mentioned. However, I am not in agreement with the Appellant that this inconsistency without more was evidence of fraud on the part of the 1st Respondent. I am not persuaded looking at the evidence that was adduced in the lower court as a whole that the inconsistencies with regard to the purchase price paid for Plot No. 497 were evidence of fraud on the part of the 1st Respondent in the acquisition of Plot No. 497. I therefore find no error in the lower court’s failure to find that the 1st Respondent acquired the suit property fraudulently. In my view, the Appellant did not prove fraud to the required standard. It is settled that fraud must be pleaded with the necessary particulars and proved to a standard beyond a balance of probabilities. In Vijay Morjaria v. Nansingh Madhusingh Darbar & another [2000] eKLR , the court (Tunoi JA) stated as follows:It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

17In Railal Gordhanbhai Patel v. Lalji Makanji [1957] E.A 314, the court stated as follows at page 317:Allegation 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.”

18With regard to ground 4 of appeal, I agree with the 1st Respondent that the Land Registrar(PW4) who testified as the Appellant’s witness in the lower court admitted that situations could arise where two letters of consent for different transactions could have the same serial number. PW4 told the lower court that where there was a short supply of Letters of Consent, a Letter of Consent could be copied and used in various transactions. He told the court that he did not see anything wrong with the Letter of Consent dated 30th March 2000 that was used in the transfer of Plot No. 497 to the 1st Respondent. I have also noted from the record that the Letter of Consent dated 29th March 2001 which the Appellant is using as a basis for his argument in this ground of appeal was not produced as an exhibit in the lower court. The Letter of Consent was also issued by Muhoroni Land Control Board which the Appellant contended was not in existence at the material time. I find no merit in this ground of appeal.

19With regard to grounds 5 and 6 of appeal, I am unable to fault the lower court in its finding that there was no convincing evidence that Muhoroni Land Control Board did not exist in 2000 and that the board was inaugurated in 2003. The Appellant’s witness, Julius Kipkemoi Ngetich(PW3) who was called to prove this fact told the court that the Appellant was his good friend. He did not place any documentary evidence before the court showing that he used to be a member of Muhoroni Land Control Board and that the board commenced its operations in 2003. It worth noting that the Land Registrar (PW4) told the court that he could not tell when Muhoroni Land Control Board opened its doors. The burden of proving that Muhoroni Land Control Board did not exist in 2000 was on the Appellant. In addition to calling a witness whose independence could not be trusted to prove the fact, the Appellant did not help matters when he came up with the Letter of Consent dated 29th March 2001 which he claimed to have been issued at Muhoroni Land Control Board. If Muhoroni Land Control Board did not exist until 2003, how did it issue the Letter of Consent on 29th March 2001? For the foregoing reasons, grounds 5 and 6 of appeal have no basis.

20In his submissions, the 1st Respondent raised the issue of the jurisdiction of the lower court to entertain the Appellant’s suit. The 1st Respondent contended that the lower court suit was time-barred under section 7 of the Limitation of Actions Act, Chapter 22 Laws of Kenya and as such the lower court had no jurisdiction to hear and determine it. I am of the view that the issue raised by the Appellant relates to limitation of actions and has nothing to do with the jurisdiction of the lower court. The fact that the Appellant’s suit was time barred as claimed by the 1st Respondent did not mean that the lower court had no jurisdiction to entertain it. In any event, I am of the view that if the 1st Respondent wished to challenge the decision of the lower court on this issue, he should have done so by way of a cross-appeal. The 1st Respondent cannot challenge the decision of the lower court as he has purported to do in his submissions on many issues without a cross-appeal. In the absence of a cross-appeal, I am unable to determine whether or not the lower court erred in entertaining the Appellant’s suit while it was time-barred.

Conclusion 21In the final analysis and for the foregoing reasons, I find no merit in the appeal before me. I wish to add that even if the Appellant had established that the 1st Respondent had acquired the suit property fraudulently; the lower court could not have granted the reliefs that had been sought by the Appellant. There was a non-joinder of necessary parties in the lower court. At the time the Appellant brought the lower court suit, Plot No. 497 was registered in the names of James Aggrey Omole and Immaculate Maniraho Omole. James Aggrey Omole and Immaculate Maniraho Omole were registered as the owners of Plot No. 497 on 3rd June 2016. This fact was well known to the Appellant. See paragraph 16 of the plaint. The lower court could not declare the Appellant as the owner of the suit property which was registered in the names of James Aggrey Omole and Immaculate Maniraho Omole who were not parties to the suit. An injunction and an order of eviction could also not be issued against the 1st Respondent in respect of Plot No. 497 which was not registered in his name and in respect of which he was not in occupation. The same applies to the rectification of the register for Plot No. 497 to restore the same to the name of the Appellant. The 1st Respondent no longer had title to the property. The title was being held by James Aggrey Omole and Immaculate Maniraho Omole. The court could not cancel their title in a suit in which they were not parties. That would have amounted to a violation of the rules of natural justice.

22The upshot of the foregoing is that the Appellant’s appeal fails wholly. The same is dismissed with costs to the Respondent.

DELIVERED AND DATED AT KISUMU ON THIS 6THDAY OF JULY 2023S. OKONG’OJUDGEJudgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:Mr. Orego h/b for Mr. Odumbe for the AppellantMr. Ambala for the 1st RespondentN/A for the 1st and 2nd RespondentsMs. J. Omondi-Court Assistant