[2013] KEHC 2162 (KLR)

NO.124

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL CASE NO. 178 OF 2006

THE REGISTERED TRUSTEES

FULL GOSPEL CHURCHES OF KENYA………….………………..PLAINTIFFS

VERSUS

JOHN MORWANI NYAKUNDI……………………………….1ST DEFENDANT

FRED MORARO NYAMBEGA……………………………….2ND DEFENDANT

FRANCIS MORAGU alias PASTOR KARIUKI……………3RD DEFENDANT

REGISTERED TRUSTEES REDEEMED

GOSPEL CHURCH OF KENYA……………………………….4TH DEFENDANT

JUDGMENT.

The Plaintiffs are the registered trustees of Full Gospel Churches of Kenya. For the purposes of this judgment, the registered trustees of Full Gospel Churches of Kenya and Full Gospel Churches of Kenya shall all be referred to jointly and severally where the context so admits as “the plaintiffs”. The

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plaintiffs brought this suit against the defendants on 18th December, 2006 by way of a plaint dated 5th December, 2006. The plaintiffs sought the following reliefs;-

A declaration that the registration of land parcel No.NYARIBARI CHACHE/KEUMBU/2141 in the name of REDEEMED GOSPEL CHURCH was fraudulent and null and void and that the same parcel of land belongs to the plaintiffs;

An order for the rectification of the register in respect of the suit land by deleting the name of REDEEMED GOSPEL CHURCH P.O. Box 178, KISII and inserting that of the REGISTERED TRUSTEES FULL GOSPEL CHURCH OF KENYA OR in the alternative an order that the Defendant do transfer the suit land in favour of the Plaintiffs;

An order for the executive officer of this court to sign the documents and/or instruments so as to effect transfer and registration of the suit land in favour of the plaintiffs in default of the Defendants doing so;

An order of injunction restraining the defendants by themselves, their agents, servants and/or employee

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from entering onto or in any manner whatsoever interfering with the suit land or the Plaintiffs’ occupation thereof;

Costs of the suit and interest thereon at court rates;

Further or other relief deemed just.

The plaintiffs’ claim against the defendants as pleaded in their plaint is as follows:-

Sometimes in the year 1999, the plaintiffs bought a piece of land measuring 0. 05 hectares at Keumbu at a consideration of Ksh. 110,000. 00 for the purposes of putting up a church building for its members in the area. The said piece of land was a portion of a larger parcel of land known as L.R. No. Nyaribari Chache/ Keumbu/ 1137(hereinafter referred to as “Plot No.1137”). Plot No. 1137 went through several sub-divisions that ultimately gave rise to L.R.No. Nyaribari Chache/ Keumbu/ 2141(hereinafter referred to as “the suit property”) which is the portion of the original Plot No.1137 that was

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purchased by the plaintiffs. The plaintiffs claimed that, in the month of June, 2003 the defendants, jointly and severally fraudulently and unlawfully caused the suit property to be transferred and registered in the name of the Redeemed Gospel Church whose trustees are the 4th defendant thereby depriving the plaintiffs of the same. Redeemed Gospel Church and the 4th defendant shall all be referred to hereinafter jointly and severally as “the 4th defendant” where the context so admits. In the same year, the 4th defendant filed a suit against the plaintiffs at the Senior Resident Magistrate’s court at Keroka in, Keroka SRMCC No.224 of 2003 seeking the eviction of the plaintiffs from the suit property. The plaintiffs filed a counter-claim in the said suit seeking a declaration that the plaintiffs are the lawful owners of the suit property and a rectification of the register of the suit property by the cancellation of the name of the 4th defendant as the registered

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owner of the suit property and the registration of the plaintiffs as the owners thereof. The court at Keroka dismissed the 4th defendant’s claim against the plaintiffs with costs. On the plaintiffs’ counter-claim, the court held that it had no jurisdiction to grant the reliefs that had been sought by the plaintiffs. The plaintiffs were advised by the said court to institute their claim in a court of competent jurisdiction. The plaintiffs claimed that after the said decision by the court at Keroka, the defendants started threatening the plaintiffs with eviction from the suit property and despite demand; the defendants refused and/or declined to transfer the suit property to the plaintiffs and to stop the said threats. It was on account of the foregoing that the plaintiffs were forced to file this suit.

The 1st, 2nd and 3rd defendants filed a joint statement of defence dated 5th February, 2007 on 9th February, 2007. The 1st, 2nd

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and 3rd defendants denied the plaintiff’s claim in its entirety and termed the same as “incongruous, an affront to mandatory legal provisions and an abuse of the process of the court”. The 1st, 2nd and 3rd defendants urged the court to dismiss the plaintiffs’ suit with costs. The 4th defendant appointed the firm of Omariba & Co. Advocates to act for it. The said law firm filed a notice of appointment of advocate on 6th July, 2007. For reasons which are not clear from the record, the said firm of advocates which participated fully in the interlocutory application for injunction that was filed herein did not file a statement of defence on behalf of the 4th defendant to the plaintiffs’ claim.

This suit was fixed for hearing on 12th November, 2012. On that day, only the plaintiffs’ advocate appeared in court. The defendants’ advocates failed to attend court although due service of a hearing notice was effected upon them. On

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perusing the court file, the court noted that the parties had not exchanged bundle of documents and witness statements in compliance with the provisions of Order 11 of the Civil Procedure rules. The court ordered the parties to exchange bundle of documents and witness statements and also to agree on issues for trial failure to which each party was given the liberty to file separate issues. The matter was listed by the court for mention on 6th December, 2013 to confirm if the parties had complied with the said pre-trial directions. On 6th December, 2013, once again, only the plaintiffs’ advocate appeared in court. The defendants’ advocates failed to attend court despite service upon them of a mention notice by the plaintiffs’ advocates. Since all the parties had not complied with the pre-trial directions that the court had given on 12th November, 2012, the matter was fixed for further mention on 23th January, 2013 and the parties were ordered to comply.

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On 23th January, 2013, as had become the norm, only the plaintiffs’ advocate appeared in court and upon confirmation by the court that the plaintiffs had complied with the pre-trial directions, the court set down this case for hearing on 16th April, 2013 and directed the plaintiffs’ advocates to serve a hearing notice upon the defendants.

When the matter came up for hearing on 16th April, 2013, just like in the previous occasions, only the plaintiffs’ advocate and the plaintiffs’ witnesses turned up in court. The defendants and their advocates failed to attend court for the hearing. Upon satisfying myself that the defendants’ advocates were duly served with a hearing notice, I allowed the plaintiff’s advocate to proceed with the hearing in the absence of the defendants. The plaintiffs’ advocate notified the court that the 1st defendant is deceased and that the plaintiffs’ claim is maintainable as against the remaining defendants. The

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plaintiffs called three witnesses namely, EZEKIEL KIMAIGA MOKUA(“PW1”), SAMUEL MAKORI OKIAMBA(“PW2”) and LAWRENCE NYARIKI ONDIEKI(“PW3”).

PW1 is a pastor with the plaintiffs and one of the plaintiffs’ registered trustees. In his testimony, he stated that the plaintiffs have a church at Keumbu(hereinafter referred to only as “Keumbu church” or “ the church”) which he pastored between 1989 and 1996 and again between 2002 and 2012. When he was a pastor at Keumbu church between 1989 and 1996 the church was conducting its services from rented premises. After his transfer to another region, the pastor who took over from him, a Mr. Samuel Makori(PW2) arranged for the plaintiffs to purchase a piece of land for Keumbu church . When he was posted back to Keumbu church in the year, 2002, the plaintiffs had purchased the said piece of land and put up a temporary structure made of iron sheets in which Keumbu

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church was now worshipping. The plaintiffs had also paid the purchase price in full but had not obtained a title deed for the said piece of land. The plaintiffs had in their possession the Agreement for sale between the Plaintiffs and the vendor, one, Hana Muhonja Onsembe dated 15th October, 1999. The Plaintiffs also had letters that the vendor signed acknowledging receipt of the purchase price. The said Agreement for sale and letters of acknowledgment were produced as plaintiffs’ exhibit 3(a), (b) and (c). PW1 testified further that, the piece of land that the Plaintiffs had purchased was a portion of Plot No. 1137. This plot was sub-divided and the portion on which the Plaintiffs’ land was situated became Plot No. 2020.

He stated further that the Plaintiffs went to the Land Control Board and obtained consent to sub-divide the said plot No.2020 so that the plaintiffs could secure a separate title deed

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in the name of the Plaintiffs for its portion of the said parcel of land. After the sub-division exercise was concluded, the plaintiffs did not get a title deed for the piece of land that the plaintiffs had purchased. The plaintiffs’ piece of land that was given reference number LR. No. Nyaribari Chache/Keumbu/2141 (“the suit property”) after the said sub-division was instead registered in the name of the 4th defendant on 6th June, 2003. During sale transaction, the 1st and 2nd defendants were members of Keumbu Church and were designated as church elders. The 1st and 2nd defendants executed the agreement for sale of the suit property as witnesses. PW1 testified further that it was the 1st and 2nd defendants who fraudulently caused the suit property to be registered in the name of the 4th defendant instead of having the same registered in the name of the plaintiffs. He stated that the 1st and 2nd defendants had no authority from the plaintiffs

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to have the suit property registered in the name of the 4th defendant. PW1 produced a certificate of official search as plaintiffs’ exhibit 4. The said certificate showed that the suit property was registered in the name of the 4th defendant. He stated that the 3rd defendant was at all material times a pastor with the 4th defendant at its church at Keumbu which church had its own separate place of worship on a different piece of land. He stated that in addition to the church building which the plaintiffs had put up on the suit property, the plaintiffs had also put up a pit latrine and a borehole. The plaintiffs had also connected electricity to the premises. PW1 testified about the case that the 4th defendant filed against the plaintiffs at Keroka and the outcome thereof. He produced as exhibits copies of the proceedings and judgment made in the said case. The same were marked as plaintiffs’ exhibit 5(a) and (b). PWI also produced in evidence a copy of the plaint and a copy of the

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defence that were filed in the said case which were marked as plaintiffs’ exhibit 6(a) and (b) respectively. He stated that after the case at Keroka was concluded, the 1st and 2nd defendants caused fracas at Keumbu church which forced the church members to relocate to another area for the sake of peace as they pursue this claim. He stated that it is the 2nd defendant who is now conducting church services at Keumbu church building. He testified that what the plaintiffs want is possession of the suit property and an injunction to restrain the defendants from interfering with their church services on the suit property.

PW2 is the current pastor at Keumbu church. He was also the pastor in charge of the same church in 1999 when the plaintiffs purchased the suit property. In his testimony, he stated that he was involved in the process of looking for a piece of land for Keumbu church for the plaintiffs to buy. He also participated in

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sourcing for funds once the land had been found to pay the purchase price. He was one of the signatories to the Agreement for sale on behalf of the plaintiffs. The other signatory was the 1st defendant. He stated that the suit property was registered in the name of the 4th defendant after his transfer from Keumbu to another area. PW2 testified that the 4th defendant was not involved in any way in the purchase of the suit property and that the purchase price for the suit property was paid in full by the plaintiffs. He stated further that Keumbu church has now been forced to conduct church services from rented premises because the suit property has been taken over by the 2nd defendant who is the one now conducting church services therefrom. He stated that the 4th defendant has its own church premises from where it is operating and that the 2nd defendant is no longer working under the 4th defendant.

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PW3 is a member of Keumbu church. PW3 together with the 1st and 2nd defendants were church elders at Keumbu church when the plaintiffs purchased the suit property. He signed the Agreement for sale of the suit property as a witness on behalf of the plaintiffs. He confirmed that the 1st and 2nd defendants also signed the said agreement in that capacity. He stated that the Plaintiffs paid the full purchase price for the suit property. He testified that the plaintiffs were represented at the Land Control Board by the 1st and 2nd defendants and that the 4th defendant was not at all involved in the purchase of the suit property. According to him it is the 1st and 2nd defendants who caused the suit property to be registered in the name of the 4th defendant when they attended the Land Control Board meeting to obtain consent to transfer the suit property to the plaintiffs. PW3 confirmed the testimony of the PW1 and PW2 that it was the 2nd defendant who is now operating from the suit property.

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PW3 stated that the suit property belongs to the plaintiffs and not the 4th defendant.

After the close of the plaintiffs’ case, the plaintiffs’ advocates filed written submissions. The same was filed in court on 8th May, 2013. In their written submissions, the plaintiffs reiterated their claim against the defendants as pleaded in the plaint and framed a total of four (4) issues for determination by the court namely:-

Whether the plaintiffs purchased the suit property.

Whether the registration of the suit property in the name of the 4th defendant was fraudulent.

Whether the plaintiffs are entitled to the orders sought.

Who is liable to pay the costs of this suit?

The plaintiffs submitted that they have placed sufficient evidence before the court to prove that the suit property was purchased by the plaintiffs. The plaintiffs submitted further

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that the same evidence points clearly to the fact that the 1st and 2nd defendants caused the suit property to be transferred to the 4th defendant fraudulently. The plaintiffs submitted that the 4th defendant neither purchased the suit property nor paid the purchase price. The suit property could therefore have been transferred to the 4th Defendant only through acts of fraud. In conclusion the plaintiffs submitted that they are entitled to the prayers sought.

I have considered the pleadings, the evidence tendered by the plaintiffs and the submissions by the plaintiffs’ advocates. I am in agreement with the plaintiffs on the issues that arise for determination in this suit. I will consider these issues hereunder in the order in which they have been set out in the plaintiffs’ submissions.

Issue No.I.- Whether the plaintiffs purchased the suit property;-

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PW1, PW2 and PW3 testified that the suit property was purchased by the plaintiffs. PW1 produced as an exhibit the agreement for sale of the suit property between the plaintiffs and one, Hana Muhonja Onsembe who was the vendor thereof. PW1 also produced as exhibits letters signed by the said Hana Muhonja Onsembe acknowledging receipt of payment of the purchase price for the suit property. In the proceedings that took place before the Senior Resident Magistrate’s court at Keroka that were produced herein as Plaintiffs’ exhibit 5(b), Hana Muhonja Onsembe had testified that she sold the suit property to the plaintiff. In his evidence given before the same court, the 1st defendant had testified that “at the time, we were buying the land as officials of Full gospel churches of Kenya with which we were affiliated”. On his part the 2nd defendant testified before the said court that they purchased the suit property as members of the plaintiffs and that they later on

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decided to change the name of the plaintiffs from Full Gospel church to Redeemed Gospel church and according to him, “the effect of changing names was that the property also went to Redeemed Gospel Church. The title deed was then acquired in the name of the Redeemed gospel church”. The Senior Resident Magistrate court at keroka considered this evidence and ruled that the 1st and 2nd defendants had failed to prove the 4th defendant’s claim over the suit property. The 4th defendant’s claim against the plaintiffs before that court over the suit property was dismissed with costs. There is no evidence that any appeal was filed by the 4th defendant against the said decision. The 4th defendant’s claim over the suit property was therefore laid to rest with the judgment that was delivered by the Senior Resident Magistrate’s court at Keroka on 16th December, 2005, that was produced as plaintiffs’ exhibit 5(a). Due to the foregoing, I am satisfied on the material before me

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that the suit property was purchased by the plaintiffs and not by the 4th defendant. It should be noted that the 4th defendant did not file any defence to this suit and that the 1st, 2nd and 3rd defendants did not lay any claim to the suit property in their statement of defence. They merely denied the plaintiff’s claim. They did not give evidence at the trial of this suit in support of their defence. The evidence of PW1, PW2 and PW3 on the purchase of the suit property was therefore not controverted. Section 107 of the Evidence Act, Cap 80 laws of Kenya provides that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts has the burden of proving the existence of those facts. I am satisfied that the plaintiffs have discharged this burden.

Issue No.II- Whether the registration of the suit property in the name of the 4th defendant was fraudulent;

The plaintiffs’ advocates submitted that the 4th defendant neither

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purchased the suit property nor paid the purchase price. The 1st and 2nd defendants who caused the suit property to be registered in the name of the 4th defendant admitted that when the suit property was purchased they were church elders at Keumbu church and that the purchase price was contributed by the members of the Plaintiffs’ Keumbu church. The move by 1st and 2nd defendants to register the suit property that had been purchased by plaintiffs in the name of the 4th defendant on the allegation that the plaintiffs’ name had been changed to Redeemed Gospel Church to me was nothing but an act of fraud. I do not see how the plaintiffs who had been in existence since pre-independence days could change their name to Redeemed Gospel Church which was already existing as a church as of the date of the purported change of name. What is even more intriguing is the fact that the purported change of name was effected pursuant to a resolution passed by the members of the plaintiffs’ Keumbu

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Church. I am satisfied that the plaintiffs have proved the particulars of fraud pleaded against the defendants who tendered no evidence in court in their defence.

Issue No.III – Whether or not the plaintiffs are entitled to the reliefs sought in the plaint;

I have set out at the begging of this judgment the reliefs sought by the plaintiffs. The plaintiffs have proved that they purchased the suit property and that the same should have been registered in their name instead of the name of the 4th defendant. The plaintiffs have also proved that the suit property was registered in the name of the 4th defendant fraudulently. In the circumstances, the plaintiffs are entitled to a declaration that the plaintiffs are the lawful owners of the suit property. The plaintiffs are also entitled to an order for the rectification of the register of the suit property by the cancellation of the name of the 4th defendant therefrom. This

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court has power under section 143 of the Registered land Act, Cap. 300 Laws of Kenya (now repealed), and section 80 of the Land Registration Act, 2011 to rectify the register of land if it is satisfied that any registration was obtained or made by fraud or mistake. As I have stated above, I am satisfied that the 4th defendant was registered as the proprietor of the suit property fraudulently. The plaintiffs who should have been registered as the proprietors of the suit property are therefore entitled to an order for the rectification of the register of the suit property by the cancellation of the name of the 4th defendant as the proprietor of the suit property.

The proprietorship of the suit property shall revert to Hanah Muhonja Onsembe (deceased). The plaintiffs will have to arrange with the legal representatives of the estate of Hana Muhonja Onsembe to transfer the suit property to the plaintiffs. I have agonized a great deal whether I should order

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the 4th defendant to transfer the suit property directly to the plaintiffs. This issue has caused me a lot of difficulty because from the evidence on record, Hana Muhonja Onsembe is deceased and as such it may take the plaintiffs a couple of years before they can have the suit property registered in their name. It would have been more expedient in the circumstances to transfer the suit property directly to the plaintiffs from the 4th defendant who is holding the same unlawfully. I have decided against taking this route because I think that it would be against the law to do so. Before the suit property could be transferred by Hana Muhonja Onsembe to the plaintiffs, she was under an obligation to obtain consent of the Land Control Board. After that, she was to execute an instrument of transfer of the suit property in favour of the plaintiffs against which the plaintiffs had to pay registration fees and Stamp duty before the suit property could be

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registered in the name of the plaintiffs. These are well established legal procedures in conveyance of real property which this court cannot sacrifice or ignore for the sake of expediency. The plaintiffs will have to go through this normal process to obtain title to the suit property which I have already declared to belong to them. The suit property was acquired fraudulently from Hana Muhonja Onsembe and must revert to her name for it to be legally transferred to the Plaintiffs. This court will put the parties back to the position in which they were prior to the fraudulent transfer of the suit property to the 4th defendant. Due to the foregoing, the plaintiff is not entitled to the order sought that its name be inserted in the register of the suit property or that the suit property be transferred to it by the defendant.

Having held that the plaintiffs are the owners of the suit property having purchased the same from Hana Muhonja

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Onsembe the plaintiffs are entitled to the injunction sought against the defendants to restrain them from entering into and/or in any manner whatsoever interfering with the suit property and the plaintiffs occupation thereof. I will also award the plaintiffs the cost of this suit.

Conclusion:

In conclusion, I enter judgment for the plaintiffs against the 2nd, 3rd and 4th defendants as follows;

I declare that the registration of L.R. No.Nyaribari chache/Keumbu/2141 (“the suit property”) in the name of the Redeemed Gospel church was fraudulent and as such null and void;

I declare that the plaintiffs are the lawful owners of the suit property;

The register for the suit property shall be rectified by the cancellation of the name of Redeemed Gospel church, P.O. BOX 178, KISII and the insertion therein of the name of the previous owner HANA MUHONJA ONSEMBE as the proprietor thereof;

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The suit property shall be transferred to the plaintiffs by the legal representatives of estate of HANA MUHONJA ONSEMBE;

The 2nd, 3rd and 4th defendant’s are restrained by themselves or through their agents, servants and/or employees from entering onto or in any manner whatsoever interfering with the suit property or the plaintiffs’ occupation thereof;

The costs of this suit shall be paid to the plaintiffs by the 2nd and 3rd defendants.

Dated, signed and delivered at Kisii this 27th day of September, 2013.

S. OKONG’O,

JUDGE.

In the presence of:-

Mr. Ochwangi holding brief for Mrs. Asati for the plaintiff

No appearance for the 1st, 2nd and 3rd defendants

No appearance for 4th defendant

Mobisa Court Clerk

S. OKONG’O,

JUDGE.

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