[2024] KEELC 6449 (KLR)

Rop & another v Khaoya & 3 others (Environment & Land Case 46 of 2011) [2024] KEELC 6449 (KLR) (23 September 2024) (Judgment)

Neutral citation: [2024] KEELC 6449 (KLR)

Republic of Kenya

In the Environment and Land Court at Kitale

Environment & Land Case 46 of 2011

FO Nyagaka, J

September 23, 2024

Between

Samwel Kiptoo Rop

1st Plaintiff

moses Kibiwott Limo

2nd Plaintiff

and

Beatrice Nakhumicha Khaoya

1st Defendant

Patrick Kooko Kalenda

2nd Defendant

District Land Registrar Trans-Nzoia District

3rd Defendant

Henry Mutambo Wepukhulu

4th Defendant

Judgment

1. Through an Amended Plaint dated 12/03/2019, the Plaintiffs seek the following reliefs hereinbelow reproduced verbatim:a.That the Plaintiffs claim against the 1st and 2nd Defendants jointly and severally is for a declarations (sic) that the said suit land belongs to the Estate of the late David Kiplimo Busienei, eviction and permanent injunction orders do issue against the said 1st and 2nd Defendants and that the 1st and 2nd Defendants to surrender the Certificate of Lease issued to them on the 28th February, 1997 to this Honorable Court for cancellation and this Honorable Court to order the 3rd Defendant the Trans Nzoia District Land Registrar issue new Certificate of Lease/Title Deed of the said land in the name of DAVID KIPLIMO BUSIENEI (deceased) and/or in the joint names of the Plaintiffs who will hold the same in trust for all the beneficiaries of the late and 4th Defendant is the (sic) sold a portion of his land to the late father to the plaintiffs in 1993 being 3 acres Koitogos Provisional No. 150B original number 309. b.Interest in the usual court rates;c.Costs of the suit;d.Any other suitable relief the Honorable Court may deem fit to grant.

2. The 1st Defendant denied the Plaintiffs’ claim by filing her Statement of Defence dated 18/05/2011. She prayed that the suit be dismissed with costs. The 2nd Defendant equally denied the plaintiffs’ suit in his defence dated 26/05/2011. He urged this court to dismiss the same with costs. According to the 3rd Defendant’s Statement of Defence dated 22/02/2018, the suit property was transferred in the joint names of the 1st and 2nd Defendants on 28/02/1997. Denying allegations of fraud, the 3rd Defendant maintained that the Register was an accurate representation of the facts on the ground. Urging that the suit disclosed no reasonable cause of action, it prayed that the suit be dismissed with costs. The 4th Defendant filed his Statement of Defence dated 26/03/2019. He denied the averments set out in the plaint praying that the suit be dismissed in totality with costs.

The Plaintiffs’ Case 3. PW1, Samuel Kiptoo Rop, adopted his witness statement dated 28/04/2011 and testified that he filed this suit on behalf of his deceased father, namely, David Kiplimo Busienei who died in 2010. He produced the Grant of Letters of Administration issued in Kitale High Court P&A No. 57 of 2011, dated 24/03/2011. He marked it as P. Exhibit 1.

4. The Plaintiffs claimed ownership of all that parcel of land namely Kitale Municipality Block 15 (Koitogos) 355 measuring 0. 745Ha. It is currently registered in the names of the 1st and 2nd Defendants as per the Green Card marked P. Exhibit 2. According to PW1, the suit property became his deceased father’s property following a quid pro quo agreement with one Kiprotich Zakayo Bargoiyet who received a one-acre plot in Moi’s Bridge from the deceased. He produced the Agreement, dated 05/06/1992, and marked it as P. Exhibit 3.

5. PW1, contended that following the Agreement, both parties took possession of the respective parcels of land but did not occupy it. In fact, the deceased did not develop the said parcel of land. Subsequently, the deceased’s name was entered into a list of members comprising 355 persons compiled by the Secretary, one Michael Cheboskwony.

6. Later on, PW1 discovered that the property had been fraudulently obtained by the 1st and 2nd Defendants. According to PW1, the 1st and 2nd Defendants, without the consent of the Plaintiffs, caused the parcel of land to be transferred into themselves jointly by abusing their authority. In particular, the Plaintiff accused the 1st Defendant, who was in charge of the Kitale District Lands Office as the then District Land Registrar, of using her position in office to gain ownership to the property by way of corrupt means.

7. He also recalled that an affidavit was prepared by the 4th Defendant corroborating the contention that the property was rightfully exchanged and placed in the deceased’s hands. PW1 produced an Agreement between the 4th Defendant and the deceased dated 08/04/1993 and marked it as P. Exhibit 5. According to the agreement, the 4th Defendant sold three (3) acres of his plot No. (309) 150B Koitogos Farm to the deceased for a consideration sum of Kshs. 250,000. 00.

8. PW1 also produced the Affidavit of the 4th Defendant sworn on 07/03/2011, and marked it as P. Exhibit 6. The Affidavit reiterated the contents of the sale agreement adding that he had never owned a title deed, namely, Kitale Municipality Block 15 (Koitogos) 355. That he was fully paid the purchase price. Adding that he did not transfer the parcel to the 1st Defendant, he expressed willingness to attend court and give evidence to shed light on the dispute.

9. PW1 retained the services of Arap Mitei & Company Advocates to secure the property. The firm wrote a letter of demand dated 04/03/2011, produced as P. Exhibit 7, urging the Defendants to surrender the title to the deceased’s estate.

10. PW1 confirmed that no Land Control Board Consent had been obtained. As such, any consent purported to have been obtained in favor of the deceased was a forgery. Further, that his father never sold the parcel of land to the 4th Defendant and any document purporting to suggest otherwise was fake. Be that as it may, he was not present during the proceedings of the Land Control Board. He added that during the deceased’s lifetime, he lodged a complaint against the 1st Defendant before the Chief and was advised to file suit. PW1 dismissed the contents of the Minutes of the Saboti Land Control Board of 09/09/1993 and the agenda as untrue. He added since there was a dispute was lodged in Eldoret, the deceased could not take possession of the suit land.

11. PW2, Moses Kibiwott Limo, the 1st plaintiff’s brother similarly adopted his witness statement dated 28/04/2011 as his evidence in chief. His stated that he was PW1’s co-administrator to the estate of the deceased. His evidence was a mirror reflection of the evidence of that of PW1 save that he sought to clarify that they only discovered that the suit land had been fraudulently acquired in 2008 after the dispute concerning plot No. 90 had been concluded in 2007. He added that plot No. 1041 was sold by his father to this uncle Erastus Seroney who sold the said parcel of land to Esther Chebet. The sale to his uncle did not take place in 1998. He was emphatic that the suit property was never sold to the Defendants contrary to what they were alleging. PW2 continued that the 4th Defendant was sued for unprocedurally transferring the suit land to the 1st and 2nd Defendants. He clarified further that plot No. 309 was not and did not relate to plot No. 355. That plot No. 309 belonged to Esther Chebet.

12. PW3, Jonathan Kipchumba, testified that the deceased became a member of Koitogos Farm after obtaining the suit land from Kiprotich Zakayo Bargoiyet who died in 1992. His evidence was that he was aware that the deceased complained that the property had been grabbed and registered in the name of other individuals. He stated that he was aware of this information as he was a good friend to the deceased. He continued that he learnt of the dispute sometime in 1992 but the deceased did not file any suit. PW3 explained that he met the deceased when he carried out his business operations over the deceased’s premises as a tenant. The same was on plot No. 90. Later on, the tenants had been notified to vacate the suit land as it had been handed over to a new owner.

13. PW4, Jeremiah Kiprono Ng’etich, the Area Representative of Koitogos Farm, area B, testified that at all material times to this suit the Farm of which the suit land was comprised of approximately 5000 acres. After collecting the list of names compiled in an area list, they collected survey fees to commence the survey process. The list included inter alia, the name of the deceased to obtain plot No. 355. He recalled that the list was submitted to the land’s office. He produced the Area List that was marked as P. Exhibit 4. The area list bore no signatures of any officials or directors. He pointed out that the list was not complete hence the absence of the signatures. He stated that the 4th Defendant’s name was not included in the list but understood that the property was subsequently sold to him. He continued that it was his first time to testify as to the facts of this case. He was emphatic that the land initially belonged to Lands Limited.

14. PW5, Jeremiah Samba, Advocate of the High Court of Kenya testified that he drafted the Agreement dated 05/06/1992 that was entered between Kiprotich Zakayo Bargoiyet and David Kiplimo Busienei. He then attested to the signatures and stamped the agreement with his official stamp. While stating that there was no copy of an area list, he confirmed that the plot number was not indicated on the first part but was included in clause A. He stated that he was not informed of any dispute in 1992.

The 4th Defendant’s Case 15. DW1, the 4th Defendant, adopted his witness statement dated 26/03/2019 as his evidence in chief. A former government official, his evidence was that in 1993, he bought three (3) acres excised from all that parcel of land namely Kitale Municipality Block 15 (Koitogos)/309 from one Esther Chebet. Following successful purchase, he was given interim number 150B Koitogos Farm later on registered as Kitale Municipality Block 15 (Koitogos)/1041.

16. Come 08/04/1993, DW1 entered into a sale agreement with the deceased where he disposed of the entire parcel of land to him. He sold the land out of fear of tribal clashes that had ensued. Led to P. Exhibit 5, he confirmed that indeed that was his signature in the said sale agreement. That the deceased paid the full sum of Kshs. 250,000. 00. He added that since Esther Chebet was in possession of the title deed, DW1 referred the deceased to the said Esther Chebet to allow for processing of the title deed in his favor. DW1 later on got wind of the fact that the deceased sold the parcel of land to his brother in law, Erastus Seroney in 1997.

17. According to a Letter dated 21/01/2009 produced as 4D.Exhibit 3, coming from the Land Registrar, DW1 was summoned to Lands office to explain how he acquired the property. DW1’s evidence was that he honored the summons but the 1st Defendant failed to attend. Instead, she sent her mother to safeguard her interests. Due to her absence, the Registrar asked parties to go to the chief’s office. Similarly, the 1st Defendant did not appear.

18. Later on 17/06/2009, the Registrar wrote a Letter, produced as 4D.Exhibit 4, to the Chief requesting for the status of ownership of the suit land. He was called to shed light on the matter where he recorded a statement. DW1 thereafter deposed an Affidavit sworn on 07/03/2011 marked D.Exhibit 2 which rehashed the evidence he adduced before this court.

19. Explaining his interactions with the 1st Defendant, DW1 testified that he knew her as an officer from the education office. She informed him that she was the senior clerk at the Lands office. Occasionally, the office would borrow vehicles from their offices for official duties. On one occasion, the 1st Defendant promised to give him ten (10) acres of land. In this regard, DW1 gave her his ID. She then gave him a number of blank papers to sign thereafter. He maintained that he never sold any land to the 1st Defendant and only sold to the deceased.

20. When shown 1D.Exhibit 4 and 2D.Exhibit 2, DW1 denied knowledge of them. He denied ever owning plot No. 335 mentioned therein. He also denied being a participant in the meeting before the Land Control Board held on 04/02/1991. He maintained that as per the Green Card in respect to the suit property, it was false to the extent that he obtained title as indicated.

21. DW1 continued that he bought land in Zea; 1D.Exhibit 4 and 1D.Exhibit 6 bore his signature; he did not sell two (2) acres of plot No. 355 to the 1st Defendant as his plot No. was 150 ‘B’ where he lived with his family; he denied the contents of the Minutes of 05/02/1997; he went silent on the question of Esther Chebet’s number; that the agreement spoke to plot No. 309 in which his deceased wife had the agreement; he did not pursue a consent from the Land Control Board when he sold the land to the deceased; he could not confirm whether Esther Chebet took the deceased to the Land Control Board; he was never coerced to exchange land; he denied exchanging three (3) acres for two (2) acres; he denied the contents of Minute No. 138; although the 1st Defendant defrauded her, he never reported the matter to the police but informed the Chief; the Chief knew the residents when looking at the Chief’s letter dated 18/05/2011 and it was his first time to see it when testifying; court observed that he was hesitant to state that he had not sold any other land; he denied selling land to the 2nd Defendant who also appeared before the Chief; and he sold land at Weyoria Scheme for Kshs.38,000. 00 in 1981/1982;

The 1st Defendant’s Case 22. The 1st Defendant, Beatrice Nakhumicha Khaoya, testified that she worked at the Ministry of Lands at Kitale from 18/11/2006 to 2007 when her services where terminated. She had previously worked as a Secretary to the Land Control Board from 1985 to 1996. Between 1997 and 2006, she became a Land Registrar.

23. She testified that she knew the deceased who was her neighbor, the 2nd Defendant, her ex-husband and co-owner of the parcel of land, and the 4th Defendant whom she met through the 2nd Defendant in 1995. She explained that she had begun living with the 2nd Defendant in 1995 and had intended to live together as husband and wife. However, that did not materialize.

24. Confirming that he was the proprietor of LR No. Kitale Municipality Block 15/Koitogos/355 measuring approximately 0. 7745 Ha, the 1st Defendant approached the 4th Defendant expressing interest in purchasing the suit land. She relied on the title deed issued on 15/03/1995 which revealed that the 4th Defendant was its proprietor. In fact, she conducted a search and established that indeed he was the registered owner. She dismissed the 4th Defendant’s allegations that he gave her his ID as falsehoods.

25. On further due diligence, her evidence was that the 2nd Defendant is the one who established the position of the land on the ground. When checking the area list of Kibomet, DW2 saw that the 4th Defendant was not captured as the original owner. He however clarified that he bought three (3) acres of an adjacent parcel of land from Esther Chebet in December, 1991. Thereafter in 1993, the 4th Defendant exchanged the three (3) acres with his neighbor, the deceased, who had acquired two (2) acres in 1993. That the 4th Defendant paid for one (1) acre.

26. The above transaction was corroborated by the meeting of the Saboti/Kwanza Land Control Board held on 09/09/1993. Agenda 138 in Minute No. DLB 507/93 for LR No. 1839 plot No. 150, read: “transfer on exchange basis of three (3) acres by Henry to David.” As per minute No. 139 in DLB/508/93 LR 1839 plot 150, it read: “transfer on exchange basis of 0. 8 Ha by David to Henry 0. 8 Ha.” (approximately two (2) acres).

27. This followed an application for consent from the Land Control Board as done and executed by the 4th Defendant dated 11/01/1997. The Application, dated 05/02/1997, listed the 1st and 2nd Defendants as purchasers for the transfer of 0. 809 Ha (approximately two (2) acres) from plot No. 355.

28. She added that there were Minutes for that meeting captured at Minute No. DLB/509/93 for LR No. 1839 plot No. 150. The transfer was on the exchange basis of three (3) acres from Henry Mutambo to David Busienei that was approved in the presence of both parties.

29. DW2 continued that the meeting of the Saboti/Kwanza Land Control Board occurred on 04/12/1991. According to Minute No. 58 - DLB/162 & 91 produced as 1D.Exhibit 8, confirmed by the Chairman, the meeting concerned the transfer of three (3) acres to the 4th Respondent by Esther Chebet at a consideration of Kshs. 146,000. 00. She opined that the use of the plot No. 150 ‘B’ was used interchangeably to refer to plot No. 150. She stated that the use of the word ‘B’ signified a temporary number.

30. DW2 questioned the authenticity of the transaction captured at P. Exhibit 5. According to her, since there was no evidence of payment of the balance of the sale agreement, then it could not have been said that the transaction was successful. She pitted out that when the deceased failed to pay the balance, the 4th Defendant exchanged the properties since he was in receipt of Kshs. 100,000. 00.

31. According to the Sale Agreement dated 20/12/1996 produced as 1D.Exhibit 10, the 4th Defendant sold L.R. No. Kitale Municipality Block 15/Koitogos/355 to the 1st Defendant for a sum of Kshs. 310,000. 00. It was this property that was captured in the letter of consent dated 17/10/1993. She stated that she paid the consideration sum as follows: Kshs. 268,000. 00 on 20/12/1996, Kshs. 10,000. 00 on 11/01/1997 and Kshs. 8,000. 00 on 20/01/1997 leaving a balance of Kshs. 24,000. 00. She adduced an acknowledgement of payment of the whole purchase price dated 28/01/1997. It was attested to by her father Joseph Wafula Khaoya and the 4th Defendant’s brother-in-law Bernard Makanda signed.

32. On the agenda dated 05/02/1997, the same read at No. 97 “Min DLB/97/97 - Transfer of 0. 809 Ha from Henry to Patrick for Kshs. 310,000. 00”. The remarks are: “approved both parties present”. According to the letter from the chief dated 18/05/2011, the 4th Defendant sold his land and moved to Bikeke. Regarding the Minutes of the Land Control Board that took place on 05/02/1997, Minute No. 97/97 captured plot No. Kitale Municipality Block 15/Koitogos/335. She clarified that it was a typing error because she purchased plot No. 355. Be that as it may, the letter of consent referred to plot No. 355.

33. She stated that due to the successful transaction, a title deed was issued in the names of the 1st and 2nd Defendants. The said information is also captured in the green card. They remain the registered proprietors of the suit land to date. She stated that the deceased never complained of their occupation of the suit land. The dispute only arose when the deceased’s son wanted to sell the said parcel of land since she was not in occupation at that time. In fact, the deceased used to visit the 1st Defendant with his wife before he died. She thus urged this court to dismiss the suit with costs.

34. DW2 denied giving the 4th Defendant documents to execute; the Minutes of the Land Control Board of the meeting held on 04/12/1991 show that under entry No. 58, Esther Chebet filed an application to transfer three (3) acres of L.R. No. 5553/3 to the 4th Defendant. She was given plot No. 309, which, when transferred to the 4th Defendant, was plot No. 1041; there is no relationship between plot No. 355 and plot No. 309; Esther Chebet has never owned plot No. 355; although the 1st and 2nd Defendant purchased the plot together, the 2nd Defendant’s name did not appear in the agreement; that the Area List showed that plot No. 355 belongs to the deceased; she accused the 4th Defendant of spiraling falsities in his testimony in totality since he willingly sold the plot to herself together with the 2nd Defendant; she was summoned before the area chief concerning complaints by the deceased; she instead asked her mother to represent her as she was not within the area; she could not tell if the 2nd and 4th Defendants had a separate sale agreement; although she paid the stamp duty, she did not adduce the receipt; there is in existence Criminal Case No. 4234 of 97; Republic vs. P. Kalenda; she saw the land before purchase; and she never came across any agreement the 4th Defendant entered with the deceased.

35. The 1st Defendant also called DW6, Dominic Eduko Mudek, a County Land Administrator Trans Nzoia County. He explained the process of the Land Control Board for issuance of a consent. That before one applies for a Land Control Board Consent, one must first go to the District Officer’s (D. O’s) office and obtain an Application Form. After filling the form and paying the requisite fee, the form is submitted to the clerk in the Land Administration office. Upon receiving the forms, he books them for the next hearing of Board that sits monthly.

36. Upon receipt of the applications, they are recorded in a Land Control Board Register for each of the Boards. Each Board has its own Register. Each application is then assigned an entry number. Thereafter, an agenda is prepared by the clerk or land administrator. On the day of the Board hearings, the Board sits and deliberates on the agenda and minutes are recorded. In the minutes, each of the plot numbers are recorded. Information as to transfer, charge or subdivisions is also captured together with the names of the parties.

37. He continued that he had in his possession sets of Minutes of the Boards that sat previously. He produced Minutes of the meeting of the Saboti/Kwanza Land Control Board held on 04/12/1991 paying attention to Minute No. DLB/162/91 for Kibomet LR No. 5553/3 marked as 1D.Exhibit 2. The Consent, dated 4/12/1991, was given to Esther Chebet to transfer to the 4th Defendant three (3) acres for a sum of Kshs. 146,000. 00.

38. He also relied on the minute of the meeting of the Saboti/Kwanza Land Control Board held on 09/09/1993 paying attention to Minute No. DLB/509/93 for LR No. 1839 plot No. 150. The transfer from the deceased to the 4th Defendant was approved in the presence of both parties. It was a transfer on exchange basis of three (3) acres by Henry Mutambo Wepukhulu to David Busienei. Both parties were present and the transaction was approved. The Minutes were produced and marked as 1D.Exhibit 3.

39. He further explained that in the normal conduct of practice, agendas are not usually signed. The consent is generated from the agenda. He relied on the minutes displaying the agenda as his evidence.

40. DW6 also presented the Register in relation to LCR application No. 467 of 1991; application for consent of the Land Control Board dated 11/01/1997 for transfer of Kitale Municipality Block 15/Koitogos/355 measuring 0. 809 Ha by Henry Mutambo Wepukhulu to Patrick Kalenda and Beatrice Khaoya. The Register was marked 1DExh.4. He also produced the agenda for 09/09/1993 produced as 1D.Exhibit 5 for Saboti/Kwanza Land Control Board. According to Minute DLB/507/93 for LR 1839 plot No. 150, a transfer on exchange basis of three (3) acres by Henry Mutambo Wepukhulu to David Busienei was approved.

41. Under the same minutes, Minute No. DLB/508/93 for LR No. 1839 plot No. 150, a transfer on exchange basis of 0. 8 Ha by David Busienei to Henry Mutambo Wepukhulu was approved.

42. DW6 also produced the agenda and minutes of the meeting held on 05/02/1997 produced as 1D.Exhibit 6 at the Saboti/Kwanza Land Control Board. At entry No. 97, Minute No. DLB 97/97 for Kitale Municipality Block 15/Koitogos/335, the transfer by Henry Mutambo to Patrick Kalenda and Beatrice Khaoya in consideration of the sum of Kshs. 310,000. 00 was approved in the presence of all the parties concerned. There was a typing error which indicated as 467/97 and not 97/97 as well as the plot No. 335 which ought to have been plot No. 355.

43. DW6 added that regarding entry No. 58 Esther Chebet was the registered owner land parcel No. LR No. 5553/3; the parcel numbers on the green card did not tally with the entry in Minute No. 58; the acreage exchange between the deceased and the 4th Defendant were three (3) and two (2) acres; he was not aware that the 2nd Defendant testified that he was outside the county yet the Minutes were approved in his presence; a transaction was capable of taking place in his absence; he was not represented by a proxy; the deceased was not a registered proprietor in spite of the fact that he had to be present and apply for consent from the Land Control Board; though the Minutes of the meeting held on 04/12/1991 were not signed, the document was authenticated; the 1st Defendant at some point served as a secretary to the Land Control Board; the absence of one of a purchaser does not invalidate the sitting of a meeting to approve a consent as the present purchaser can ably represent the absent one; he was not in a position to tell whether LR No. 1839 is a distinct parcel from plot No. 150; when the two entries 138 and 139 are compared, the parcel numbers are the same. These are LR No. 1839 and plot No. 150; if 0. 7745Ha is rounded off, it is 0. 8Ha; in the minutes of 04/12/1991, the secretary was the 1st Defendant; he could not tell the acreage of the transaction between Esther Chebet and the 4th Defendant; one can only apply as proprietor; transaction No. DLB/507/93 referred to LR No. 1839 plot No. 150; and on entry No. 139, the parcels referred to are the same but are different.

The 3rd Defendant’s Case 44. The 3rd Defendant called one, Nelson Otieno Odhiambo, the Land Registrar Trans Nzoia Lands Office since 18/08/2018 to the stand. His duties include issuing title deeds, determination of boundary disputes, caution hearings and registration of documents. He also clarified that he was the custodian of all Trans Nzoia County Land records.

45. He appeared in court with parcel file for plot No. 355. He confirmed that the registration is absolute. The parcel of land is in Kitale Municipality Block 15/ Koitogos ranging from plots No. 338-361. It was originally in the name of David K. Arap Busienei according to the Area List marked as 3D.Exhibit 1.

46. Although the same ought to have been registered in his name, the land was transferred from David Arap Busienei (deceased) to Henry Mutambo Wepukhulu (4th Defendant). He relied on the Land Control Board Consent dated 17/10/1993 for plot No. 355 marked as 3D.Exhibit 2. The board approved the transfer of two (2) acres of plot No. 355 from the deceased to the 4th Defendant at an estimated consideration value of Kshs. 40,000. 00 at its meeting held on 09/09/1993.

47. DW3 produced the Green Card produced as 3D.Exhibit 3 in respect to Kitale Municipality Block 15/Koitogos/355. It was opened on 05/10/1993 in the name of the Government of Kenya on 05/10/1993. At entry No. two (2), the property was registered in the name of the 4th Defendant on 15/03/1995 in pursuance of the letter of consent marked as 3D.Exhbit 2. A title deed as was issued as captured in entry No. 3. At entry No.4, the property was registered in the joint names of the 1st and 2nd Defendant on 28/02/1997. The original title deed produced as 3D.Exhibit 4 issued to the 4th Respondent was surrendered during this registration. A title deed was issued in favor of the 1st and 2nd Defendants as captured in entry No. 5 on 28/02/1997. According to entry No. 6 dated 04/04/2011, a caution was registered in favour of Samuel Kiptoo Rop as having a beneficial interest. He was emphatic that to his knowledge and records, the property was never registered in the name of the deceased.

48. DW3 confirmed that he did not create the Area List and played no role in the issuance of the Land Control Board consent. He observed that proper procedure was followed in registration of the 1st and 2nd Defendants as proprietors. He added that he could not trace the letter to chief Naisambu written by the Registrar at the material time.

49. He clarified that he did not keep minutes of the Land Control Board. He added that he did not have the letter of consent dated 05/02/1997 to the 1st Defendant as it could not be traced; that he did not keep a copy of title deed after issuance; that he had never seen the letter listed as No. three (3) on the list; that he had never seen Mr. Kavee; he denied any wrongdoing or fraud on the part of the 3rd Defendant and prayed that the suit be dismissed.

50. He added that on looking at the application for consent No. 467 of 1997, the same morphed into the consent issued by the Land Control Board; the Area List was prepared by members and submitted by its officials; the 4th Defendant was not on the Area List; he had never seen the letter dated 26/02/2009; the fact that the deceased was not issued with the title deed was procedural as he transferred the property to the 4th Defendant; the minutes captured minute No. 139 DLD 508/93 in respect to LR No. 1839 for plot No. 150 on transfer on exchange basis by the deceased to the 4th respondent was procedural; he had not seen any agreement between the deceased and the 4th Respondent; names are crossed out on the green card when the property is transferred to another purchaser; property can be transferred before subdivision; and Esther Chebet was a stranger to the Area List.

51. On LR No. 5553/3, DW3 could not establish a connection between that property and the suit land; that Esther Chebet was right to apply for transfer and it is possible to conclude that she was acting on behalf of the deceased; that an agreement for sale was not a completion document that is submitted for registration; no complaints were raised regarding the veracity of the Area List; “Block” 15 Koitogos exists in their records; and as at 09/09/1993, parcel No. 355 did not exist.

The 2nd Defendant’s Case 52. DW4, the 2nd Defendant Patrick Ooko Kalenda, a retired civil servant, and former husband of the 1st Defendant confirmed that they did not know the deceased until they were summoned by the Land Registrar. He relied on his witness statement dated 25/05/2011 which reiterated the testimony of the 1st Defendant. He added that the due process was followed. He described the parcel of land as having a semi-permanent three (3) roomed house, a lavatory, a kitchen and a borehole where the 4th Defendant lived with his wife before he sold it to the 1st and 2nd Defendants.

53. Maintaining that he is a part owner of the suit land, he produced the Title Deed marked as 4D.Exhibit 1 and the Green Card marked as 4D.Exhibit 2. He relied on the Minutes and agenda from the Land Control Board showing that the 4th Defendant exchanged three (3) acres for the two (2) acres he was selling to the deceased.

54. He also made reference to Minute No. DLB/509/93 for plot No. 150 wherein a consent was given to Esther Chebet to transfer three (3) acres to the 4th Defendant. That according to the agenda for 09/09/1993, the deceased and the 4th Defendant were exchanging later who sold to the 2nd Defendant. A consent dated 17/10/1993 was issued transferring two (2) acres from the deceased to the 4th Defendant as per minute No. DLB 508/93. He produced the Agreement dated 20/12/1996 as 4D.Exhibit 7 and the acknowledgement dated 28/01/1997 produced as 4D.Exhibit 8.

55. He also stated that they applied for consent vide an Application dated 11/01/1997 produced as 4D.Exhibit 9 and a Transfer was executed dated 30/01/1997. The application sought to transfer Kitale Municipality Block 15/Koitogos/355 measuring 0. 809 Ha from the 4th Defendant to the 1st and 2nd Defendants jointly. The consent, making reference to the application dated 11/01/1997, was issued on 05/02/1997. A title deed was issued.

56. Later on, Land Registrar Mr. Kaveli summoned DW4 vide a letter dated 26/02/2009 to give evidence. He was summoned together with the deceased, the 1st and 4th Defendants. The 1st Defendant was represented by her mother. The chief wrote a letter dated 18/05/2011 confirming that he was the true owner. He maintained that proper procedure was adhered to in obtaining the title.

57. He added that the deceased was not on the land when it was sold to them by the 4th Defendant who had obtained title; the deceased never sued him for recovery of the suit land when he was alive; the 4th Defendant was lying; he paid Kshs. 200,000. 00 as part of the consideration sum and the balance was paid by the 1st Defendant though his witness statement stated that he paid Kshs. 310,000. 00; his name did not feature in the agreement dated 20/12/1996; the deceased’s signature was not in the relevant consent letter; the plot number in the consent and the minutes were different; the green card did not describe the 1st and 2nd Defendants as joint owners; he visited the land before purchase; the 4th Defendant was living in the structure erected thereon with his family; the agreement was burned and thus could not produce it; a criminal case, namely Criminal Case No. 4234 of 1997 arose out of a complaint from the 1st Defendant on arson but was acquitted; he left the property in 2009; the house caught flames; there was a dispute between himself and the deceased that was heard by the chief and the Land Registrar; though no power of attorney existed, his wife acted for him in the sale agreement; he did not execute the application for consent; there is no entry of the deceased on the green card; no caution, charge or restriction was registered against their acquisition then; the property is free from encumbrances;

58. DW4 made reference to the agreement of 20/12/1996 as not contradicting the first one. He was outside the country for two (2) months when the agreement was done. The chief confirmed in writing that he is the owner. The meeting before the Registrar did not lead to the issuance of any directions.

59. The 2nd Defendant also called DW5, Joseph Kimaiyo Tobom, the retired chief from Naisambu to the stand. His evidence was that the deceased held the suit that was used by his relative. Thereafter, the 4th Defendant occupied land measuring two (2) acres. Later on, the 2nd Defendant purchased land from him in 1995/1996. He added that he had never resolved any dispute by the deceased. He however confirmed that the 4th Defendant complained that the 1st and 2nd Defendants owed him a balance of Kshs. 42,000. 00. He summoned the parties and resolved the dispute.

60. He confirmed that he is the author of the letter dated 18/05/2011 marked as 2D.Exhibit 4. The letter confirmed that the 4th Defendant sold his land in 1995 to the 2nd Defendant who resided on the farm in that year together with his wife, the 1st Defendant. Thereafter, no complaints were raised either by the 4th Defendant or the deceased. He later on learned that the 2nd Defendant’s ownership was disputed. He recalled that the deceased exchanged land with the 4th Defendant during his lifetime; which land parcels are far away from each other.

61. He continued that Esther Chebet sold land to the 4th Defendant; no one raised any objections as to his letter of 18/05/2011; and he could not speak to the Area List. That closed the Defendants’ cases.

Written Submissions 62. At the close of hearing, parties were directed to file and exchange their respective written submissions. This court has considered those elaborate submissions filed by the parties’ respective Counsel and thanks them for their industry. The plaintiffs filed their joint written submissions dated 06/02/2023 on 08/02/2023. They urged this court to allow the suit as prayed in their amended plaint. The 1st Defendant filed her written submissions dated 23/03/2023 on 27/03/2023. Interestingly, she prayed that the suit be dismissed with costs to herself and the 2nd Defendant. The 2nd Defendant filed his written submissions dated 04/07/2023 on 28/09/2023. He urged this court to dismiss the suit with costs. The 3rd Defendant filed its written submissions dated 27/09/2022 on that day. It urged this court to dismiss the suit with costs. Finally, the 4th Defendant filed his written submissions dated 28/02/2023 on that day. He urged this court to declare that he had no title in parcel number namely Kitale Municipality Block 15 (Koitogos)/355 to pass to the 1st and 2nd Defendants; that the doctrine of innocent purchaser for value without notice did not arise in the circumstances of this case; and that he be granted costs.

Analysis and Disposition 63. Before delving on the issues, I wish to rehash and remind parties that I will not tire to restate the law insofar as submissions are concerned; submissions will never take the place of pleadings. Submissions are in their context marketing language that cannot introduce prayers while persuading the court why those orders cited ought to be granted. The Court of Appeal decision in the case of Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.”

64. In this case, the 4th Defendant sought several prayers in his submissions, that I will not regurgitate. This conduct is highly discouraged. This court has never and will not begin to consider prayers in submissions. For those reasons, those prayers cited and sought therein shall be disregarded and are hereby rejected.

65. Having addressed the primary issue, I shall now proceed to consider the issues arising from the facts of this case. I have extensively considered the pleadings, examined the evidence and analyzed the submissions together with the law. The plaintiff seeks a declaration that they are the lawful proprietors of all that parcel of land namely Kitale Municipality Block 15 (Koitogos)/355. In pursuit of that claim, the following issues fall for determination:

(a) Whether the suit was time barred by dint of Section 7 of the Limitation of Actions Act? 66. It is argued that the suit is time barred by dint of Section 7 of the Limitation of Actions Act. This is because the Plaintiffs filed suit in 2011 when the property was registered in favor of the 1st and 2nd Defendants on 28/02/1997. If arithmetically calculated, then it means that extrapolating from the argument, the plaintiffs could only file suit by the year 2009.

67. Section 7 of that Act provides as follows:“An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.”

68. It is however noted that in seeking reliefs from this court, the Plaintiffs have urged this court to inter alia “…order the 3rd Defendant the Trans Nzoia District Land Registrar issue new Certificate of Lease/Title Deed of the said land in the name of David Kiplimo Busienei (deceased) and/or in the joint names of the Plaintiffs who will hold the same in trust for all the beneficiaries of the late…” In seeking this relief, the Plaintiffs contended that the 1st and 2nd Defendants acquired the suit land by means of fraud.

69. In light of the above, I find guidance in the import of Section 20 (1) (a) of the said Act which provides as follows:“None of the periods of limitation prescribed by this Act apply to an action by a beneficiary under a trust, which is an action in respect of a fraud or fraudulent breach of trust to which the trustee was a party or privy.”

70. In any case, Section 26 of the Limitation of Actions Act provides as follows:“Where, in the case of an action for which a period of limitation is prescribed, either:(a)the action is based upon the fraud of the Defendant or his agent, or of any person through whom he claims or his agent; or(b)the right of action is concealed by the fraud of any such person as aforesaid; or(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.”

71. The Plaintiffs state that they discovered that the property had been subsequently and fraudulently obtained. PW2 claimed that the aspect of fraud was discovered in 2008. Purely based on those allegations, and without going into the merits of the dispute, I find that they had properly filed the present suit.

72. Withal, I find that the suit herein is not statute barred since the Plaintiffs claims ownership in trust for the beneficiaries of the deceased’s estate. The merits or otherwise of those allegations shall be demystified in the forthcoming paragraphs. The suit is against the Defendants out of which the Plaintiffs accuse them of fraudulently transferring the same to the 1st and 2nd Defendants. That argument fails and is dismissed.

(b) Whether the Plaintiffs’ pleadings complied with Order 2, Rule 10 of the Civil Procedure Rules? 73. It is also put forward that the Plaintiffs’ amended plaint dated 12/03/2019 failed to comply with the dictates of Order 2, Rule 10 of the Civil Procedure Rules. According to the 1st and 2nd Defendants the Plaint did not contain sufficient and necessary particulars of the claim and the same was not proved.

74. I have looked at the provisions against the Plaintiffs’ plaint. I find that the Plaintiffs pleaded that the property was fraudulently transferred to the 1st and 2nd Defendants. The Plaintiffs seek recover of that suit land on the premise of the Defendants’ actions. In my view, that suffices as necessary particulars since the cause of action is apparent from the paragraphs enunciated in the plaint. Accordingly, I find no merit in that argument which is also dismissed.

(c) Whether the property was fraudulently transferred in favor of the 1st and 2nd Defendants? 75. The crux of the dispute centers around claims of allegation of fraud. According to the Plaintiffs, their deceased father neither intended nor transferred the suit property to the 1st and 2nd Defendants. Consequently, it was obtained by means of fraud.

76. It is not denied that the suit property namely Kitale Municipality Block 15 (Koitogos) 355 measuring 0. 745Ha is registered in the names of the 1st and 2nd Defendant jointly. This is demonstrated in the Green Card produced and marked P. Exhibit 2, 3D.Exhibit 3 and 4D.Exhibit 2.

77. The Plaintiffs, however, plead that the said property was fraudulently obtained. Section 26 of the Land Registration Act provides that the certificate of title issued upon registration shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, and the title of that proprietor shall not be subject to challenge, except on the ground of fraud or misrepresentation to which the person is proved to be a party or where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

78. The Plaintiffs and the 4th Defendant appeared to be on the same side of the divide. The evidence supporting the Plaintiffs’ case was that the deceased David Kiplimo Busienei, who died in 2010 entered into a sale agreement dated 05/06/1992, P. Exhibit 3, with Kiprotich Zakayo Bargoiyet. The parties essentially agreed to swap properties. Instructively, no plot numbers were indicated thereon.

79. Upon acquisition of the property, PW1 testified that the deceased did not take occupation of the same. PW2 testified that in 2008, it was discovered that the property had been fraudulently obtained by the 1st and 2nd Defendants. Contrary to the date of discovery, PW3’s evidence was that the issues of fraud arose in 1992 upon the deceased’s discovery. They accused the 1st Defendant of using her position in office to illegally obtain title.

80. According to the 4th Defendant, the property was rightfully placed in the deceased’s hands and anyone claiming the contrary was a fraudster. That the deceased and 4th Defendant subsequently entered into an agreement dated 08/04/1993, P. Exhibit 5.

81. Under its terms, the 4th Defendant sold three (3) acres of plot No. (309) 150B Koitogos Farm to the deceased at an agreed price of Kshs. 250,000. 00. This evidence was also captured in the 4th Defendant’s affidavit sworn on 07/03/2011, P. Exhibit 6, and D.Exhibit 2. It was the 4th Defendant’s evidence that though he was proprietor of the suit land, he was not issued with a title deed. Furthermore, the deceased paid the full purchase price.

82. PW2 added that the 1st Defendant purchased property number 309 and thus had no legal right to claim for the suit land. They claimed that the aspect of fraud was discovered in 1992 but no evidence was adduced other than PW3, an alleged closed confidant of the deceased person. In any event, how was it possible that if PW3’s evidence was anything to go by, the fraud was discovered even before the property was transferred from the 4th Defendant to the deceased? The deceased evidently had no right to claim fraud over a property that was not his as at 1992.

83. If we were to give the Plaintiffs the benefit of doubt, what would be the make of the fraudulent claims since two of its witnesses contradicted themselves? Was it 1992 or 2008? If it was 1992, why didn’t the deceased take any steps to safeguard his interests? I am not convinced that the Plaintiffs were truthful about the facts.

84. Speaking to the purchase price, I have noted with grave concern that none of the parties, that is the Plaintiffs and the 4th Defendant, bothered to adduced evidence of payment or some sought of acknowledgement. Claims of land rights are emotive in their nature. When laying credence as to ownership, this court is of the view that it is incumbent that a party must be exceptionally diligent to cover all tracks and conclusively convince the court that indeed the property belongs to them. They should leave no room for speculation. In this case unfortunately, where parties only allege by word of mouth, I find that the probative value of that evidence is beret of weightiness.

85. The 4th Defendant testified that he purchased three (3) acres of Kitale Municipality Block 15 (Koitogos)/309 from one Esther Chebet. Following successful purchase, he was given interim number 150B Koitogos Farm later on registered as Kitale Municipality Block 15 (Koitogos)/1041.

86. He added that on 08/04/1993, he indeed entered into an agreement with the deceased where this property was disposed of in favor of the deceased. Since Esther Chebet was in possession of the title deed he connected the deceased to Esther Chebet for processing of the title deed. It then came to his attention that the property was sold to the deceased’s brother in law, Erastus Seroney in 1997. All the while, the 4th Defendant denied selling the property to the 1st Defendant.

87. Once again, the evidence of the Plaintiffs and the 4th Defendant was inconsistent. The Plaintiffs were emphatic that the deceased never sold the parcel of land. However, the 4th Defendant claimed that the said property was sold to the deceased’s brother in law. PW2 on his part testified that plot No. 1041 was sold by his father to this uncle Erastus Seroney who sold the said parcel of land to Esther Chebet. It is such absence of corroboration that instigates an element of doubt in the witness’s account.

88. Turning to the evidence of the 1st and 2nd Defendants, who as explained are estranged partners, it was testified that the suit property was purchased from the 4th Defendant. She confirmed that a title deed was issued to the 4th Defendant on 15/03/1995 as revealed from the green card.

89. The 1st Defendant explained that it was the 4th Defendant who informed her that he purchased three (3) acres of L.R. No. 5553/3 from Esther Chebet in December 1991.

90. A meeting of the Saboti/Kwanza Land Control Board held on 04/12/1991 as evidenced in 1D.Exhibit 8 and 1D.Exhibit 2, minute No. 58 - DLB/162/91 for Kibomet LR No. 5553/3 concerned the transfer of three (3) acres to the 4th Respondent by Esther Chebet, the proprietor, at a consideration of Kshs. 146,000. 00. Subsequently, a consent, dated 4/12/1991, was issued in respect of the fact that Esther Chebet was to transfer to the 4th Defendant three (3) acres for a sum of Kshs. 146,000. 00.

91. Thereafter in 1993, the 4th Defendant exchanged those three (3) acres with his neighbor, the deceased, who had two (2) acres in 1993. That the 4th Defendant paid for one (1) acre. It was for this reason that the deceased’s name that appeared in the area list as its proprietor.

92. Following this transaction, the Saboti/Kwanza Land Control Board held a meeting on 09/09/1993. In its agenda, shown in 1D.Exhibit 5 at No. 138, Minute No. DLB 507/93 for LR No. 1839 plot No. 150, it was captured as follows: “transfer on exchange basis of three (3) acres by Henry to David.”

93. As per the Minutes, 1D.Exhibit 3, in Minute No. 139 in DLB/508/93 LR 1839 plot 150, it was captured: “transfer on exchange basis of 0. 8 Ha by David to Henry 0. 8 Ha.” (approximately two (2) acres). The minutes of meeting captured at minute No. DLB/509/93 for LR No. 1839 plot No. 150 affirmed that it was a transfer on exchange basis of three (3) acres from Henry Mutambo to David Busienei that was approved in the presence of both parties.

94. According to the Land Control Board consent dated 17/10/1993 for plot No. 355 marked as 3D.Exhibit 2, the board approved the transfer of two (2) acres of plot No. 355 from the deceased to the 4th Defendant at an estimated consideration value of Kshs. 40,000. 00 at its meeting held on 09/09/1993.

95. By sale agreement dated 20/12/1996 produced as 1D.Exhibit 10, the 4th Defendant sold L.R. No. Kitale Municipality Block 15/Koitogos/355 to the 1st Defendant for a sum of Kshs. 310,000. 00. This evidence was corroborated with the chief’s letter dated 18/05/2011 confirming that the 4th Defendant sold his land and moved to Bikeke. The chief confirmed those assertions in his testimony as DW5.

96. The 1st Defendant adduced evidence of payment of the said sum as follows: Kshs. 268,000. 00 on 20/12/1996, Kshs. 10,000. 00 on 11/01/1997 and Kshs. 8,000. 00 on 20/01/1997 leaving a balance of Kshs. 24,000. 00. She relied on an acknowledgement note dated 28/01/1997 capturing these facts marked as 4D.Exhibit 8.

97. Subsequently, an application for consent, No. 467 of 1991, from the Land Control Board, executed by the 4th Defendant, dated 11/01/1997 was presented to the said board. It was for the transfer of Kitale Municipality Block 15/Koitogos/355 measuring 0. 809Ha by Henry Mutambo Wepukhulu to Patrick Kalenda and Beatrice Khaoya. The 4th Defendant did confirm that the signature belonged to him. The application, listed the 1st and 2nd Defendants as purchasers for the transfer of 0. 809Ha (approximately two (2) acres) from plot No. 355. This Register was marked as 1DExh.4.

98. A meeting of the board was held in reference to this transaction. On the agenda dated 05/02/1997, at No. 97 “Min DLB/97/97 - Transfer of 0. 809Ha from Henry to Patrick for Kshs. 310,000. 00”. The Minutes, 1D.Exhibit 6, remarked: “approved both parties present” for plot No. Kitale Municipality Block 15/Koitogos/335. DW6 explained that there were two typing errors in respect to this particular document: the application number indicated 467/97 and not 97/97 as well as the plot No. 335 instead of plot No. 355.

99. It was following this process that the title deed was issued in favor of the 1st and 2nd Defendants. The 1st Defendant maintained that during the deceased’s lifetime, he did not lay claim of ownership. In fact, the deceased was her regular visitor and they lived as harmonious neighbors.

100. The above evidence was corroborated by DW6, the County Land Administrator Trans Nzoia County and DW3 the 3rd Defendant’s witness, the Land Registrar Trans Nzoia County.

101. From the evidence on the green card, the suit property was opened on 05/10/1993 in the name of the Government of Kenya on 05/10/1993. At entry No. two (2), the property was registered in the name of the 4th Defendant on 15/03/1995 in pursuance of the letter of consent marked as 3D.Exhibit 2. A title deed as was issued as captured in entry No. 3.

102. At entry No.4, the property was registered in the joint names of the 1st and 2nd Defendant on 28/02/1997. The original title deed, 3D.Exhibit 4, issued to the 4th respondent was surrendered during this registration. A title deed was issued in favor of the 1st and 2nd Defendants as captured in entry No. 5 on 28/02/1997.

103. This court prefers the evidence of the 1st, 2nd and 3rd Defendants for the following reasons: Firstly, the evidence is corroborated by the witnesses regardless of the fact that they were all acting on their own behalves. There is a trail of evidence that flows from one action to the next. Secondly, the evidence is so watertight that it leaves no room for alternative interpretation. Furthermore, the witnesses were deliberate as to telling the truth and explained any of the discrepancies that arose during the course of the transactions.

104. Had the deceased person indeed felt aggrieved that the property had been taken away from him illegally, he had several options to safeguard his interest. Regardless of the fact that the property was opened in 05/10/1993, we do not see any preservation of interest by the deceased, particularly during his lifetime. The only caution that is registered in the property is to be found in entry No. 6 dated 04/04/2011, in favour of Samuel Kiptoo Rop as having a beneficial interest. It is only on his death that his estate purported to claim ownership as it has done in the pleadings herein.

105. The property was never registered in the name of the deceased person. In my view and in fact could not be registered in his name because he, on his own volition, surrendered the property to the 4th Defendant as follows: the 4th Defendant purchased three (3) acres of L.R. No. 5553/3 from Esther Chebet in December 1991. A consent was duly issued in respect to this transaction. In 1993, the 4th Defendant exchanged those three (3) acres with his neighbor, the deceased, who had two (2) acres. It was also approved by the Land Control Board. This is how the 4th Defendant acquired the suit land.

106. Although the Plaintiffs attempted to persuade this court, when cross examining the Defendant witnesses that the 2nd Defendant was not present when the consent was issued, no evidence was adduced by themselves to countermand that contention. It was apparent that the 2nd Defendant was present when the consent was approved.

107. It was also established that though the deceased was not issued with a title deed, the process of acquisition was lawful and procedural from handing over the property to the 4th Defendant to its final acquisition to the 1st and 2nd Defendants.

108. Regarding the dispute before the chief, DW5 testified that at one point, the 4th Defendant complained that the 1st and 2nd Defendants owed him a balance of Kshs. 42,000. 00. He summoned the parties and resolved the dispute.

109. The 1st, 2nd and 4th Defendants as well as the Plaintiffs also recall a dispute that occurred in 2009. The Land Registrar Mr. Kaveli summoned DW4 vide a letter dated 26/02/2009 to give evidence. He was summoned together with the deceased, the 1st and 4th Defendants. The 1st Defendant was represented by her mother. However, that meeting did not yield any outcome. One wonders if indeed the deceased was aggrieved by the question as to ownership, assuming that was the dispute before the Land Registrar, why didn’t he pursue the claim in the manner pursued by his estate, let alone register a caution over the parcel of land?

110. The 4th Defendant attempted to explain away the circumstances that could have led up to the fraudulent obtainment of the suit property by the 1st Defendant. He accused her of using her position in office to manipulate the system and acquire property. He added that on one occasion, the 1st Defendant promised to give him ten (10) acres of land. In this regard, DW1 gave her his ID. She then gave him a number of blank papers to sign thereafter. Those allegations cannot stand in my view as they are unsubstantiated. No evidence was adduced in support of those assertions. In any event, he affirmed that though the 1st Defendant defrauded her, he never reported the matter to the police. I also find that the 4th Defendant was not candid. During his testimony, he was hesitant to state that he had not sold any other land.

111. Flowing from the above facts, it could not be pragmatic or rational to have the deceased’s name as the owner of the suit land. Furthermore, the evidence of DW6 sequentially demonstrated the process of issuance of a consent from the Land Control Board which I find was duly followed to the letter. In the circumstances, I am satisfied to hold that the property was lawfully and rightfully transferred to the favor of the 1st and 2nd Defendants and there were no elements of fraudulent activities.

(d) Whether the Area List conclusively established that the deceased was the proprietor of the suit land? 112. It is not denied that the deceased’s name was entered into the Area List comprising 355 persons. This Area List, produced as P. Exhibit 4, was compiled by the secretary, one Michael Cheboskwony. PW4 testified that after collecting the list of names compiled, they collected survey fees to commence the survey process. The list included inter alia, the name of the deceased destined to obtain plot No. 355. It was submitted to the land’s office. Critically, no complaints were raised regarding the veracity of the Area List.

113. The purpose of the Area List was to establish that the deceased had placed a reservation for ownership over a parcel of land in the area before demarcation. It did not conclusively give the deceased the exclusive legal and proprietary rights unless he had complied with the set requirements. Nonetheless, I find that the deceased surrendered the property to the 4th Defendant in exchange for the 4th Defendant’s property. It was at this point that he acquiesced any rights that had accrued. The estate of the deceased could not therefore claim purely and primarily based on this list.

(e) Who is the rightful and legal proprietor of all that parcel of land namely Kitale Municipality Block 15 (Koitogos)/355? 114. I have already found that the 1st and 2nd Defendants procedurally obtained title to the suit land, although the 2nd Defendant’s name did not appear in the sale agreement, the same appeared in the application for consent and the consent issued in his favor together with his wife at that time. I find that the issuance of the title complied with the dictates of the law and I see no reason to interfere with the ownership embedded therein. I therefore find that the 1st and 2nd Defendants are the rightful and legal proprietors of all that parcel of land namely Kitale Municipality Block 15 (Koitogos)/355. I find that by dint of Section 26 of the Land Registration Act, they are the absolute, rightful and legal proprietors of the suit land. I therefore find that the title deed issued by the 3rd Defendant was proper and regular.

(f) Whether the Plaintiffs have proved their case on a balance of probabilities? 115. The Plaintiffs have not demonstrated that their deceased father was the proprietor of all that parcel of land namely Kitale Municipality Block 15 (Koitogos)/355. They have therefore failed to prove that on a balance of probabilities, they are entitled to the reliefs sought. The suit must consequently fail. The upshot of the above is that the Plaintiffs’ suit lacks merit. It is hereby dismissed with costs to the 1st, 2nd and 3rd Defendants.

116. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT KITALE VIA TEAMS PLATFORM ON THE 23RD DAY OF SEPTEMBER, 2024. HON. DR. IUR FRED NYAGAKAJUDGE, ELC KITALEIn presence of :Gemenet……………………………………… for the PlaintiffKeya for Ingosi………………… for 1st DefendantSambu…………………………………………… for 4th DefendantKeya for Wanyonyi…………… for 2nd DefendantOdongo………………………………………… for 3rd Defendant.