[2018] KEELC 3157 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA

ELC CASE NO. 4 OF 2018

SAMSON K. AMUSIBWA ........................................ PLAINTIFF

VERSUS

ALPHONSE M. AMBAHI )

ROBERT MULOGOSI ) .................................... DEFENDANTS

THE DISTRICT LAND REGISTRAR )

JUDGEMENT

At all material times relevant to this suit the 1stdefendant was the registered owner of L.R. No. Kakamega/Shiru/818. On or about 3rd June, 1996 the plaintiff entered into an agreement with the 1st defendant to purchase 0. 5 of an acre.The Land Control Board of Tiriki West gave its consent to transfer the land on 21st July, 1997. The plaintiff took possession of the said land and has been cultivating it while awaiting for the surveyor to draw the mutation to enable him effect the transfer.On or about 22nd November, 2000 the 1st defendant unlawfully and fraudulently transferred the said land to the 2nd defendant and the 3rd defendant fraudulently, wrongfully, unlawfully and without any reasonable excuse registered the 2nd defendant as the sole proprietor of Land Reference No. Kakamega/Shiru/818 without regard to the plaintiff’s share of 0. 5 acre. It is the plaintiff’s claim that the said registration is illegal and fraudulent and negligent in that it includes the plaintiff’s land.

The plaintiff’s claim against the defendants jointly and severally is for the cancellation of the register to enable the plaintiff be registered as proprietor of 0. 5 acre of L.R. No. Kakamega/Shiru/818. Despite demand and notice of intention to sue having been given the defendants have refused, failed and/or neglected to settle the plaintiff’s claim. The plaintiff states other than miscellaneous Application No. 73 of 2001 at Vihiga Senior Resident Magistrate’s Court which was struck out there is no other suit pending between him and the defendants and that there has been no previous suit pending between him and the defendants and that there has been no previous proceedings between him and the defendants in respect of the subject matter herein.The plaintiff prays for judgment against the defendants jointly and severally for:-

(a) A declaration that the title held by the 2nd defendant is illegal and should be cancelled and the 1st defendant be ordered to transfer 0. 5 acre to the plaintiff.

(b) That the land register be rectified and title No. L.R. Kakamega/Shiru/818 be subdivided into two so as the plaintiff to hold his 0. 5 acre and the balance to the 1st defendant.

(c) Any further orders that the court deems fit.

(d) Costs of this suit.

The plaintiff submitted that the 2nd defendant fraudulently transferred the whole parcel of land into his name with assistance of the 1stDefendant when they had knowledge that the Plaintiff was legally entitled to have a share out of the said land particularly measuring O.5 acres which he bought from the original owner, ALPHONCE MUSOTSI AMBALI (deceased).

The Plaintiff in his testimony avers that he purchased a portion of land on 3/6/96 measuring 0. 5 acres from the 1st Defendant and produced an agreement as Exhibit PEx1. ThePlaintiff took possession of the purchased portion.The plaintiff produced consent dated 10th September, 1997 and application for consent dated 21st July, 1997 as PEx2 indicating the 1st defendant in his defence denies generally the plaintiff’s allegations.The Plaintiff avers that there is a clear boundary on the ground demarcating his portion of land which he occupies and utilizes without the interruption of the 2nd defendant. The 2nd defendant also has his distinct portion. The 3rdDefendant who is the District Land Registrar is enjoined in this suit for reasons that he irregularly registered the whole parcel of landKakamega/Shiru/818 into the 2nddefendant’s names without due regard to the Plaintiff’s interest.

PW2, Jonathan Basiye testified and confirmed that he knew the Plaintiff and the 1st Defendant herein and that he was present as the village elder when the Plaintiff bought the land from the 1st Defendant. He also confirmed from his testimony that he is the one who demarcated the land to show the portion bought by the Plaintiff.

The 1st defendant, ALPHONCE MUSOTSI AMBALI died during the pendency of this suit and was substituted by NOEL NYARANGA AYUYA, Noel Nyaranga Ayuya, DWl testified and confirmed that the 2nd Defendant purchased only 1 acre from Alphonce Musotsi Ambali and Samson Khasiani Amusibwa bought ½ Acre and each ofthem occupy their respective portions on this suit land. In her testimony, she further told thecourt in cross-examination that her father-in-law Alphonce Musotsi Ambali never transferred the whole land to Mulogosi but had only sold 1 acre to him. She also confirmed that two people occupy the land. Mulogosi uses his parcel and Samson uses his.

The defendant Alphonce Musotsi Ambali confirms from his pleadings Defendant's in paragraph 3 that he was misdirected by the 2nd defendant in signing transfer documents while believing that he was only transferring one acre of land to the 2nd defendant. The 1st defendant substitute one NOEL NYALANGA confirms this from her testimony that the 2nd defendant had only purchased 1 acre and not the whole land and that both the plaintiff and the defendant occupy their respective portions on the ground.

That in answer to paragraph 9 of the plaint, the 1st defendant was misdirected by the 2nd defendant into signing documents while he believed that he was transferring to the 2nd defendant the portion he had bought and not the whole land as it later turned to be. The plaintiff is entitled to his 0. 5 acres of land reference No. Kakamega/Shiru.818. In answer to paragraph 10 of the plaint the 1st defendant did not have any intention to defraud the plaintiff at all.

As a result of the aforesaid matters the 2nd defendant avers that he is entitled to a peaceful occupation of the aforesaid parcel of land instead of the plaintiff.The defendant avers that the suit instituted herein is bad in law and does not disclose any reasonable cause of action and the defendant will raise a preliminary objection thereto.WHEREFORE the 2nd defendant prays that the suit herein be dismissed with costs.

The 2nd defendant testified that he does not know the plaintiff herein Samson Khasian Amusibwa. He knew one Alphonse Musutsi Ambali who is now deceased and was substituted by Noel Nyaranga Ayuya herein. That on or about the year 1980 he was looking for a land to buy and through hisfather one John 1. Mulogosi informed him that Alphonse Musotsi Ambali had a land and wanted to dispose off and or sale. That he went to the home of Alphonse Musotsi Ambali with his father John I. Mulogosi. That Alphonse Musotsi Ambali (now deceased) informed them that he had no wife norchild and wanted to sell his land parcel known as KAKAMEGA/SHIRU/818 at a consideration of Kshs. 125,000/=.That they entered into agreement on 16th day of March 1988 and he paid Alphonse Musotsi Kshs, 82. 000/= as first installment.-The balance owing remained Kshs. 43. 000/=.The agreement was witnessed by John Matayo, Jeremiah Mugotiza Kisanyanya, Village elder one Jonathan Masiya and Caroli Patrick. The remaining balance of Kshs. 43,000/= he did paid to Alphonse Musotsi by installment until payment was made in full on the 9thday of August 1999. That later in the year 2000 the said Aphonse Musotsi transferred to him the suit landand executed every document. That they filed the transfer application for consent and consent obtained from the land control board at lands office Vihiga and later he was issued with a title deed which he holds the same to date.That he took possession of the land immediately and started utilizing the same. Currently he is not using the land due to the court case.That he prays the court to dismiss the plaintiff suit with costs and allow him proceed using his land which he legally purchased from Alphonse Musotsi and he holds title deed to the same without hinderance from the plaintiff herein.

The 2nd defendant is the registered proprietor and title holder of land parcel known as KAKAMEGA/SHIRU /818 measuring about 0. 37 Hectares which the plaintiff seeks to cancelthrough these proceedings.

His case is that he had bought a portion of the land measuring 0. 5 acres from the original owner defendant Alphonce Mutsotso Ambali on 3rd June 1996. He went to the land control board after paying the consideration of Kshs. 7000/= to the buyer on 21stJuly 1997 that was after one year. He never followed on the said consent to subdivide and transfer the portion to himself. In the year 2000 he found out the land had been sold to the 2nd defendant who had title to the same after being served with notice to vacate by the lawyers to the 2nddefendant.

His substantive prayers in the plaint are that the court declares the title held by the 2nd defendant illegal and cancels it.The 1stdefendant be ordered to transfer 0. 5 acres to him and retains the balance. He gave evidence and produced his documents in support.

In his defence, the 2nddefendant explained that he bought the suit land from the 1stdefendant through his father DWl as an agent and got title after going through the process. DW 1 supported him and also the daughter to the 1stdefendant Noel Nyaranga Ayuya and the land registrar DW 3 Kalori Okwaro.

The 2nd defendant submitted that, the suit is null and void for non service of the statutory notice to the 3rd defendant the District Land Registrar who is and was a government Officer by then and by virtue of the section 13 of the Government Proceedings Act which was and still is mandatory that one serves notice to the Attorney General before filing a suit against a government officer. The plaintiff claimed in cross examination that he did serve the notice but never produced such notice in evidence to support his claim.

The plaintiff hangs on a copy of sale agreement he claims to have signed with the defendant and an application form for land control board consent and the consent. These, he produced as Exh. P 1,2 and 3. A scrutiny of the documents reveals that-The agreement was for Kshs. 7000/= as consideration yet only Kshs. 6000/= was indicated in the agreement as having been paid and no evidence of the payment of Kshs. 1000/= being the balance.The application for the land control board consent did not state the interest to be 0. 5 acre by purchase but transfer by way of undivided shares.Both the application for the land control board consent and the consent itself indicated that the transaction was not a sale but a transfer by way of gift. In factthe consent discloses fraudulently designs as it refers to the whole parcel TIRIKI/SHIRU/818 being transferred for no consideration paid. These documents could not validly effect the transfer of any proprietory interest to the plaintiff. That could explain why he never perhaps transferred the property from the date of consent on the 10th September 1997 until when it was sold and transferred to the 2nddefendant Robert Mulogosi on the 22nd November 2000.

The consent of the land control board which the plaintiff hangs on to defeat the title to the 2nd defendant was applied for on 21stJuly 1997 and issued on 10. 9.1997. Besides the consent being suspect (as the plaintiffs case is that he bought only 0. 5 acres and not the whole portion as purported in the said consent) the same was obtained beyond the statutory period of three months after the transaction of the alleged sale on 3. 6.1996 which was in violation of section 6(2)(a) of the Land Control Act Cap 302 Laws of Kenya and to that extend null and void for the purpose. See KARURI -VS- GITURU(1981) KLR 247 -259

The 2nd defendant has demonstrated to the court that he bought the land from the owner at Kshs. 125,000/= which he paid in full. The figure is even reflected in the title deed. The plaintiff had never filed anything on the register to stop the 2nd defendant or any other person from buying or the Land registrar from registeringthe transaction. In fact the person who had lodged a caution on August 1998 was Jackson Okeyo Ogaye who withdraw it on 23rd March 2000 long before the 2nddefendant bought it.

The plaintiff’s lawyer went to the pain of demanding the 2nd defendant to testify in person to put across the claim that the sale agreement the 1st and 2nd defendant drew was defective. The plaintiff’s lawyer could not question an agreement to which his client was never party. The 1stdefendant and his legal representative had no issue with the agreement. In any case the 1stdefendant never laid any allegations offraud against the 2nd defendant.

The plaintiffs case is that he bought the land in March 1996 and only secured the land control board consent one and half years on 9th October 1997. There is no evidence that he even attempted to register it to transfer the land to his name todate. And he wants the court to assist him get the whole land to the 1st defendant with whom he wants to share to the exclusion of the 2nd defendant. He projects to belitigating on behalf of the 1st defendant without any legal authority. The plaintiff wants the court to believe he is resident on the land pursuant to the said sale agreement yet it is clear that he has hanged on the application dated 29th September 2003 to occupy the whole land and lock out the 2nd defendant. The order is on the court file.

The 3rd defendant submitted that, the Land Registration Act Section 26 gives the person named as proprietor of land absolute and indefeasible ownership the remedy which the plaintiff seeks in this case can only be available to him if he can prove that the title was issued on;

a) The ground of faced or misrepresentation to which the person is proved to be aparty or

b) Where the certificate of title has been acquired illegally unprocedurally or through a corrupt scheme.

No evidence has been presented by the Plaintiff or the other two Defendants to show that the 3rd Defendant was in any way involved in a fraudulent scheme.

The Evidence Act is clear in Chapter IV that whoever alleges must prove specifically Section 109 states.

“The burden of proof as to any particular fact lies on the person who wished the courtto believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person”

The 3rd Defendant is enjoined in this suit for the alleged reason that he registered the title in favour of the 2nd Defendant without due regard to the Plaintiffs interest. It is their humble submission that the registration of the title was done procedurally. No evidence of fraud has been presented against the 3rdDefendant. It’s the 3rd Defendants submission that from the evidence tendered the plaintiff has not proved his case against the 3rd Defendant on a balance of probabilities as required by law. They pray that this court dismisses the suit against the 3rd Defendant with costs.

This court has carefully considered both the plaintiff’s and the defendants’ evidence and submissions herein. The Plaintiff filed this suit vide a Plaint dated 7thApril 2003 praying for orders that the title deed for Parcel No KAKAMEGA/SHlRU/818 held by the 2nd Defendant be cancelled or rectified and he be given a portion measuring 0. 5 Acres.The suit came up for hearing on diverse dates where the Plaintiff and Defendants testified. The plaintiff alleges that theDefendants in collusion transferred theparcel of land known as KAKAMEGA/SHlRU/818 to the 2nd Defendant. The 3rdDefendant who is the Land Registrar was sued for irregularly registering the said parcel of land to the 2nd Defendant without considering the Plaintiff’s interests in the property. The Plaintiff testified and produced a sale agreement a consent dated 10th September, 1997 and an application for consent dated 21stJuly 2017PEx 1&2).

The 1stand 2nd Defendant filed their statements of defence and their written statements in court.In his pleadings the 1stDefendant alleges to have been misdirected to sign transfer documents by the 2nd Defendant.The 2nd Defendant on the other hand says that after he paid the full purchase price they(1st and 2nd Defendant) filed the transfer application for consent. The consent was obtained and later a title was issued by the 3rd Defendant DEx 1,2&3).The 3rdDefendant alleges in paragraphs 5 and 6 of his defence states that if he effected the transfer then the same was done with due regard to the law. The Plaintiffs allegations that the Defendants fraudulently issued a title to the 2nd Defendant therefore misguided.

The Land Registration Act is very clear on issues of ownership of land and Section 24(a) of the Land Registration Act provides as follows:

“Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

Section 26 (1) of the Land Registration Act states as follows:

“The Certificate of Title issued by the Registrar 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 –

a. On the ground of fraud or misrepresentation to which the person is proved to be a party; or

b. Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

The law is clear that, the Certificate of Title issued by the Registrar 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.

This court in considering this matter referred to the case of Elijah Makeri Nyangw’ra –vs- Stephen Mungai Njuguna& Another (2013) eKLRwhere the court held that the title in the hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. Hon Justice Munyao Sila in the case while considering the application of section 26(1) (a) and (b) of the Land Registration Act rendered himself as follows:-

--------------the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme.

This court noted that, the 1stdefendant filed his defence dated 11thJune, 2004 and in paragraph 3 of the defence avers as follows:-

‘'That in answer to paragraph 9 of the Plaint, the 1st Defendant was misdirected by the 2nd defendant into signing documents while he believed that he was transferring to the 2nd defendant the portion he had bought and not the whole land as it later turned to be. The Plaintiff is entitled to his 0. 5 acres of land reference No. KAKAMEGA/SHIRU/818”.

It is clear from the evidence on record taking into account the testimonies of the parties and their witnesses and taking into account of the documentary evidence adduced, the plaintiff has proved his case on a balance of probabilities and the court should grant the reliefs sought as prayed in the plaint.The plaintiff’s sale agreement is dated way back 3rd June 1996 while the 2nd defendant’s title was issued on 22nd November 2000. The Plaintiff in his testimony avers that he purchased a portion of land on 3/6/96 measuring O.5 acres from the 1st Defendant and produced an agreement as Exhibit PEx1. The Plaintiff took possession of the purchased portion. The plaintiff produced consent dated 10th September, 1997 and application for consent dated 21st July, 1997 as PEx2. The 1st defendant admitted that he did not intend to transfer the entire parcel to the 2nd defendant. Indeed the 2nd defendant should have pursued the seller for compensation if he was under the impression that he was buying the whole parcel of land. He confirmed that the Plaintiff is entitled to his 0. 5 acres of land reference No. KAKAMEGA/SHIRU/818. I find that there was misrepresentation in the transfer of this title and the 2nd defendant was a party.

No evidence has been presented by the Plaintiff or the other two Defendants to show that the 3rd Defendant was in any way involved in a fraudulent scheme and the case against him is dismissed. I therefore grant the following orders;

1. A declaration that the title held by the 2nd defendant is illegal and should be cancelled and the 1st defendant be ordered to transfer 0. 5 acre to the plaintiff.

2. That the land register be rectified and title No. L.R. Kakamega/Shiru/818 be subdivided into two so as the plaintiff to hold his 0. 5 acre and the balance to the 1st defendant.

3. Costs of this suit to the plaintiff.

It is so ordered.

DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 23RD DAY OF MAY 2018.

N.A. MATHEKA

JUDGE