[2019] KECA 151 (KLR)

IN THE COURT OF APPEAL

AT MOMBASA

[CORAM: KARANJA, GATEMBU & SICHALE, JJA]

CIVIL APPEAL NO. 48 OF 2018

BETWEEN

PETER KIM BAKER..............................................................1STAPPELLANT

NISHA BALKRISHNA PATEL.............................................2NDAPPELLANT

ASHOK BALKRISHNA PATEL...........................................3RDAPPELLANT

AND

SIDI KATANA BONGO.......................................................1STRESPONDENT

BAHARI KATANA BONGO...............................................2NDRESPONDENT

(Being an appeal from the judgment and decree of the Environment and Land Court of Kenya at Malindi (Angote, J) delivered on 12th May, 2017

IN

E&LC No. 82 of 2013

***********************

JUDGMENT OF THE COURT

The appellants herein laid claim on two parcels of land namely,Kilifi/Mtondia/1113andKilifi/Mtondia/1114, (the suit lands) by institution of asuit against Sidi Katana Bongo (Sidi) and Bahari Katana Bongo (Bahari) (the then1st and 2nd defendants and now the 1st and 2nd respondents). In particular, all the3 appellants laid claim on title Number Kilifi/Mtondia/1113 whilst the 1st and 3rdappellants laid claim on title number Kilifi/Mtondia/1114.

The appellants averred that they are the registered owners of the suitlands, the 1st and 3rd appellants having purchased Kilifi/Mtondia/1114 from KengaKatana BongoandGaone Katana Bongoand all the 3 appellants having purchasedKilifi/Mtondia/1113fromKatana Bongo Masha(the deceased).

In a statement of defence and counter-claim, the respondents denied thatthere was a sale and further averred that Kenga Katana Bongo and Gaone KatanaBongo (who are sons of the deceased) had no authority to transferKilifi/Mtondia/1114.

The trial before Angote, J commenced on 12th November, 2015 and PeterKim Baker, the 1st appellant relied on his witness statement filed on24thJuly,2015in which he stated that on1stSeptember, 2009, he, together with the 2nd and3rd appellants entered into a sale/purchase agreement with the deceased in whichthey bought plot No. Kilifi/Mtondia/1113 for a sum of Kshs 7,857,780/= andobtained title on 21st January, 2010. Further, that on 15th September, 2010, he,together with the 3rd appellant entered into a sale/purchase agreement withGaone Katana Bongo and Kenga Katana Bongo for sale/purchase ofKilifi/Mtondia/1114for a sum ofKshs 6,000,000/=.They obtained title on5thMay,2011.

Then there was P.W.2 Joseph Katana Nzaro, an estate agent. His evidencewas that on or about the year 2009, the deceased asked him to sell plot No.Kilifi/Mtondia/1113. He testified that he later obtained instructions fromKengaKatana Bongo and Gaone Katana Bongofor sale ofKilifi/Mtondia/1114. In brief,he is the one who identified the purchasers of the two suit lands, the appellantsherein. He is also on record as having stated that towards the end of the year2009, he attended the deceased’s burial.

In the respondents’ defence, Bahari testified as D.W.1. It was hisevidence that his father (the deceased) had land measuring 13 acres, out of whichone acre was sold to one Saidi Hamisi Mohamed (Kilifi/Mtondia/1112); that theremaining 12 acres was subdivided into two parcels of 6 acres each for each of histwo wives, one being the 1st respondent (Sidi) and the other being the mother ofGaone Katana BongoandKenga Katana Bongo.According to him, the deceaseddied on 22ndJune, 2009, long before the alleged sale/purchase ofKilifi/Mtondia/1113.

Samwel Henry Katana Mlewa, a volunteer in a Human Rightsorganization testified as D.W.2. He came into the matter in a bid to assist therespondents. He told the trial court that the deceased had two wives, JumwaKatana BongoandSidi.

On her part, Sidi who testified as D.W.3 told the trial court that she wasthe 3rd wife of the deceased and that she together with her children live on parcelNo. Kilifi/Mtondia/1114. According to Bahari and Sidi, the two respondents,Kenga Katana BongoandGaone Katana Bongoare children of the deceased’s 1stwife.

In a judgment dated 12th May, 2017, Angote, J made the following findings:

“Considering that the plaintiffs knew or ought to have known before purchasing plot number 1114 that the defendants were living on the suit land and that the land initially belonged to Mzee Masha, they should have made further inquiries before entering into an agreement with the two vendors. The plaintiffs cannot therefore be said to be innocent purchasers for value without notice.

The totality of the evidence that was presented before the court shows that plot number 1114 was fraudulently transferred in favour of Kenga Katana bongo and Gaone Katana, who are the step sons of the 1stdefendant. The two sons of Mzee Masha then transferred the said

land to the plaintiffs, who knew or ought to have known, that the said land had been acquired by the two sons fraudulently.

“For those reasons, I find that the two plots that is Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114 were fraudulently transferred to the plaintiffs.

In the circumstances, I dismiss the plaintiff’s suit and allow the defendants’ counter-claim as follows:

(a) A permanent injunction be and is hereby issued restraining the plaintiffs, their servants, employees, agents or anybody acting through them from interfering with the defendants’ occupation of parcels of land known as Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114.

(b) An order be and is hereby issued to the Kilifi Land Registrar to cancel the Title Deeds that were issued to the plaintiffs in respect of parcels of land known as Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114 and replace them with the names of Katana Bongo Masha (deceased).

(c) An order be and is hereby issued to the Kilifi Land Registrar to rectify the register by cancelling the entries transferring the suit properties to the plaintiffs.

(d) The plaintiffs to pay the costs of the suit and the counter-claim”.”

Aggrieved with the decision of the learned Judge, the appellants moved tothis Court and in a Memorandum of Appeal filed in this Court’s Registry on 9thApril, 2018listed seven (7) grounds faulting the Judge for:

(i) failing to appreciate that the appellants were innocent purchasers for value who had no knowledge whatsoever of any alleged fraud;

(ii) failing to determine the issue of the purchase price paid by the appellants to the registered owners of the two properties and which proceeds of sale the respondents had partly benefitted from;

(iii) failing to appreciate that the vendors in both Plots were the registered owners at the time and were represented by counsel who executed and attested the sale agreement and transfer thereof as well as the disbursements of the proceeds of sale and no complaint has been made against the said counsel;

(iv) making drastic orders in relation to Plot No. Kilifi/Mtondia/1114 when the vendors thereof had not been enjoined in a Counter-Claim and had not been heard as to the manner in which they acquired the property prior to the disposal thereof to the appellants;

(v) entertaining the Counter-Claim as relates to the title to Plot No. Kilifi/Mtondia/1113when the respondents had no locus standi as they were not the Legal Representative to the Estate of the late Katana Bongo Masha;

(vi) failing to consider the evidence on record and further for failing to appreciate that the burden of proof lay squarely on the respondents in proving their Counter-Claim.

In their written submissions filed on 28th June, 2018, it was contended thata written statement filed by the 1st appellant showed that the appellantspurchased the Plot No. Kilifi/Mtondia/1113 from the registered owners, that isKatana Bongo Mashathrough a Sale Agreement dated1stSeptember, 2009for aconsideration of Kshs 7,857,780. 00; that as regards Plot No. Kilifi/1114, this waspurchased from Kenga Katana Bongo and Gaone Katana Bongo (the deceased’stwo sons) for a consideration of Kshs 6,000,000. 00 and that the vendorsrightfully owned the parcel of land as a share allotted to them by their late father;that upon registration of the transfer in the names of the two, a title deed wasissued; that there was sufficient evidence to show that the documents used forthe purchase and transfer of titles to the appellants were lawfully acquired; andthat there were no registered impediments hindering the vendors’ right to thetransaction of the suit properties. They relied on this Court’s decision of SophieWanjiku John vrs. Jane Mwihaki Kimani [2013] eKLRwhere it was held:

“To succeed in the claim for fraud, the appellant needed to not only plead and particularize it, but also to lay a basis by way of evidence, upon which the Court would make a finding”.

It was contended that in this case, the appellants were in possession of Plot No.Kilifi/Mondia/1113and were at all material times not in any way privy to anyfraudulent acts in relation to the purchase of the suit properties. The appellantsreiterated that having lawfully acquired the suit properties and having takenpossession of the same, they had undertaken substantial developments thereonof which they are bound to suffer drastic loss in the event that the titles arecancelled and rectified. It was further contended that the respondents were intemporary occupation of Plot No. Kilifi/Mtondia/1114 and the respondents hadexecuted a deed to vacate the said plot upon receiving payments from the vendorsof the suit property. The appellants faulted the trial court for failure to upholdthat the appellants had lawfully acquired title to the suit properties.

On the issue of locus standi, the appellants submitted that since therespondents had not applied for or acquired letters of administration in respectof the estate of the deceased, they had no locus standi to challenge thetransactions relating to Plot No. Kilifi/Mtondia/1113 or sustain a Counter-Claim.

They cited Section 82(a) of the Law of Succession Act which provides:

“Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers:

“

(a) To enforce, by suit or otherwise all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate”

The appellants submitted that for one to have authority and locus standi torepresent and /or bring a suit on behalf of the estate of a deceased, they must haveobtained letters of administration. They referred the Court to the Court of Appealdecision in Rajesh Pranjivan Chudasam vs. Sailesh Pranjivan Chudasama [2014]eKLR where it was held:

“It therefore matters not that the respondent had a cause of action. Indeed the issue was not whether he had a cause of action or not but that he lacked the requisite locus standi to seek relief from the Court with first obtaining letters of administration.”

The appellants therefore submitted that the respondents were notproperly in Court as they lacked the locus standi to sustain a suit in respectto the estate of the late Mzee Katana Masha Bongo and urged the Court toallow the appeal with costs and to dismiss the respondents’ Counter-Claimwith costs to the appellants.

The appeal came before us for plenary hearing on 27th May, 2019, Mr.Nyongesa Wafula,learned counsel for the appellants highlighted the appellants’submissions filed on 28th June, 2018. He also relied on the list of authorities filedon 4th July, 2018. Counsel reiterated that the two suit lands were purchased in aspan of one year; that Kilifi/Mtondia/1113 was purchased from the deceased videan agreement dated 1st September, 2009; that the deceased attended the LandControl Board, who gave its consent on 3rd September, 2009; that P.W.2confirmed that he attended the deceased’s burial towards the end of 2009 andhence the death certificate dated 4th April, 2011 indicating the date of death as23rdJune, 2009was suspect; that the appellants upon purchase took possession ofthe suit lands and established a quarry business which they operated for two (2)years prior to the court action.

As for plot No. Kilifi/Mtondia/1114, Counsel contended that this waspurchased from Kenga Katana Bongo and Gaone Katana Bongo who had titleissued in their names and hence the duo had every right to enter into thesale/purchase agreement of 15th September, 2010 with the 1st and 3rd appellant.Further, that the 2nd respondent agreed to move out of parcel No.Kilifi/Mtondia/1114upon the payment ofKshs 900,000/=.The appellants assertedthat they were bona fide purchases for value. It was also the appellants’ positionthat the two respondents had no locus standi as they had no authority to act onbehalf of the deceased before obtaining letters of administration.

In opposing the appeal, Mr. Muchiri, learned counsel for the respondentsrelied on the respondents’ submission filed on 7th September, 2018. It wascounsel’s submissions that the sale/purchase of the suit lands and the subsequenttransfers were tainted with illegality; that the death certificate No. 028001 issuedon 4th April, 2011 attested to the date of death of the deceased as 23rd June, 2009;that subsequently, the death of the deceased was registered on 30th June, 2009and certificate issued on 4th April, 2011); and, finally that the two brothers (KengaKatana Bongo and Gaone Katana Bongo)had no capacity to sell land that belongedto their late father without having obtained letters of administration in respectof the estate of their late father.

We have carefully considered the record, the rival submissions of theparties, the authorities cited and the law.

As this is a first appeal, we are enjoined by law to re-evaluate the evidencerelied on by the trial court and arrive at our own independent conclusion. In sodoing however, we should never lose sight that unlike the trial court, we did nothave the benefit of seeing or hearing the witnesses. In Selle vs. Association ofMotor Boat Co. of Kenya & others [1968] EA 123it was stated:

“I) an appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally.

An appeal to this court from a trial by the High Court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.

In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955)22 EACA 270”.

Therefore, we would be hesitant to reverse the decision of the trial Judge on findings of facts. We will only do so if, first, it appears that the Judge failedto take into account particular circumstances or probabilities material for theevaluation of the evidence, or secondly, that the Judge’s impression based on thedemeanour of a material witness was inconsistent with the evidence in the casegenerally; or thirdly, the finding is based on no evidence, or the Judge is showndemonstrably to have acted on wrong principle(s).

For a start, it is common ground that the suit lands were properties of thedeceased. It is also not in contention that Sidi and Bahari were wife and son ofthe deceased respectively. Kenga Katana Bongo and Gaone Katana Bongo werealso deceased’s sons being sons of the deceased’s first wife. It is also not denied that Sidi and her children lived on one of the suit lands, namely,Kilifi/Mtondia/1114. From the record, title numberKilifi/Mtondia/1113wasissued to the deceased (whose ID Number was [.......]) on 13th March, 2009.

On 21st January, 2010, this title was transferred to the three appellants vide atransfer dated 19th December, 2009 on the basis of an agreement allegedly dated1stSeptember, 2009. The application to the Land Control Board was allegedly signed /thumb printed on 6th August, 2009 by the deceased and the Land ControlBoard consent obtained on 3rd September, 2009. On the transfer document, thereis a thumb print allegedly made by the deceased and witnessed by K. N. WaweruAdvocate.It is noteworthy that this Advocate was not called as a witness to rebut the evidence that as at 19th December, 2009 when he issued the certificateattesting to the deceased’s thumb print, the deceased was no longer alive.

Title number Kilifi/Mtondia/1114, was similarly issued to the deceased on13thMarch, 2009. It is alleged that vide an instrument bearing a thumb print, the deceased transferred this parcel to Kenga Katana Bongo and Gaone Katana Bongo in consideration of Kshs 300,000. 00 This transfer is alleged to have been registered on 15th June, 2009. It is on this basis that Kenga Katana Bongo andGaone Katana Bongobecame the registered owners ofKilifi/Mtondia/1114. Thelearned judge summed up the position as follows:

“The totality of the evidence that was presented before the court shows that plot number 1114 was fraudulently transferred in favour of Kenga Katana Bongo and Gaone Katana, who are the step sons of the 1stDefendant. The two sons of Mzee Masha then transferred the said land to the plaintiffs, who knew or ought to have known, that the said land had been acquired by the two sons fraudulently. For those reasons, I find that the two plots that is Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114 were fraudulently transferred to the plaintiffs”.

Clearly, the two parcels of land belonged to the deceased who had at leasttwo (or 3 wives) – as Sidi said she was a 3rd wife. Although it was alleged that the deceased transferred plot No. Kilifi/Mtondia/1113, this was long after he had died.

The death certificate showed that the deceased died on 23rd June 2009 and the registration of his death was made on 30th June, 2009 and a certificate of death issued on 4th April, 2011. Having died on 23rd June 2009, the deceased could notpossibly have been present on 1st September, 2009 to execute the sale agreement, he was also not there to thumb-print the application to the Land Control Boarddated 6th August, 2009 neither did he attend the Land Control Board meeting on3rdSeptember, 2009nor execute the transfer witnessed byWaweru Advocateon19thDecember, 2009. He could not have done these from the grave. It is for these reasons that we find that the purported sale of Kilifi/Mtondia/1113 by the deceased was fraudulent.

As for plot No. Kilifi/Mtondia/1114, it was alleged that the 1st and 3rd appellants purchased it vide an agreement dated 15th September, 2010 from KengaKatana BongoandGaone Katana Bongo.It is common ground that the two arethe deceased’s children from his 1st wife. As stated above, this parcel is alleged to have been transferred to the two brothers on 15th June, 2009 for a paltry sum ofKshs 300,000. 00 as indicated on the purported letter of consent dated 19th March,2010. However, the undated application to the Land Control Board indicates theestimated value as Kshs 3,000,000. 00 and that the land was given to the two by way of a gift. If this be the case, the land control Board consent should not have indicated that Kshs 300,000. 00 was the “consideration” between the deceased andKenga Katana Bongoand his brotherGaone Katana Bongo. It is this same parcel of land that the 1st and 3rd appellants allegedly purchased from the duo vide an agreement of 15th September, 2010 for a sum of Kshs 6,000,000. 00 Several issuesarise. Sidi and her children live on this parcel of land. Kenga Katana Bongo andGaone Katana Bongoare from the deceased’s 1st wife and there is evidence thatthe 1st wife’s house lived on Kilifi/Mtondia/1113 and not Kilifi/Mtondia/1114.

Indeed, an attempt was made to pay Sidi money so as to move out ofKilifi/Mtondia/1114. There is an agreement dated 12th July, 2011 allegedly byKenga Katana BongoandGaone Katana Bongoon the one part andKatana SidiBongo, who it referred therein as “tenant”. She was to be paid Kshs 500,000. 00 so as to move out of the “... property within 21 days”. This agreement is “signed bythe owners” (Kenga Katana BongoandGaone Katana Bongo) and it is thumb-printed by the “tenants”. There is also an agreement dated 25th July, 2011 made before the Assistant Chief, Kilifi between Kenga Katana Bongo and Gaone Katana Bongowho were to pay Kshs 900,000. 00 toSidi. The agreement is referenced“MAPATANO BAINA YA KENGA KATANA BONGO NA MAMAKE MDOGO, SIDI CHANZERA”. Admittedly,Sidiwas the deceased’s wife and she resided onparcel No. Kilifi/Mtondia/1114. It was therefore wrong for her to be referred by her two step-sons as a “tenant”. It is our considered view that the two agreementsare proof that Sidi & her children lived on parcel known as Kilifi/Mtondia/1114. Contrary to what Kenga Katana Bongo and Gaone Katana Bongo depicted her in the agreement of 12th July, 2011, Sidi was not a “tenant” on parcel of land knownas Kilifi/Mtondia/1114.

Any attempt by Kenga Katana Bongo and Gaone Katana Bongo to sell land where their step mother (Sidi) and her household reside smacks of fraud. In anyevent, there was no evidence of payment of Kshs 300,000. 00 to the deceased by his two sons, Kenga Katana Bongo and Gaone Katana Bongo and as stated above, the application to the Land Control Board indicated that this was a gift to the two by the deceased. It could not be a gift as this was the land where Sidi and the children lived as opposed to parcel No. Kilifi/Mtondia/1113 where the deceased’s first wife and her children occupied. Again, as shown above, the two parcels of land belonged to the deceased. The position in law is that no person is permittedto deal with property of a deceased person without obtaining grant of letters of administration. Section 45 (1) of the Law of Succession provides:

“45(1) No intermeddling with property of deceased person except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person”.

In this matter Kenga Katana Bongo and Gaone Katana Bongo sold property belonging to the deceased. They did not have letters of administration and hence had no authority to sell. Any sale and/or transfer was therefore void ab initio.

As for the contention that Sidi and Bahari had no letters of administrationand hence could not act on behalf of the deceased, our response is simple. It is the appellants who filed suit against the two on the basis that they occupiedKilifi/Mtondia/1114. The appellants cannot now turn round and say that the two have no locus standi having been sued by virtue of being in occupation ofKilifi/Mtondia/1114, they did not need to have letters of administration to defend their right of occupation.

It is for the foregoing reasons that we find no merit in this appeal. It ishereby dismissed with costs to the respondents.

Dated and delivered at Malindi on this 28th day of November, 2019.

W. KARANJA

......................................

JUDGE OF APPEAL

S. GATEMBU KAIRU, FCIArb

......................................

JUDGE OF APPEAL

F. SICHALE

.....................................

JUDGE OF APPEAL

I certify that this is a

true copy of the original.

DEPUTY REGISTRAR