[2017] KEELC 1667 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MILIMANI

MILIMANI LAW COURTS

ELC.NO.104 OF 2008

SOFIA MUTIO MUTUA……………………..….…………….. PLAINTIFF

-VERSUS-

PETER MUHIU NGANGA……………………..………...1ST DEFENDANT

THE HONORABLE ATTORNEY GENERAL…………....2ND DEFENDANT

JUDGEMENT

By a Plaint dated 12th February 2008, The Plaintiff herein Sophia Mutio Mutua has sought for the following orders against the two Defendants herein jointly and severally:

a. That he 2nd Defendant be ordered to cancel and revoke the certificate of lease fraudulently obtained by the 1st Defendant.

b. That the 1st Defendant be held liable to pay general damages for the loss suffered by the Plaintiff as a result of the fraud.

c. Costs.

d. Interest at Court rates.

In her statement of claim, the Plaintiff alleged that she obtained a certificate of lease for land parcel No.Nairobi/Block 82/5874 on 23rd October 1997, for a period of 99 years. She further averred that she carried a search and was surprised to discover that the 1st Defendant fraudulently and without colour of right and in a manner suggesting criminal act caused the said property to be registered in his name in the year 1999. She particularized the fraud perpetuated by the 1st Defendant in her paragraph 5 of the Plaint. That due to the said fraudulent registration, the Plaintiff has suffered loss and damage and therefore this suit. Despite demand made, the Defendants have not made good her claim.

The claim is contested by both Defendants herein. The 1st Defendant, Peter Muhia Nganga, filed his statement of Defence on 22nd September 2009, and denied all the allegations as contained in the Plaint. He alleged that the Plaintiff was a mere nominee of one Fredrick Mutua Mutoko, who was the rightful owner of the parcel of land and who duly sold the same to the 1st Defendant herein. Further that the Plaintiff had no interest to protect in the suit land and the reason why she never challenged the 1st Defendant’s title to the property for a period of 10 years. He also denied the allegations of fraud as stated in paragraph 5 of the Plaint and did put the Plaintiff to strict proof thereof. He further denied having received any demand and/or notice of intention to sue from the Plaintiff prior to the filing of the suit hereof. The 1st Defendant therefore prayed for the dismissal of the Plaintiff’s claim.

The 2nd Defendant too filed its Defence on 29th April 2008, and denied all the contents of the Plaint and did put the Plaintiff to strict proof thereof. The 2nd Defendant too denied the particulars of fraud and did put the Plaintiff to strict proof thereof. It urged the Court to dismiss the Plaintiff’s suit with costs.

After several interlocutory applications and change of Advocates, the hearing commenced on 13th October 2016. Plaintiff gave evidence and called one more witness. The 1st Defendant testified for himself and called no witness. However, the 2nd Defendant did not call any witness but filed its written submissions.

Plaintiff’s Evidence

PW1 – Sophia Mutio Mutua, alleged that she bought the suit property from Fredrick Mutua Mutoko. She relied entirely on her supporting Affidavit dated 26th February 2013. In her stated Supporting Affidavit to the Notice of Motion dated 25th February 2013, wherein she had sought for striking out of the 1st defendant’s Defence, she averred that she got registered as proprietor of Nairobi/Block 82/5874, in the year 1997. However, she conducted a search on the suit land in the year 2007 and discovered that the suit property was transferred to the 1st Defendant in November 1999.

That a transfer to that effect was attested by one Paurvi Rawal Advocate, who has since denied that she attested to the same. PW1 further stated that she has never executed the said transfer of the suit property to the 1st Defendant or any other person and therefore the purported transfer was a forgery. She also stated that she was never a nominee of Fredrick Mutua Mutoko as stated in the 1st Defendant’s Defence. She produced the certificate of title as exhibit 1 in court. In cross examination, she stated that Fredrick Mutua Mutoko sold the suit land to her but she did not have the sale agreement with her. She also stated that she does not live on the suit property. She insisted that the transfer to the 1st Defendant was fraudulent as she did not sign it. PW1 also denied that Paurvi Rawal was her advocate who attested to her signature on the purported transfer. She denied that she was a nominee of Fredrick Mutua Mutoko but she insisted that she purchased the property from Fredrick Mutua Mutoko.

PW2 Paurvi Ramesh Rawal advocate also relied on the affidavit which she swore on 20th February 2013. In her Affidavit, she denied ever being aware of the transfer in question and that she did not draw the documents referred to. PW2 further denied that she attested to the signature of the Plaintiff in the purported impugned transfer document. Therefore the said purported transfer was null and void ab initio for fraud to the extend that she was shown as the advocate who attested the same but she did not. In cross examination, she stated that she only met Mr. Githinji Advocate but not J. Muoki Advocate. She reiterated that the transfer documents were not signed by her and the signature appearing therein was not her signature. She admitted that she never investigated if the stamp on the transfer form was from her Law Firm or not. She was very clear that she never witnessed the Transfer document. PW2 also reiterated that Peter Muhia, the 1st Defendant has never appeared before her and she could not recall seeing him in her office.

1st Defendant’s Evidence

DW1 – Peter Muhia Nganga, adopted his witness statement fully. He testified that he owns the suit property LR.No.Nairobi Block 82/5874. It was his further testimony that he purchased the same in the year 1999 from Fredrick Mutua Mutoko, who was acting for Sophia Mutio Mutua, the Plaintiff herein. He also admitted to having signed the transfer document that was dated 18th October 1999. He produced a certificate of search to show that he was the registered proprietor of the suit property. He also stated that the purchase price was Kshs.350,000/= and the said Fredrick Mutua Mutoko acknowledged receipt of the purchase price. It was his testimony that after he purchased the suit property, he wanted to subdivide it into small plots. He therefore gave his title to his Surveyor who later died before the exercise. He was however unable to retrieve the title and he advertised it as a lost title. Since there was a caveat on the title, he could not obtain a provisional title. Further that he instructed an advocate to follow up the matter of the provisional title but he also died and DW1 was unable to retrieve his documents. DW1 further testified that the said Fredrick Mutua Mutoko also died in the year 2005/2006 and that is when the Plaintiff filed this case. It was his further testimony that he did not procure the title through fraud and that he has never been charged with any criminal offence. He reiterated that he is the one utilizing the land but due to this case, he cannot sell it. In cross examination, he confirmed that Fredrick Mutua Mutoko was acting for Sophia Mutio Mutua the Plaintiff herein and Sophia was the registered owner of the suit property. He stated that he did not doubt that Fredrick Mutua Mutoko was representing the Plaintiff herein. He also stated that Fredrick Mutua Mutoko was a close family friend to Sophia, the Plaintiff herein. He also reiterated that the suit property herein is his, having purchased it from Sophia through Fredrick Mutoko and he wondered why it took the Plaintiff 10 years to place a caveat.

At the close of 1st Defendant’s case, Mr. Terell for the 2nd Defendant informed the court that 2nd Defendant did not wish to call witnesses but would file written submissions. The parties thereafter filed their written submissions.

The Law Firm of A. N. Kirika & Co. Advocates for the Plaintiff filed their written submissions on 5th January 2017, and urged the Court to allow the Plaintiff’s claim. It was submitted that the suit property was owned by the Plaintiff and the same was registered in her name in 1997 and as provided by Section 27(b) of the Registered Land Act Cap 300(now repealed), she had rights and privileges. The said Section provides:-

“The Registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto subject to all implied and expressed agreement, liabilities and incidents to the lease”.

It was also submitted that the registration of the 1st Defendant as the owner of the suit property was procured unprocedurally and illegally and most certainly through corrupt scheme perpetuated with the assistance of the relevant officers of the 2nd Defendant. It was further submitted that the Court should find that the Plaintiff’s registration was the first one and it should be upheld. The Law Firm of Kingori Kariuki & Co. Advocates for the 1st Defendant filed their written submissions on 31st January 2017, and submitted that the Plaintiff was unable to prove fraud on the part of the 1st Defendant. He relied on various decided case among them the case of R.G Patel..Vs..Lalji Makanji(1957)EA 314, where the court held that:-

“Allegation of fraud must be strictly proved. It was incumbent upon the Plaintiff therefore to demonstrate to this court that the transfer of the titles to the Defendants names was fraudulent and specifically explain the actions which constituted the fraud”.

The 1st Defendant further submitted that the Plaintiff did not prove any of the particulars of fraud as set out in the Plaint. There was no evidence that the signatures on the transfer documents were forged. They further relied on the case of Samuel Samita Namunyu..Vs…Philimon Machina Ndiwa & 3 Others (2014) eKLR, where the Court held that:-

“The standard of proof required in fraud is higher than standard of probabilities as in civil cases and the Plaintiff failed to prove the fraudulent acts complained against the Defendants”.

Further, it was submitted that by virtue of Section 27 of the Registered Land Act, Cap 300 (now repealed) the registration of the 1st Defendant as proprietor of the suit property is sufficient proof that he was vested with the absolute ownership of the suit property together with all rights and privileges appurtenant thereto. Further that the rights of a proprietor under Section 28 of the Registered Land Act (repealed) cannot be defeated except as provided in the Act. In that regard, the 1st Defendant cited the case of Michael Githinji Kimotho..Vs..Nicholas Muratha Mugo (1997)eKLR, where the Court held that:-

“the protected rights of a proprietor under Section 28 of the Registered Land Act cannot be defeated except as provided under the Act”.

The 1st Defendant urged the Court to dismiss the Plaintiff’s claim.

The 2nd Defendant through Mr. Stephen Terell, the Litigation Counsel, submitted that there was no connivance to the fraud from the 2nd Defendant as alleged by the Plaintiff. It was the 2nd Defendant’s submissions that the threshold has not been attained as the Plaintiff did not prove fraud on the part of the 2nd Defendant. It was further submitted that the Plaintiff has not demonstrated how the 2nd Defendant connived with the 1st Defendant and perpetuated the fraud alleged. That the 2nd Defendant only acted in good faith and relied upon the documents presented to him for registration.

This Court has not carefully considered the available evidence and the exhibits produced thereto. The Court has also considered the written submissions and the cited authorities. The Court has further considered the relevant provisions of law and it makes the following findings:-

There is no doubt that the suit property herein Nairobi/Block 82/5874 was initially registered in the name of the Plaintiff herein Sophia Mutio Mutua on 23rd October 1997. As a registered proprietor, the said Sophia Mutio Mutua, became the absolute and indefeasible proprietor of the said property. The Plaintiff had stated in her evidence in Court that she purchased the suit property from Fredrick Mutua Mutoko who was the owner thereof. However, the Plaintiff did not produce the sale agreement between herself and the said Fredrick Mutua Mutoko. There is also no doubt that as per the official search carried on 4th July 2007, Peter Muhia Nganga the 1st Defendant herein, is the registered owner of the suit property. The 1st Defendant did not produce a certificate of title as he alleged that the said title was given to his surveyor who passed on before the said title could be handed over to him. However, the official search shows that a certificate of lease is registered in the name of 1st Defendant and was issued on 2nd November 1999. Further, there is no doubt that there is in existence a transfer document dated 18th October 1999 between Sophia Mutio Mutua (the transferor) and Peter Muhia Nganga (transferee) wherein the said Sophia Mutio Mutua allegedly transferred the suit property to Peter Muhia the 1st Defendant herein. The said transfer was registered at the Lands Office. It is also evident that the Plaintiff herein Sophia Mutio Mutua has denied ever having signed the said transfer document. However, the 1st Defendant alleged that indeed he signed the transfer in the presence of one Fredrick Mutua Mutokowho was selling the suit land on behalf of the Plaintiff. The Plaintiff has denied that she authorized the said Fredrick Mutua Mutoko to sell the suit land on her behalf. However, she had alleged that she purchased the suit land from the said Fredrick Mutua Mutoko though she never produced the sale agreement. The 1st Defendant had alleged that the Plaintiff herein was holding the suit land as a nominee for Fredrick Mutua Mutoko and indeed it wasFredrick Mutua Mutoko who was selling the land.

It is also not in doubt that the suit land was registered in the name of the 1st Defendant on 2nd November 1999. However, the Plaintiff did not file this suit until the year 2008. Plaintiff alleged that she carried a search in the year 2007 and that is when she discovered the suit land was registered in the name of the 1st Defendant. She did not inform the Court why it took her 10 years to discover the anomalies.

The 1st Defendant alleged that the said Fredrick Mutua Mutoko who sold the suit land to him died in the year 2005/2006 and thereafter Plaintiff filed this suit. At the core of the dispute herein is one Fredrick Mutua Mutoko who allegedly sold the suit land to Plaintiff and also to the 1st Defendant. However, the suit land is registered in the name of the 1st Defendant. It was registered on 2nd November 1999, under Cap 300 (now repealed) Section 27 of the said Act provides:

a. 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.

b. The registration of a person as the proprietor of a leaseshall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto subject to all implied and expressed agreement, liability and incidents of the lease.

The 1st Defendant as the registered owner of the certificate of lease is deemed to be the absolute and indefeasible owner of the suit property.

Further Section 26(1) of the Land Registration Act provides that:-

“The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor 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, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, 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.

Therefore, on the face of it, the 1st Defendant is the absolute and indefeasible proprietor of the suit property. However, there are exceptions or instances when the said title can be challenged as provided by Section 26(1) (a) & (b).

The Plaintiff alleged that the suit property was registered in favour of the 1st Defendant through fraud and in connivance with the 2nd Defendant. She urged the Court to revoke the certificate of title issued in favour of the 1st Defendant and instead revert the suit property to herself. The Plaintiff has therefore alleged fraud on the part of the Defendants. The onus of proof was on her as provided by Section 107(1) of the Evidence Act which provides:-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”.

The issue now for determination is whether the Plaintiff is entitled to the prayers sought in her Plaint. The Plaintiff has based her claim on the issue of fraud.

As submitted by the 2nd Defendant, Black Law Dictionary 9th Edition defines fraud as:-

“some deceitful practice or willful device resorted to with intent to deprive another of this right or in some manner to do an injury…..Fraud in the sense of a court of equity, properly includes all acts, omissions and concealments which involve a breach of legal or equitable duty, trust or confidence justly reposed and are injurious to another or by which an undue and unconscientious advantage is taken of another.”

Since the Plaintiff based her claim on allegations of fraud, she had a duty to prove the same on the laid down standard. In the case of Railal Gordhanbhai Patel..Vs…Lalji Makenji (1957) EA 315, the Court held that:-

“Allegations of fraud must be strictly proved and although the standard of proof may not be as to require proof beyond any reasonable doubts, it ought to be more than a balance of probabitities.”

Therefore, the Plaintiff herein had a duty to strictly prove each and every allegation of fraud that she has particularized in her Plaint.

The Plaintiff particularized the instances of fraud in her paragraph 5 of the Plaint being that:-

a)That 1st Defendant fraudulently forged the Plaintiff’s signature on the purported document of transfer.

The Plaintiff alleged that she did not sign the Transfer document dated 18th October 1999. However, the 1st Defendant alleged that the suit property was sold to him by Fredrick Mutua Mutoko, who stated that the Plaintiff herein was holding the suit property as his nominee. There is a signature on the transfer document allegedly signed by the Plaintiff, but she denied signing the same. However, this signature was not subjected to handwriting examination by a handwriting expert, to confirm that indeed it was not signed by the Plaintiff herein. Her evidence in court was a mere denial. There was also no evidence connecting the 1st Defendant with signing of the said signature or causing it to be signed. The 1st Defendant did confirm in his evidence that Plaintiff was not present during the signing of the transfer document because Fredrick Mutua Mutoko was present and alleged that the said Sophia Mutio Mutua was his nominee. It is instructive to note that the Plaintiff also said she bought the suit property from the said Fredrick Mutua Mutoko. The Plaintiff did not complain about the registration of the suit property in favour of 1st Defendant until 2007, allegedly after the death of the said Fredrick Mutua Mutoko. What caused the Plaintiff to take that long in discovering the anomaly. There was no sufficient evidence to prove that the 1st Defendant fraudulently forged the Plaintiff signature on the purported document of Transfer. In the case of Assets Co. Ltd..Vs…Mere Roihi & Others (1905) AC 176 & David Nalima Sejjaka…Vs…Rebecca Musoke, Civil Appeal No.12 of 1985, the Court held that:

“A person who present for registration a document which is forged or has been fraudulently or improperly obtained is not guilty if he honestly believes it to be a genuine document which can be properly acted upon.”

The 1st Defendant allegedly signed the transfer document presented to him by Fredrick Mutua Mutoko. He signed it on honest believe that Plaintiff was a nominee of the said Fredrick Mutua Mutoko.

The Court finds that the particulars of fraud in 5(a) have not been proved.

b) Fraudulently forging the signature and official stamp of one Paurvi Ramesh Rawal Advocate as the advocate who executed the transaction.

Though PW2 appeared in Court and denied having signed the purported transfer document, the said signature was also not subjected to examination by the handwriting expert to rule out her involvement. Therefore, PW2’s evidence was mere denial. She also stated that she did not carry out investigations to rule out that the stamp on the document was not from her office. That being the case, the Court finds that the said particulars of fraud have also not been strictly proved.

c) Causing a document of title to be issued to himself by the 2nd Defendant.

The said document of title was issued after a duly signed transfer was presented to the Lands Ministry. It is evident that the said transfer document was also signed by the Commissioner of Lands. No evidence that the said transfer was obtained through fraud as the issue of signature on it was left unanswered.

From the above analysis, the Court finds that the Plaintiff herein was unable to prove her allegations of fraud on the required standard as held on various decided cases: See the case of Urmilla W/O Mahendra Shah..Vs…Barclays Bank International Ltd & Another (1979) KLR 76, where the Court held that:-

“Allegations of fraud must be strictly proved although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, but something more than a mere balance of probabilities is required.”

Having arrived at a finding that the Plaintiff has failed to prove her allegations of fraud, the Court now proceeds to determine whether the 1st Defendant purchased the suit property from Fredrick Mutua

Mutoko.

This Court had earlier found and held that it had no reason to doubt the 1st Defendant’s evidence that the suit property was sold to him by Fredrick Mutua Mutoko. The said Fredrick Mutua Mutoko allegedly died between the year 2005/2006. Thereafter the Plaintiff surfaced and placed a caveat on the suit property and filed this suit. The question that begs answers is why the Plaintiff took 10 years to discover that the suit land was no longer in her name. The 1st Defendant alleged that he has been utilizing the suit land all along. The Plaintiff did not deny that the said Fredrick Mutua Mutoko died in the year 2005/2006 and immediately after, she filed this suit.

Having found that the Plaintiff was unable to explain why it took her long to question the 1st Defendant’s registration as proprietor of the suit land, the Court finds that the 1st Defendant genuinely purchased the suit land from one Fredrick Mutua Mutoko, who presented to him that the Plaintiff was his nominee. The 1st Defendant thereafter got registered as the absolute and indefeasible owner of the suit property. His certificate of lease cannot be challenged under Section 26(1)(a) of the Land Registration Act and therefore this Court finds no reason to impeach the said title. For the above reasons, the Court finds that the Plaintiff herein is not entitled to any of her prayers sought in the Plaint.

Having now carefully considered the available evidence, the Court finds that the Plaintiff has failed to prove her case on the balance of probabilities. Consequently, the Court dismisses the Plaintiff’s claim and/or suit dated 12th February 2008, with costs to the Defendants.

Further the Court directs that the caveat lodged on the certificate of title held by the 1st Defendant be removed with immediate effect.

It is so ordered.

Dated, Signed and Delivered at Thika his 6th day of October 2017.

L. GACHERU

JUDGE

In the presence of

Mr. Kirika for Plaintiff

Mr. Muriithi holding brief for Mr. Kingori Kariuki for 1st Defendant

No appearance for 2nd Defendant

Lucy - Court clerk.

L. GACHERU

JUDGE

Court– Judgment read in open court in the presence of the above stated advocates.

L. GACHERU

JUDGE

6/10/2017