[2023] KEELC 18433 (KLR)

Oriosa v Abusa (Environment and Land Appeal E020 of 2021) [2023] KEELC 18433 (KLR) (27 June 2023) (Judgment)

Neutral citation: [2023] KEELC 18433 (KLR)

Republic of Kenya

In the Environment and Land Court at Kisii

Environment and Land Appeal E020 of 2021

M Sila, J

June 27, 2023

Between

Peris Nyangara Oriosa

Appellant

and

Nyabuto Arambe Abusa

Respondent

(Being judgment on appeal against the decision of Hon. P.K Mutai, Senior Resident Magistrate, delivered on 18 October 2021 in the suit Kisii CMCC/ELC No. 296 of 2018)

Judgment

(Respondent having sued appellant claiming that appellant sold to him land that does not exist on the ground; Respondent’s evidence being that when he went to the ground he found another person claiming the land; case of appellant being that she sold to respondent land that exists both in title and on the ground; respondent not presenting any survey report or expert evidence or the Registry Index Map to demonstrate that the land does not exist; wrong in those circumstances for the Magistrate to conclude that the land does not exist; appeal succeeds and respondent’s suit ordered dismissed). 1. Through a plaint filed on 22 November 2017, the respondent sued the appellant over the land parcel Nyaribari Chache/B/B/Boburia/9223. That plaint was subsequently amended on 8 November 2019. The respondent pleaded that the appellant was the registered proprietor of this parcel of land; that she offered it for sale; and the respondent agreed to purchase it for Kshs 2,000,000/=. It was pleaded that a sale agreement was drawn and the respondent paid the purchase price; that he became registered as proprietor on 29 August 2011 and was issued with a title deed. The respondent pleaded that when he went to fence the land, he was stopped by another person, one Joseph Mato Ngoko. This prompted him to file a complaint against the appellant and her husband, one Francis Oriosa Orango.

2. It was pleaded that Mr Orango was arrested and charged with the offence of obtaining money by false pretenses but the case was terminated after it was confirmed that the title was genuine, and after the appellant helped the respondent locate the beacons and fenced the plot. It was pleaded that on 29 July 2012, the respondent sent his workers to reinforce the fence put up by the appellant, but he was arrested with the offence of trespass. While the case was pending, the complainant in that case fenced what he considered to be his property, which was Nyaribari Chache/B/B/Boburia/1989, and this encroached and cut off about ¾ of the suit property. In the plaint, the respondent pleaded that the appellant knew that there was no land to attach to the title Nyaribari Chache/B/B/Boburia/9223 and that she obtained money fraudulently alleging to be giving land which did not exist. He pleaded that the appellant knew that the land was subject of dispute in HCCC No 267 of 1996 which was determined against their (sic) favour and demolition orders issued. It was contended that the appellant concealed from the respondent the history of litigation around the parcel of land and that the appellant received money for a non-existing plot. In the amended plaint, the respondent asked for the following orders :-a.An order directing the defendant to refund the purchase price plus interest at existing court rates from the date it was paid in full to day of judgment.b.Costs of the suit.c.Interest at the court’s rate on (a) and (b) above from the date of judgment till payment in full.

3. The appellant filed defence where she admitted entering into a sale agreement for the suit land and that she effected transfer. She denied the rest of the contents in the plaint and asked that the respondent’s suit be dismissed with costs.

4. The matter was initially before the Environment and Land Court but was transferred to the Magistrates’ Court for disposal.

5. The respondent testified as the sole witness. He more or less reiterated what he had pleaded in the plaint. He had a report of the Land Registrar but he did not produce it. He also did not avail any survey report. During cross-examination, he did in fact state that he did not get a surveyor to determine the portion of land that he bought. He stated that he was not ready to incur additional costs having paid for the land and that the duty of the appellant did not end until he had taken possession. He asserted that the appellant was at fault because the land had a dispute. He refuted that it was the Land Registrar, or Joseph Mato Ngoko, the person who fenced the land, who were to blame.

6. The appellant also testified as the sole defence witness. Generally, her evidence was that she passed good title to the respondent. She produced criminal proceedings where the respondent (who was the complainant) withdrew the charges after confirming that the title was genuine. She stated that the suit land was transferred to her as a gift by her husband and she was in occupation before transfer was effected to her. She confirmed that it was Joseph Mato Ngoko who fenced the land. She was not aware of any land case between him (Ngoko) and her husband (Francis). Somewhere in the proceedings, it was mentioned that Francis was deceased.

7. In his analysis, the trial Magistrate correctly found that there was a sale between the parties wherein the suit property was transferred to the respondent. He also found that it was when the respondent went to the land that he was stopped by Mr Ngoko. He was aware of the criminal case that was withdrawn. He concluded that the defendant knew of the dispute relating to the land which led to the case Kisii HCCC No 269 of 1996 but chose to proceed with the transfer. He held that the appellant’s husband had lost the case and that he subsequently passed the land to the appellant who then passed the land to the respondent ‘within the quickest time.’ He concluded that there was mischief and that as a result the respondent lost both his money and the land. His view was that there was deception and that an innocent purchaser for value cannot be allowed to suffer. He held that the process of transferring the land while aware of its long dispute, and court findings going all the way to the Court of Appeal, was a clear indicator of fraud. He ordered the appellant to refund the purchase price with interest at court rates and awarded the respondent the costs of the suit.

8. Aggrieved, the defendant filed this appeal on the following grounds :-1. That the learned trial magistrate erred in law and fact in not finding that the defendant had a good title to pass.2. That the learned trial magistrate erred in law and fact by not holding that the plaintiff failed to establish the elements of fraud as required by law.3. That the learned magistrate erred in law and in fact in arriving at a decision against the weight of evidence and submissions on record by the appellant.4. That the learned magistrate erred in law and in fact in holding that the respondent was entitled to the refund of the purchase price not taking into consideration that the plaintiff was in occupation of the suit land and had the title deed resulting to unjust enrichment.5. That the learned trial magistrate erred in law and in fact by failing to consider the totality of the evidence before him and instead basing his decision on extrinsic evidence.6. That the learned trial magistrate erred in law and in fact by coming to the conclusion that the respondent had proved her case beyond reasonable doubt without calling an expert to determine whether the land existed or not.7. That the learned trial magistrate erred in law in not holding that the sale transaction between the parties was performed to its conclusion arriving at an inconclusive judgment.

9. In this appeal, the appellant seeks that the judgment be set aside and/or varied and for any other orders deemed just and expedient. She also seeks costs of this appeal and of the case in the subordinate court.

10. I directed that the appeal be argued by way of written submissions and I have seen the submissions of Mr Bosire Gichana, learned counsel for the appellant, and of Ms Nyabuto, learned counsel for the respondent.

11. In a nutshell, the complaint of the respondent was that the appellant sold to him land that did not actually exist on the ground. It is trite law, and I need not cite any authority, that the burden of proof is upon him who asserts. Thus, it was upon the respondent to table evidence that there was no such land identified by the title Nyaribari Chache/B/B/Boburia/9223. Did the respondent meet the threshold ? I do not think so.

12. First, the respondent never brought any surveyor or any other expert to demonstrate that this land parcel Nyaribari Chache/B/B/Boburia/9223 does not exist on the ground. He also did not even bother to present a copy of the Registry Index Map. On what basis then was he asserting that this land does not exist ? His only evidence was that he concluded that the land did not exist because when he went to take possession, he was repulsed by one Ngoko. I wonder on what basis he concluded that it was Ngoko who was correct in pointing out the boundaries when he himself never consulted a surveyor. It could very well be that it was Ngoko who had encroached and trespassed into his land.

13. I am aware that the respondent referred to previous proceedings where he husband to the appellant lost a dispute relating to boundaries over what was said to be the suit land, particularly the suit, Kisii HCCC No 267 of 1996. I have taken the trouble of going through the material presented relating to that case. I see that Francis had sued Mr. Ngoko and one Ambrose Bwoma Boruma. The parcels of land in dispute were Nyaribari Chache/B/B/Boburia 1990 and Nyaribari Chache/B/B/Boburia/1989. Francis owned the parcel No 1990 whereas Mr Ngoko has all along been the proprietor of the land parcel No.1989.

14. The case was decided in favour of Mr Ngoko and Francis ordered to move into his parcel No. 1990. Now, I have absolutely no evidence that the suit land herein, which is parcel No 9223, arose from a subdivision of the parcel No 1990 which was the land in dispute in the 1996 case. From what was presented, the suit land is a subdivision of the land parcel No.7608. I have not been given any relationship between this parcel No 7608 and the parcel No 1990. Even assuming that this land parcel No 9223 arose from the parcel No 1990, it was never declared that the parcel No 1990 does not exist. It was only that the boundaries of it were fixed. There is absolutely no evidence that, if the parcel No 9223 was carved out of the parcel No 1990, then it was the portion that was in dispute in the year 1996, and which Francis occupied and was asked to vacate, and that it is the same portion that constitutes the suit property. It was upon the respondent to adduce evidence to demonstrate all the above but he did not. He only concluded that he was given a bad title by believing what Mr Ngoko told him. Mr Ngoko could have told him anything. The respondent had the burden of verifying that what Mr Ngoko told him was correct. It could very well be that it is Mr Ngoko who has trespassed into a rightfully created title. Without expert evidence, I do not see how the trial magistrate could have correctly concluded that the suit land was non-existent, and that the sale was improper and a scheme to defraud the respondent. It will be recalled that the respondent had caused the appellant and her husband to be charged with the offence of obtaining money by false pretenses. He withdrew that suit. The words that he uttered when he withdrew the suit are important. He inter alia stated as follows :-I do confirm that I have obtained a land title in respect of the subject parcel of land and have no complaint against the accused persons. I now wish for withdrawal of the matter.”

15. He stated a second time when asked to confirm the withdrawal of the suit :I have come to court to have the complaint withdrawn as I have realised that the title issued to me is genuine. I have not been coerced or pressured to drop my complaint. I have agreed to withdraw the complaint from my own notion.”

16. It will be observed that he withdrew the complaint on the basis that what was sold to him was a good title. Of course, he could complain later, in a civil suit, if indeed there was no substance that was transferred to him, but as I have mentioned, there was no evidence that the suit land does not exist. If he was persuaded that it existed in the year 2012, when he withdrew the criminal charges, I wonder what it is that persuaded him that the land no longer existed in 2017 when he filed this suit. The mere fact that Mr Ngoko informed him that he was on his (Ngoko’s) land is not sufficient to demonstrate a fraudulent sale and not enough to prove that the land did not exist.

17. I am afraid that the trial Magistrate fell into error in his assessment of the evidence and came to a wrong conclusion. Moreover, if the trial Magistrate had thought that the land did not exist, and that the title was not anchored over the land, and proceeded to order a refund, then he ought to have made a corollary order that the respondent re-transfers the title back to the appellant. This was not done and in fact what happened is that it was the respondent who ended up with both the money and the land, and not the appellant, contrary to what the trial Magistrate concluded. But all this is not now relevant as I do find that this appeal is merited.

18. I allow the appeal and set aside the decision of the trial magistrate. I proceed to dismiss the respondent’s case in the subordinate court with costs. The respondent will also bear the costs of this appeal.

19. Judgment accordingly.

DATED AND DELIVERED AT KISII THIS 27 DAY OF JUNE 2023JUSTICE MUNYAO SILAJUDGE, ENVIRONMENT AND LAND COURTAT KISII