[2013] KECA 72 (KLR)

REPUBLIC OF KENYA

IN THE COURT OF APPEAL

AT KISUMU

(CORAM: ONYANGO OTIENO, AZANGALALA & KANTAI, JJ. A)

CIVIL APPEAL NO. 334 OF 2010

BETWEEN

PETERSON MOKAYA ABUTA ….........................................APPELLANT

AND

PERIS MORAA NYAATA ....................................................RESPONDENT

(Appeal from a Judgment of the High Court of Kenya at

Kisii (Musinga, J) dated 25th February, 2010

in

KISII HCCC No. 297 OF 2002

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JUDGEMENT OF THE COURT

This is an appeal from the judgement of Musinga, J (as he then was) delivered on 25th February, 2010 in the original HCCC No. 297 of 2002 at Kisii. The appellant Peterson Mokaya Abuta was the plaintiff while the respondent Peris Moraa Nyaata was the defendant. The suit involved a parcel of land known as Land Reference No. East Kitutu / Mwamang'era/1928 measuring 0. 092 hectare (the suit land) situated in Keroka area. The plaint was amended twice culminating in the one filed in court on 30th June 2003 where the plaintiff made various averments such as that the plaintiff leased the suit land to the defendant at an agreed annual rental; that the plaintiff sold two unrelated parcels of land to the defendant; that the plaintiff discovered that the defendant had fraudulently caused herself to be registered as the proprietor of the suit land; that the suit land was agricultural land where transactions were controlled transactions within the meaning of the Land Control Act; that consent of the relevant Land Control Board had not been obtained and for all these reasons the plaintiff was entitled to judgement against the defendant. The defendant filed a statement of defence where she denied the Plaintiffs claims and pleaded that she had purchased the suit land from the plaintiff and had undertaken all necessary processes for transfer which had been effected.

The suit was heard but the judge found no merit with it and dismissed it. That provoked this appeal.

Being a first appeal and although this Court will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence afresh, evaluate it and reach our own conclusion - See the case of Mwanasokoni v Kenya Bust Services Limited (Mombasa Civil Appeal No. 35 of 1985) (ur). Accordingly only when the finding of fact that is challenged on appeal is based on no evidence, or on a misapprehension of the evidence, or the Judge is shown demonstrably to have acted on wrong principles in reaching the finding he did will this court interfere with it – See also Ephantus Mwangi & Anor v Wambugu (1983/84) 2 KCA 100 and also Avtar Singh Chauhan v Ruth Wanjiru Shadrack & Anor (Nakuru Civil Appeal No. 234 of 2008) (ur).

Because we are entitled to re-examine the evidence as we carry out an enquiry whether the learned judge carried out his duty as required we therefore proceed to do so.

The plaintiff testified that he had known the defendant for many years and had sold two parcels of land to her. He denied selling the suit land to the defendant and denied either executing an agreement of sale, executing a transfer or appearing before a land control board for consent to transfer. In cross-examination the plaintiff denied executing agreements for sale even in respect of the two parcels of land he freely admitted to have sold to the defendant.

John Fundia (PW2) was the Registrar of Lands, Nyamira. He testified that he was unable to trace documents in respect of the suit land. He confirmed that the suit land which was initially registered in the plaintiffs name was later registered in the defendants name through a transfer. The witness produced various certified documents in respect of the suit land as exhibits.

For the defendant Charles Gitumwa (DW1), the District Officer, Rigoma Division testified that his duties included chairing meetings of the Land Control Boards for the area. The witness produced as exhibit in court minutes of a meeting that was held by the Land Control Board on 30th September, 1998 where the application by the plaintiff for consent to transfer the suit land to the defendant was tabled, considered and approved. The witness testified that such applications for consent of the land board were only entertained when the applicant (vendor) was present accompanied by family members or by the purchaser. According to this witness records showed that the plaintiff attended the said meeting and made the application for consent to transfer which application was approved.

Joshua James Owuor (DW2) was the District Land Registrar, Kisii / Gucha at the material time. He confirmed issuing to the defendant certified copies of documents in respect of the suit land. The original documents were in his custody when he certified the copies.

Stephen Omari Nyaberi (DW3), an Advocate of the High Court of Kenya who ran a law practice called Omari and Nyaberi Advocates, Kisii, testified that on 7th September, 1998 he attended to the plaintiff and the defendant as clients when they called on him. He drew an agreement for sale as per their instructions in respect of the suit land and witnessed the plaintiff and the defendant execute the same. He produced in evidence the counterpart of the agreement which he had retained and further testified that he knew both parties very well because he had acted for them in an earlier conveyance of another parcel of land. On why there was a discrepancy in the acreage of the land and also a wrong number for the plaintiffs identity card in the documents in support of the transaction on the suit land the witness explained that it happened through a typing error.

The defendant was the last witness. She testified on previous purchases of land she had made from the plaintiff and on purchase of the suit land. She stated that the purchase price for the suit land was Kshs. 200,000/= (two hundred thousand) which she paid through four cheques for Kshs. 10,000/= (ten thousand) each and Ksh. 30,000/= (thirty thousand) cash and the balance was paid after obtaining consent to transfer from Rigoma Land Control Board and upon the plaintiff executing a transfer for the suit land. She added that she attended the said board with the plaintiff stating further that the said board could not act on an application for consent in the absence of the seller of land. She thereafter obtained title and possession of the suit land and resided on the land at time of trial. She denied forging any documents and produced in evidence four counter-foil cheques she issued to Industrial & Commercial Development Corporation where the plaintiff was indebted and which she paid on his behalf as part of purchase price for the suit land.

The learned judge considered all this evidence and found that the appellant had not established any case.

In the Memorandum of Appeal drawn by the appellants Advocates M/s Reuben Masese & Company Advocates 19 grounds of appeal are taken which can be summarized as: that the learned judge erred in failing to appreciate the evidence presented; that the judge was in error in holding that there was a sale of the suit land; that the learned judge erred in finding that the plaintiff applied for consent of the land control board and/or obtained consent from the said board; that the District Land Registrar certified documents without seeing all of them which was wrong; that the learned judge erred in accepting documents which were not properly certified; that the judge erred in finding that the plaintiff attended the land control board; that the judge erred in finding that the sale transaction was valid; that the learned judge misapprehended the evidence before him; that the evidence of DW2 was hearsay and should not have been admitted; that the learned judge acted in error in proceeding with the suit without taking directions and that the learned judge erred in believing the evidence of the defendant which was contradictory and unworthy of belief.

The appeal came for hearing before us on 31st October, 2013 when the appellant was represented by learned counsel Mr. Reuben Masese while learned counsel for the respondent was Mr. J. M. Oguttu. Mr. Masese condensed the grounds of appeal into three clusters – First Cluster to represent grounds on the question whether the evidence before the learned judge supported the judgement; Second Cluster to be on whether there was a sale of land and the last Cluster to be on whether correct procedures to transfer the land were followed. Counsel, while answering all questions in the negative submitted that the appellants evidence that he did not sell land was truthful and should have been believed. Counsel submitted further that the agreement for sale produced in evidence by the respondent was fraudulent because it had the wrong acreage, a wrong postal address and the appellants identification card quoted was incorrect. Counsel submitted further that the agreement for sale did not indicate purchase price and witnesses called by the respondent were either not makers of documents or did not produce original documents.

Counsel for the appellant attacked the documents produced to support the allegation that the appellant had appeared before the land control board and either applied for or obtained consent of the same and argued further that the transaction was not above board.

Learned counsel for the respondent opposed the appeal and submitted that the learned judge had answered all questions raised in the judgement appealed from.

On whether there was a valid transaction counsel for the respondent submitted that both parties had appeared before an Advocate of the High Court of Kenya who had drawn the agreement which was executed before the Advocate. The Advocate testified in court on his role in the matter. Counsel for the respondent wondered why the appellant had not raised complaint with criminal investigations authorities if, indeed, documents had been forged or referred the matter to a document examiner for verification. Counsel submitted that the allegation of fraud had not been proved which it was the duty of the appellant to do and argued that the learned judge did not err in accepting certified documents. Counsel appeared to say that the appellant was estopped from attacking this part of the matter because admission of certified documents had not bee challenged in an appeal.

In the course of the judgement the learned judge drew four issues which he found calling for his determination as follows:

“1. Whether the plaintiff sold and transferred the suit land to the defendant.

2. Whether the plaintiff attended Rigoma Land Contro Board on 30th September, 1998.

3. Whether the sale and transfer of the suit land to the defendant was fraudulent.

4. Whether the defendant holds the suit land on trust for the plaintiff.”

On the first issue the learned judge found as fact that the appellant and the respondent had visited the offices of DW4 Omari Nyabera, Advocate, and executed an agreement for sale in respect of the suit land; that the said Advocate knew the appellant and the respondent before because he had acted for them in other transactions; that the advocate entered the appellants wrong serial number of national identification card by error and that the appellant had not, on a balance of probabilities, proved that he had not sold the suit land to the respondent.

On the second issue the learned judge found as fact that the appellant had appeared before the Rigoma Land Control Board on 30th September, 1998 as evidenced by the relevant minutes when the appellant presented an application for consent of the land control board which was considered and approved. The learned judge found the absence of a consideration in the application for consent of the land control board to be a non-issue.

On the third issue the learned judge found that the appellant did not prove the allegation of fraud either to the required standard or at all.

On whether the respondent held the suit land for the appellant the learned judge answered in the negative finding the issue to be moot.

On our own consideration we are of the respectful opinion that the issues that the learned judge found as the issues for his determination were correctly identified and are the same issues that are raised in this appeal.

Did the appellant sell the suit land to the respondent?

We have on our own perused the agreement for sale entered on 17th September, 1998 between the appellant and the respondent. It gives particulars of the parties; it identifies the parcel of land to be sold as the suit land; it gives consideration for the purchase as Kshs. 200,000/= to be paid in agreed installments including liquidation of the appellants loan account at Industrial & Commercial Development Corporation and the agreement is duly signed by both parties and witnessed by the advocate who testified in court on the contents thereof.

We have also perused the Application for Consent of Land Control Board that was made in respect of the suit land; the minutes of the Board which considered the application and Transfer of Land documents executed by the appellant and the respondent. We are persuaded that all these documents established the fact that the appellant sold the suit land to the respondent.

We have also considered the evidence that was produced before the learned judge. On the allegation that documents were forged the learned judge held that the appellant failed to prove fraud as required in law and cited the case ofKoinange & 13 others v Koinange[1968] KLR 23 where it was held that allegations of fraud must be strictly proved on a standard below beyond reasonable doubt but above the usual standard in civil proceedings.

We have considered the whole matter, the grounds of appeal and the submissions made before us and upon our own reconsideration of the matter we are unable to find fault with the way the judge arrived at his findings and conclusions in the judgement appealed from.

The result is that we have found no merit in this appeal which we accordingly dismiss with costs.

Dated and Delivered at Kisumu this 20th day of December, 2013

J. W. ONYANGO OTIENO

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JUDGE OF APPEAL

F. AZANGALALA

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL

I certify that this is a true

copy of the original

DEPUTY REGISTRAR