[2019] KEELC 2223 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT KISII

CASE NO. 1266 OF 2016

(FORMERLY HCC NO. 192 OF 1997)

OMURWA OTWORI..............................................................1ST PLAINTIFF

VERSUS

SIMEON CHANGE...........................................................1ST DEFENDANT

PETER MOCHERE ANGWENYI.................................2ND DEFENDANT

J U D G M E N T

1. The Plaintiff instituted the instant suit vide a plaint dated 2nd May 1997. The Plaintiff’s claim was that he was the registered owner of land parcel Central Kitutu/DarajaMbili/379 within Kisii Municipality (hereinafter referred to as “the suit property”). The Plaintiff further averred the 1st Defendant on unknown dates between December 1975 and August 1976 fraudulently caused the suit property to be transferred into his name purporting the suit property had been sold to him by the Plaintiff. The Plaintiff further stated sometime in 1991 the 2nd Defendant wrongfully and unlawfully entered onto a portion of the suit property and commenced the construction of a house thereon without the consent of the Plaintiff.

2. The Plaintiff contended the actions of the 1st and 2nd Defendants were unlawful and prayed for judgment against the Defendants jointly and severally for:

(a) A declaration that the 1st Defendant holds the suit land parcel No. Central Kitutu/Daraja Mbili/379 on trust for the Plaintiff.

(b) Rectification of the register by cancelling the name of the 1st Defendant as proprietor of the said suit land and reinstating therefor the Plaintiff’s name in the same.

(c) ALTERNATIVELY for an order that the 1st Defendant do transfer the suit land unto the Plaintiff and in default of the 1st Defendant refusing and/or failing to obey the order of transfer the Deputy Registrar of the court do sign all documents and do all manner of things for effecting the said transfer unto the Plaintiff.

(d) An order directing the 2nd Defendant to remove the building structure he put up upon the suit land and in default of the said 2nd Defendant so doing the Plaintiff do have leave to remove the said structure at the 2nd Defendant’s expense.

(e) An injunction.

(f) Damages.

(g) Costs plus interest at court rates.

(h) Any further relief which this Honourable Court may deem just.

3. The 1st Defendant filed a statement of defence and counterclaim dated 18th June 1997. In the defence the 1st Defendant contended that he had bought the suit property sometime in 1975 and that the transfer to him of the property was procedurally and regularly effected at the lands office. He denied the allegations of fraud attributed to him by the Plaintiff in the Plaint. He pleaded a counterclaim averring that he had been in uninterrupted quiet possession of the suit property for over 22 years and sought judgment on the counterclaim against the Plaintiff for:-

a. A declaration that parcel number Central Kitutu/DarajaMbili/ 379 belongs to the 1st Defendant.

b. A permanent injunction restraining the Plaintiff either by himself or through his servants or agents from entering into and/or interfering with the suit land.

c. Costs of the suit.

d. Any other reliefs that the honourable court may deem fit and just to grant.

4. The Plaintiff replied to the defence and averred that the registration of the Defendant as owner of the suit land had been obtained fraudulently. The Plaintiff denied the 1st Defendant had ever been in possession of the suit land since being registered as owner.

5. The 2nd Defendant by a statement of defence dated 3rd March 1998 pleaded that he was a stranger to the suit and was wrongly enjoined. He further pleaded he was a purchaser for value without any notice of any defect in the title and denied the allegations of fraud in the plaint. He further averred the Plaintiff’s claim was statute barred and that the same ought to be struck off.

6. The suit has had a long history before the court. The case has been handled by not less than 8 Judges since it was filed in 1997. The suit was part heard before Wambilyangah J, (as he then was) on 12th May 2003 and on 23rd September 2003 when PW1 and PW2 testified, and before Okongo, J. on 3rd March 2014 when DW1 testified. The 2nd Defendant testified as DW2 before me on 13th November 2018 when the trial closed.

The Evidence by the Parties;

7. Andrew Mageka testified as PW1 on behalf of the Plaintiff (deceased) after he was substituted. He testified that his deceased uncle Omurwa Otwori was the registered owner of the suit property and produced a copy of the title deed and certified copy of the register (green card) as “PEx.1” and “PEx.2” respectively. The Plaintiff stated that the suit property belonged to Omurwa and that he never sold it to the 1st Defendant. He further stated his deceased uncle never married and had no children and that he treated him (the plaintiff) as his own child. He explained that they were the ones who were using the land and he was the one who was staying with the deceased. He said his deceased uncle was illiterate and that he could only sign by thumb printing. The Plaintiff produced in evidence a transfer document (PEx.3) purported to have been signed by Omurwa Otwori which he stated he could not have signed. He pointed out Omurwa Otwori’s ID Card No. in the certificate of title was different from the one in the form of transfer. He stated the ID No. KNS 14397 shown on the transfer was not correct indicating that Omurwa’s ID Number shown on the title as No. G90581 was the correct one. The Plaintiff further stated the transfer is shown to have been presented for registration on 30th December 1975 whereas the consent to transfer from the Kisii Town Council was indicated as having been obtained on 10th August 1976. The copy of the transfer indicates it was registered on 6th August 1976. The witness in cross examination denied the 1stDefendant constructed a house on the suit land in 1975. He stated that it was the 2nd Defendant who constructed the only house on the suit land in 1991 claiming he had bought the land from the 1st Defendant.

8. Raphael Omurwa Mutaruki (PW2) testified that Omurwa Otwori (deceased) was his cousin’s son. He stated that in 1975/76 he accompanied Aloyse Otete Otwori, a brother of the deceased to D. A. Onyancha Advocates office where he (Aloyse Otete) signed a document with the 1st Defendant. The witness stated it was the 2nd Defendant who built a house on Omurwa Otwori’s land and that the 1st Defendant never constructed any house on the suit land. The witness further stated it was Aloyse Otowri who sold the land to the 1st Defendant and not Omurwa Otwori. He further stated the 1st Defendant has never occupied the suit land and that it was the sons of the brother of the deceased who were in occupation of the land. He said the 2nd Defendant occupied the land for a short while but moved out when the deceased nephews became hostile.

9. DW1 testified that he purchased the suit property, Central Kitutu/ Daraja Mbili/379 in December 1975 for the price of kshs.3,500/=. He stated that he paid the full purchase price and that the plaintiff (deceased) executed the transfer in his favour. He stated he obtained the consent from Kisii Town Council on 10th August 1976 and was eventually registered as the owner of the property and issued with a title deed. He said he built two houses and a toilet on the land and planted trees. He stated he later sold a portion of the suit property to the 2nd Defendant who constructed a permanent house on the portion he had bought from him.

10. DW1 stated that in 1997 he was served with summons in the present case and it was at that time he found his houses had been demolished. He maintained he had lawfully purchased the suit property. The 1st Defendant in cross examination stated he sold a portion of the land to the 2nd Defendant vide an agreement for sale dated 6th July 1984. He stated he delineated the portion that the 2nd Defendant was buying from him. He admitted however he had not effected transfer of the portion of land to the 2nd defendant.

11. The witness cross examined by Mr. Bosire Advocate stated that the sale agreement he had entered into with Omurwa Otwori got misplaced. The 1st defendant stated he was informed at the lands office that consent was required but that since the land was not agricultural he only needed consent from the Kisii Town Council. He said he had put up 8 houses on the suit property prior to 1991 but stated he did not know when they were demolished as he was himself not occupying the houses. He said it was in 1997 when he learnt the houses had been demolished. The witness further stated that the deceased was staying on another parcel of land when he sold the suit property to him. The witness explained the variance in the deceased ID/Nos may have been owing to change of IDs during registration. He denied any wrongdoing in the process of acquiring the property.

12. DW2 testified that in 1984 he purchased a portion of land measuring 31metres by 41 metres from the 1st Defendant out of land parcel Central Kitutu/Daraja Mbili/379. He stated they had a written agreement made before an advocate who is now deceased. The 2nd Defendant stated that he paid the full purchase price and took possession of the portion sold to him and constructed a permanent house thereon which he moved into in May 1985. He said when he was transferred in 1987 and moved out he allowed some of his relatives to live in the house but in 1990/1991 they were threatened and moved out of the house. The house was vandalized and damaged. He stated he innocently entered into the sale transaction with the 1st Defendant and was unaware of any issues relating to the title to the land. The 2nd Defendant stated that he did not immediately deal with the processing of the title as the 1st Defendant was unavailable. The 2nd Defendant stated he did not know how the 1st Defendant acquired the title to the suit land. He further affirmed he had not gotten title to the portion he purchased but that he placed a caution over the parcel of land after he was forced to move out of the land by unknown persons.

13. The parties filed final closing submissions after the completion of the trial. After reviewing the pleadings and after considering the evidence and the submissions by the parties, the following issues arise for determination:

(i) Whether there was a valid sale agreement between the Plaintiff (deceased) and the 1st Defendant for the purchase of land parcel Central Kitutu/Daraja Mbili/379?

(ii) Whether the consent of the land control board was required for the transaction, and if so, whether such consent was obtained?

(iii) Whether the transfer of land parcel Central Kitutu/Daraja Mbili/379 was fraudulently effected and therefore null and void?

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

(v) Who should bear the costs of the suit?

14. The Plaintiff by the Plaint averred that the documents and/or instruments the 1st Defendant used to get the suit property transferred to his name were fraudulent and were forged. The Plaintiff asserted that the deceased had not sold any land to the 1st Defendant and thus he could not have executed any transfer in respect of the suit property. No agreement of sale was exhibited by the 1st Defendant who had alleged there was a sale agreement. The 1st Defendant in his evidence stated he had misplaced the agreement. The 1st Defendant did not rebut the evidence adduced by PW2 that it was the deceased’s brother one Aloyse Otete Otwori who together with the 1st Defendant went to the advocate’s office and signed a document. PW2 was emphatic Omurwa Otwori was not present at the advocate’s office. PW2 in his evidence stated:-

“I know Simon Change but not very well. In 1975/1976 Aloyse Otete Otwori who is a brother of Omurwa Otwori took me to capital hotel. He talked to a buyer of his land who was Simon Change. I did not take part in their talks. We went to an advocate office. The advocate was D. A. Onyancha. I was present when they signed a document. I am illiterate. I did not sign on a document.”

15. In his evidence the 1st Defendant stated the sale agreement with the Plaintiff (deceased) was made in David Onyancha’s office. The question however is whether the agreement was made with the deceased plaintiff or his brother Alloyse Otwori as stated by PW2. The 1st Defendant did not respond to the evidence by PW2 that it was indeed Alloyse Otwori who was selling his land and not Omurwa Otwori (deceased). The effect is that the court was left with two versions; firstly that it was the plaintiff (deceased) who attended before the advocate’s office; and secondly, that it was Alloyse Otwori, the deceased brother who was present and that he was selling his land or if not he was presenting himself as Omurwa Otwori and offering the latter’s land for sale. In the face of this conflict it is not possible to find and hold that there was sale agreement between the Plaintiff (deceased) and the 1st Defendant in the absence of the document evidencing the agreement. PW2 who was present at the advocate’s office gave evidence that Omurwa Otwori was not the one who was selling his land and this evidence was unchallenged. There was no proof of the sale agreement relied upon by the 1st Defendant.

16. The 1st Defendant predicated his assertion that there was an agreement between him and the deceased on the fact that there was an instrument of transfer (produced both by the plaintiff and the defendant in evidence) dated on 28th November 1975 that was purportedly executed by the deceased which was registered and title issued in his favour. The contention on the part of the Plaintiff was that the said transfer was not executed by the deceased. PW1 stated in his evidence that the deceased was illiterate and could not sign and that he could only thumb print yet the transfer was signed. The Plaintiff further pointed to the variance in the ID Numbers indicated on the transfer and the title held by the deceased. In the transfer the ID/No. is shown as ID/K SN 14397 while in the title issued to Omurwa Otwori (deceased) on 10th May 1974 his ID/No is shown as ID/G. 901581. This variance was not explained and left the question hanging – whether or not the two identity cards referred to one and the same person? On the evidence, it is not possible to find and hold that there was a valid sale agreement between the Plaintiff (deceased) and the 1st Defendant. That fact remains unproven. I therefore have to answer the first issue in the negative.

17. On the second issue, it is the submission of the Plaintiff that even if there was an agreement, the same became null and void as the requisite consent of the Land Control Board was not sought and obtained within the prescribed period under the Land Control Act Cap 302 of the Laws of Kenya. The suit property was freehold property situate within Daraja Mbili area of the Kisii Municipality. The court takes judicial notice that within Kisii Municipality there is the “Kisii Municipality Land Control Board” which handles all transactions falling under the provisions of the Land Control Act and would include all transactions relating to all freehold properties falling within the Kisii Municipality. This includes all properties within Daraja Mbili area which constitute freehold properties. Leaseholds within Municipalities are exempted from the operation of the Land Control Act since they are either issued by the Commissioner of Lands and/or the County or Municipal Councils (now County Government) and would relate to public land. The requisite consent for any transfer in regard to leaseholds would be given either by the Commissioner of Lands or the County or Municipal Council as the Lessors of the property as the case may be.

18. In the instant matter the 1st Defendant contended the suit property was within the Kisii Municipality and thus the consent of the Land Control Board was not a requirement. He however stated that when he presented the transfer for registration at the Lands Office, he was advised the consent of the Municipal Council was required and it was on that account that he stated he obtained the letter dated 10th August 1976 from the Kisii Town Clerk authorizing the transfer to him. It is notable that the purported transfer of the suit land was dated 20th November 1975, presented for registration at the lands office on 30th December 1975 and was registered on 6th August, 1976. The alleged consent issued by Town Clerk on 10th August 1976 could not therefore have been relied upon by the Land Registrar before effecting the registration as it was clearly issued after the registration had been effected. Notably also, no application for any consent was exhibited by the 1st Defendant.

19. A scrutiny of the form of transfer lodged for registration (on the reverse side) clearly shows the application to the Land Control Board for its consent was inbuilt and had to be signed by the owner as the applicant. The application was not made by the Plaintiff (deceased) and he did not sign the application. The chairman of the Divisional Land Control Board did not approve the transaction as there was no application made before him. It is not explainable why the Land Registrar proceeded to register the transfer yet there was no consent from the Land Control Board. The registration of the transfer in favour of the 1st Defendant was done irregularly and was null and void for want of the consent of the Land Control Board.

20. Section 6(1)(a) of the Land Control Act, Cap 302 of the Law of Kenya provides:-

(1) Each of the following transactions that is to say-

(a) the sale, transfer, lease, mortgage, exchange, partition or other disposal of or dealing with any agricultural land which is situated within a land control area;

(b) the division of any such agricultural land into two or more parcels to be held under separate titles, other than the division of an area of

Is void for all purposes unless the Land Control Board for the land control area or division in which the land is situated has given its consent in respect of that transaction in accordance with this Act.

21. The transaction related to a sale of land and definitely the consent of the Land Control Board was a prerequisite before the transfer could be effected. The consent purportedly issued by the Town Council was of no effect, firstly because it was issued after the event and, secondly was not a prerequisite. The Town Council may have had a reason to approve the sale by way of ensuring any dues payable to them either as rates or transfer fees was paid but statutorily the consent required was by the Land Control Board.

22. On the second issue therefore it is my finding and holding that the consent of the Land Control Board was a prerequisite for the transaction and none was obtained.

23. Having held that the consent of the Land Control Board was required and none was obtained, it follows that the transaction became void for want of the Land Control Board’s consent. The registration of the transfer without the consent of the Land Board was irregular and consequently null and void. There are many judicial decisions on the effect of lack of consent in regard to controlled transactions such as in the present case. The courts have been unanimous that any such transactions become null and void if the Land Control Board’s consent is not obtained within the prescribed period under the Act. See Karuri -vs- Gituru CA No. 25 of 1980 [1981] eKLR, Chemilil Sisal Estate Ltd -vs- Makongi Ltd [1967] EA 166 and Mwangi -vs- Mwenjathi [1980]eKLR.

24. The Court of Appeal in the case of Macharia Maina & 87 Others –vs- Davidson Mwangi Kagiri [2014] eKLR held that where a purchaser had paid the full purchase and had taken possession pursuant to the sale agreement and no consent of the Land Control Board was obtained a constructive trust arises and the vendor could be compelled to complete the transaction. The Court of Appeal recently sitting at Eldoret in the case of Willy Kimutai Kitilit -vs- Michael Kibet CA No. 51 of 2015 [2018] eKLR followed the decision in the case of Macharia Maina & 87 Others -vs- Davidson Mwangi Kagiri (supra) and under paragraph 26 of its judgment stated thus:-

“26. For the reasons in paragraphs 20, 21, 22, 23, 24 and 25 above, we are in agreement with the Macharia Maina decision that the equitable doctrines of constructive trust and proprietary estoppels are applicable and enforceable to land subject to the Land Control Board Act, though this is subject to the circumstances of the particular case. Upon the application of the equitable doctrines, the court in its discretion may award damages and where damages are an inadequate remedy grant the equitable remedy of specific performance.”

25. In the present case, the sale is not admitted by the Plaintiff (deceased) and the court has held that the sale was not proved. In the premises, the doctrines of constructive trust would be inapplicable.

26. The Court further having held that the transfer of the suit property was irregularly effected to the 1st Defendant, the title he acquired was null and void and is liable to be cancelled. The transfer did not pass any interest to the 1st Defendant and he therefore did not acquire any interest that he could sell and pass to the 2nd Defendant. Thus the purported sale of a portion of the suit property to the 2nd Defendant was null and void and of no effect. At any rate, the purported sale agreement between the 1st Defendant and the 2nd Defendant became null and void by operation of the law as no consent of the Land Control Board was sought and obtained as prescribed under the law.

27. On the whole assessment and evaluation of the evidence, I am satisfied that the Plaintiff has proved his case on a balance of probabilities and is entitled to judgment. The 1st Defendant’s counterclaim lacks any basis and was not proved on a balance of probabilities and I dismiss the same.

28. In the result, I enter judgment in favour of the Plaintiff and make the following final orders:-

1. That the transfer and registration of Land Parcel Central Kitutu/Daraja Mbili/379 in the name of the 1st Defendant was irregular and therefore null and void.

2. The Land Registrar Kisii is directed to cancel the title issued to the 1st Defendant in regard to land parcel Central Kitutu/Daraja Mbili/379 and restore Omurwa Otwori (deceased) as the registered owner.

3. The 2nd Defendant is ordered to remove any structure(s) he has constructed on the suit land within sixty (60) days from the date of this judgment failing which the Plaintiff will be at liberty to remove the structure(s).

4. The costs of the suit and the counterclaim are awarded to the Plaintiff.

JUDGMENT DATED, SIGNED AND DELIVEREDATKISIITHIS28TH DAYOFJUNE 2019.

J. M. MUTUNGI

JUDGE