[2018] KEELC 2055 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MIGORI

ELC CASE NO. 594 OF 2017

(Formely Kisii ELCC No. 469 OF 2015)

SILPA ANYANGO OJUNJU.........................PLAINTIFF

-versus-

JOHN AKECH OPUCH.......................1ST DEFENDANT

CHARLES ONDIEK OPUCH............2ND DEFENDANT

GEORGE ANYUMBA OPUCH.........3RD DEFENDANT

ABUOR OPUCH..................................4TH DEFENDANT

JUDGMENT

1. By a plaint filed on 21st October, 2015,the plaintiff, SILPA ONYANGO OJUNJU through G.S. Okoth and Co. Advocates sued that 1st to 4th defendants, JOHN AKECH OPUCH CHARLES ONDIEK OPUCH, GEORGE ANYUMBA OPUCH and ABUOR OPUCH, for the following reliefs;-

i. Special damages of Kshs. 3,000/= as above.

ii. An order of declaration that the defendants hold Land P. No. Kochia/Korayo/694 in trust for the plaintiff and therefore a rectification and subsequent transfer of the said land should be done so that the plaintiff be registered as the owner of the land parcel No. Kochia/Korayo/694.

iii. General damages for fraud, trespass and fraudulently misrepresentation.

iv. Cost of this suit together with interest @ 14% p.a from the date of filling suit until payment in full.

v. Interest on (a) and (c) at the rate of 12% p.a from the date of filling suit and date of judgment respectively until payment in full.

vi. Such further or other alternative relief as this Honourable court deems fit to grant.

2. The plaintiff’s claim is that she has lived on the suit property; land parcel No. KOCHIA /KORAYO/694 for over 40 years. The suit property was registered in the name of her late husband, JAMES OJUNJU OYUGI (deceased 1) who died on 15th December, 2002 before it was fraudulently acquired by Joseph Opuch Ondiek (deceased 2) who was the father of 1st to 4th defendants. In the year 2012, the defendants unlawfully trespassed into the suit property, evicted the plaintiff from her home there on and started to cultivate the property. The plaintiff has pleaded particulars of fraud, trespass and special damages in the plaint. She was deprived of her equitable rights and interest on the suit property. It provoked the instant suit.

3. The defendant were duly served on 11th February 2016 as revealed in affidavit of service sworn on 11th April, 2016 by Tom O. Obingo, a licensed process server. They failed to enter appearance and file any statement of defence. On 1st March 2018, hearing proceeded exparte and the plaintiff (PW1) and her witness namely GERALD PHILIP LUSI ONDIEK (PW2) adduced evidence including PExhibits 1 to 6 in support of the plaintiff’s case.

4. Learned counsel for the plaintiff filed submissions dated 23rd April, 2018 whereby he referred to the orders sought in the plaint, the facts, pleadings evidence, the applicable law and damages for fraud, trespass and false misrepresentation. He relied on Section 80 of the Land Registration Act, 2012, Halsbury’s Laws of England 3rd Edition Volume 38 page 744, Salmond on the Law of Torts 16th Edition by Sweet & Maxwell page 28, Sospeter NYaga Mwathu (Suing on his capacity as the legal representative of Mori Nganga) –v- Lucy Muthoni Kibocha (2018) eKLR, Beatrice Mbuvi –v- Rispa N. Oduwo & 3 Others (2017) e KLR and Nakuru Industries Ltd –v- S.S. Mehta & Sons (2016) e KLR.

5. I have considered with great care the plaint, evidence of PW1, & PW2 as well as the submissions including authorities cited by the plaintiff’s counsel. I bear in mind the holding in Great Lakes Transport Co. Ltd- vs- Kenya Revenue Authority (2009) KLR 720 that issues for determination in a suit either flow from the pleadings or as framed by the parties. Learned counsel for the plaintiff submitted on applicable law and damages in respect of fraud, rectification of register of the suit property, trespass and fraudulent misrepresentation. Nonetheless the issues for determination are in terms of initial registration of the suit property, legal representative(s) of James Ojunju Oyugi (deceased 1) and Joseh Opuch Ondiek (deceased 2) fraudulent acquisition of the suit property and any trust created thereon, trespass into the suit property and the reliefs available to the plaintiff.

6. In her plaint at paragraph 3, the plaintiff stated that deceased 1 was the registered proprietor of the suit property. PExhibit 2 indicates in part that the plaintiff’s complaint revealed that the owner of the suit property was deceased 1. PExhibit 5 shows that deceased 1 actually passed on. However, by PExhibit 4, deceased 2 was the proprietor of the suit property as at 3rd January 1996.

7. The term “proprietor” under Section 2 of the Land Registration Act 2012 (The Land Registration Act) means;-

a) In relation to land or a lease, the person named in the register as the proprietor; and

b) In relation to a charge of land or a lease, the person named in the register of the land or lease as the person in whose favour the charge is made:

8. It is noted that interest conferred on registration, rights of a proprietor and certificate of title to be held as conclusive evidence of proprietorship are provided for under Sections 24, 25 and 26 respectively of the Land Registration Act. More fundamentally, this court is very conscious of the definition of the term “Land” and protection of right to property as anchored at Articles 260 and 40 respectively of the Constitution of Kenya ,2010 (the Constitution). Nevertheless, the plaintiff did not exhibit any certificate of title or document or at all, to show conclusive evidence of proprietorship of the suit property by deceased 1. Clearly PExhibit 4 discloses that deceased 2 was the proprietor of the suit property as at 3rd January, 1996 and not deceased 1.

9. The plaintiff referred to deceased 1 and deceased 2 at paragraph 3 of the plaint concerning the proprietorship of the suit property. The paragraph reads;-

“The plaintiff is the widow of James Ojunju Oyugi who died on 15th December 2002 and before whose demise was the registered proprietor of land PNo. Kochia/Korayo/694 which was fraudulently acquired by Joseph Opuch Ondiek (now deceased).”

10. It is also abundantly clear that the estate of deceased 1 and 2 call for legal representative(s) which is defined under Section 2 of the Civil Procedure Act (Civil Procedure Act –Cap 21) as follows:-

“Legal representative” means a person who in law represents the estate of a deceased person and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued;”

11. It is the duty of the court to determine the question as to legal representative of deceased party to a suit as provided under Order 24 Rule 5 of the Civil Procedure Rules, 2010 (CPR) which states that :-

“Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff, or a deceased defendant, such question shall be determined by the court.”

12. Moreover, it is mandatory that a person states the capacity in which he/she sues or is sued in a representative capacity. Order 4 Rule 4 of the Civil Procedure Ruleprovides;-

“Where the plaintiff sues in a representative capacity the plaintiff shall state the capacity in which he sues and where the defendant is sued in a representative capacity the plaint shall state the capacity in which he is sued, and in both cases it shall be stated how the capacity arises.”(Emphasis supplied)

13. The plaint as well as the testimonies of PW1 and PW2 do not disclose that the plaintiff is the personal representative of deceased 1. The pleadings and the evidence also do not reveal a personal representative of deceased 2. There is nothing to prove grant of representation with regard to the estates of deceased 1 and deceased 2. To that extent, property of deceased 1 cannot vest on PW1 and Section 79 of the Law of Succession Act (Cap 160) provides that :-

“The executor or administrator to whom representation has been granted shall be the personal representative of the deceased for all purposes of the grant, and subject to any limitation imposed by the grant, all the property of the deceased shall vest in him as personal representative.” (Emphasis added)

14. In Muriithi Ngweya –v- Gikonyo Macharia Mwangi (2017) eKLR ,my learned sister J.G. Kemei, J, took the position which I approve as it is relevant in this matter. The Hon. Judge held that one could represent the estate of a deceased person when a grant of representation had been made in respect of the estate of such deceased under the Law of Succession Act (Cap 160). She further held that it was doubtful whether the procedure in seeking a legal representation of the estate of the deceased was followed as no material had been presented to the court regarding the intended legal representative of the deceased or whether the applicant had filed citation proceedings in respect of the matter.

15. With regard to fraud, Blacks Law Dictionary, 9th Edition page 731 makes the following definition :-

“ A knowing misrepresentation of truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usually a tort, but in some cases, especially when conduct is willful, it may be a crime. A misrepresentation made recklessly without belief in its truth to induce another person to act. ”

16. It was alleged by the plaintiff that deceased 2 fraudulently acquired the suit property. That she has been defrauded of her beneficial equitable interest on the suit property for over 40 years. PW1 and PW2 simply relied on PExhibits 1 to 6 which fail to discern any element of fraud on the part of deceased 2 against the estate of deceased 1.

17. On trespass, PW1 stated that in the year 2012 the defendant who are sons of deceased 2 did trespass into the suit property claiming that the property was theirs and they started to cultivate it. PW1 succumbed to failure to fortify her claim yet she pleaded particulars of fraud and trespass which include:-

“Continuing to trespass and cultivate the same without the consent of the plaintiff.”

18. It is trite law that the tort of the trespass is actionable without proof of any damages; see Nakuru Industries Ltd case (supra).

19. On a general damages for trespass all the plaintiff is entitled to is minimum amount in respect of her claim; ( Erick Edome & Anor-v- Pauline Kasumba Osebe and Anor (2014) eKLR). In my view and considering the entire claim, an award of general damages would not be appropriate as the same is not proved in the circumstances.

20. The plaintiff pleaded particulars of special damages in the sum of kshs. 3,000/= at paragraph 6 of the plaint. In Great Lakes case (supra), special damages must be strictly pleaded and proved. The same must be done with certainty and particularized as judicially noted in Ouma –v- Nairobi City Council (1976-80) KLR 375. However, the plaintiff failed to prove special damages as pleaded or at all.

21. It was craved by PW1 that it be declared that the defendants hold the suit property in trust for her. Trust including customary trusts are overriding interests under Section 28 (b) of the Land Registration Act, 2012.

22. Furthermore in Mwangi and Anor –v- Mwangi (1986) KLR 328 quoted in Macharia Mwangi Maina & 87 Others –v- Davidson Mwangi Kagiri (2014) eKLR, the court of Appeal held that the creation of a trust over Agricultural land situated in a Land Control area does not constitute any “other disposal or dealing” with the land within the meaning of Section 6 (1) (a) of the Land Control Act hence consent of the local land control board is not required. The same applies to rights acquired by adverse possession under Section 7 of the Limitation of Actions Act (Cap 22).However, the plaintiff failed to provide evidence to anchor existence of trust over the suit property.

23. In a nutshell, the plaintiff, claim is un opposed. However, the claim is built on quick sand. There is nothing to establish (a) that deceased 1 was originally the registered proprietor of the suit property (b) legal representative (s) of the estates of deceased 1 and 2, (c) fraud, (d) trespass and (e) general and special damages against the defendants.

24. In the premises, I find that the plaintiff’s case has not been proved on a balance of probability against the defendants. The case is bound to fail as it is misconceived.

25. Afortiori, I strike out the plaintiff’s suit with no order as to costs.

DELIVERED, DATEDand SIGNEDat MIGORI this 17th day of JULY 2018.

G.M.A. ONGONDO

JUDGE

In presence of :-

Learned counsel Ms, Ochwal holding brief for Mr. G.S. Okoth learned counsel for the plaintiff.

Tom Maurice - Court Assistant