[2018] KEHC 7780 (KLR)
The court found that the applicant had established, through uncontroverted evidence and the respondent's criminal conviction, that the transfer of L.R No. MWERUA/KAGIO/1012 to the respondent was fraudulent. The respondent's conviction for obtaining registration by false pretences was not appealed and is admissible...
Source-derived case information.
- Citation
- [2018] KEHC 7780 (KLR)
- Parties
- Applicant: Sospeter Nyaga Mwathi; Respondent: Lucy Muthoni Kibocha Alias Anna Nyawira Karubiu
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2016
- Procedural Posture
- Originating Summons / Judgment
- Outcome
- Originating Summons allowed. Declarations of fraud granted. Rectification of land register ordered. No order as to costs.
- Judges
- BN Olao
- Legal Topics
- Fraudulent Land Transfer, Rectification of Register, Admissibility of Criminal Conviction, Procedure for Fraud Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sospeter Nyaga Mwathi
Applicant
Lucy Muthoni Kibocha Alias Anna Nyawira Karubiu
Respondent
Procedural Posture
Originating Summons / Judgment
Legal Issues
- 1 Whether L.R No. MWERUA/KAGIO/1012 was fraudulently transferred from the deceased to the respondent.
- 2 Whether entries No. 2, 3 and 4 in the land register are fraudulent, null and void.
- 3 Whether the court should order rectification of the land register by cancelling the impugned entries.
Ratio Decidendi
The court found that the applicant had established, through uncontroverted evidence and the respondent's criminal conviction, that the transfer of L.R No. MWERUA/KAGIO/1012 to the respondent was fraudulent. The respondent's conviction for obtaining registration by false pretences was not appealed and is admissible as conclusive proof of fraud. The respondent's failure to respond to the summons and her conduct in feigning death further supported the applicant's case. The court held that the applicant was entitled to the orders sought, including declarations of fraud and rectification of the land register.
Court Disposition
Originating Summons allowed. Declarations of fraud granted. Rectification of land register ordered. No order as to costs.
Orders
- A declaration that L.R No. MWERUA/KAGIO/1012 was fraudulently transferred from the name of Mori Nganga to the name of Anna Nyawira Karubiu.
- A declaration that entries No. 2, 3 and 4 in the register of L.R MWERUA/KAGIO/1012 were and are fraudulent, null and void.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KERUGOYA
ELC CASE NO. 60 OF 2016
SOSPETER NYAGA MWATHI......................APPLICANT
(Suing in his capacity as the Legal
Representative of MORI NGANGA)
VERSUS
LUCY MUTHONI KIBOCHA Alias
ANNA NYAWIRA KARUBIU...........RESPONDENT
JUDGMENT
Citing Article 159 (2) (d) of the Constitution and Section 80 (1) of the Land Registration Act, the Applicant SOSPETER NYAGA MWATHI filed this Originating Summons against the Respondent LUCY MUTHONI KIBOCHA Alias ANNA NYAWIRA KARUBIU seeking the following orders:
1. A declaration that L.R No. MWERUA/KAGIO/1012 was fraudulently transferred from the name of MORI NGANGA to the name of ANNA NYAWIRA KARUBIU while the said MORI NGANGA was already deceased.
2. That there be a declaration that entries No. 2, 3 and 4 in the register of L.R No. MWERUA/KAGIO/1012 were and are fraudulent, null and void.
3. That the Honourable Court be pleased to order the rectification of the register of L.R No. MWERUA/KAGIO/1012 by cancellation of entries No. 2, 3 and 4 forthwith.
The Summons was supported by the affidavit of the Applicant to which were annexed several documents including the certificate of death of MORI NGANGA (the deceased herein), a limited grant of letters of administration issued to the Applicant in respect to the deceased’s Estate, the Green Card in respect to the land parcel No. MWERUA/KAGIO/1012 (the suit land), and proceedings and judgment in KERUGOYA SENIOR MAGISTRATE’S COURT CRIMINAL CASE No. 658 of 2009 REPUBLIC VS LUCY MUTHONI KIBOCHA Alias ANNA NYAWIRA KARUBIU.
The gravamen of the application is that the deceased who was the step-father of the Applicant was at all material times the registered proprietor of the suit land where the Applicant, his siblings and their families have lived exclusively and un-interrupted. However, the Respondent fraudulently transferred the suit land into her names on 27th January 2009 some twenty eight (28) years after the deceased’s death and had the suit land registered in her names as per entries No. 2, 3 and 4 of the register of land. That when this fraud was discovered, the Respondent was charged vide KERUGOYA SENIOR RESIDENT MAGISTRATE’S CRIMINAL CASE No. 658 of 2009 with, among other offences, obtaining registration by false pretences contrary to Section 320 of the Penal Code. She was convicted but before sentence could be passed, the Court was informed that she had died. It later transpired that she was infact alive and doing business at KAGIO TOWNSHIP. When the Police were informed, she disappeared.
The Applicant and his siblings who are now advanced in age therefore moved to this Court seeking the orders above.
The Respondent, though served through substituted service, did not enter appearance nor file any response to the Originating Summons which therefore proceeded ex-parte with the Applicant being the only witness.
I must confess that I found the manner in which the Applicant approached this Court to be rather un-usual. Ordinarily, a party alleging fraud would file a plaint and, as required by Order 2 Rule 10 of the Civil Procedure Act particularize the allegations of fraud levelled against the defendant. However, Section 80 (1) of the Land Registration Act which the Applicant relies upon reads:
“Subject to Sub-section (2) the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake”.
The Applicant has also cited Article 159 (2) (d) of the Constitution and bearing in mind the fact that the Originating Summons is not opposed, I will consider it in that manner.
It is clear from the totality of what has been placed before me that the Respondent fraudulently registered herself as the proprietor of the suit land. Her conviction in KERUGOYA SENIOR RESIDENT MAGISTRATE’S COURT CRIMINAL CASE No. 658 of 2009 was not appealed and is therefore conclusive proof of the fact that the Respondent is a fraudster and is admissible under Section 47A of the Evidence Act. Taken together with the fact that the Respondent did not bother to file any response to the Originating Summons and is infact on the run having feigned her death, it is clear that the Applicant is entitled to the orders sought in the Originating Summons dated 4th May 2016.
I accordingly allow the Originating Summons dated 4th May 2016 and make the following orders:
1. A declaration that L.R No. MWERUA/KAGIO/1012 was fraudulently transferred from the name of MORI NGANGA to the name of ANNA NYAWIRA KARUBIU.
2. A declaration that entries No. 2, 3 and 4 in the register of L.R MWERUA/KAGIO/1012 were and are fraudulent, null and void.
3. The Land Registrar to rectify the register of L.R MWERUA/KAGIO/1012 by cancellation of entries No. 2, 3 and 4 forthwith.
4. No order as to costs.
B.N. OLAO
JUDGE
1ST MARCH, 2018
Judgment dated, delivered and signed in open Court at Kerugoya this 1st day of March 2018
Mr. Abubakar for Applicant present
Respondent absent.
B.N. OLAO
JUDGE
1ST MARCH, 2018