[2023] KEELC 18609 (KLR)

Wambua & 3 others v Kenya Commercial Bank Limited & 2 others (Environment & Land Case 5 of 2020) [2023] KEELC 18609 (KLR) (10 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18609 (KLR)

Republic of Kenya

In the Environment and Land Court at Thika

Environment & Land Case 5 of 2020

JG Kemei, J

July 10, 2023

Between

Jones John Kitili Wambua

1st Plaintiff

Joyce Syokau Kitili Wambua

2nd Plaintiff

Lucy Wangari Kamau

3rd Plaintiff

Joseph Kiarie Kamau

4th Plaintiff

and

Kenya Commercial Bank Limited

1st Defendant

Nancy Njeri Ndung’u

2nd Defendant

Roman Kithinji M’tuamwari

3rd Defendant

Judgment

1. On the 24/1/2020 the Plaintiffs filed suit against the Defendants seeking orders as follows:-a.A permanent injunction be and is hereby issued restraining the Defendants, their agents, servants, employees, family members and or anybody else claiming under them from selling, charging, further charging, offering as collateral, advertising for sale, transferring, encumbering, trespassing, construction, subdividing and or interfering in whatever manner with Land parcel No. L.R 13537/247 Title No. IR 62328. b.A declaration that the Plaintiffs are the bonafide owners of land parcel No. L.R 13537/247 Title No. I.R 62328 and all the developments thereof.c.The Defendants be and are hereby ordered to surrender the original Certificate for Title for Land Parcel No. L.R 13537/247 title No. I.R 62328 to the Plaintiffs within thirty (30) days of the date of this Judgment.d.The 1st Defendant be and is hereby ordered to discharge Land Parcel No. L.R 13537/247 title No. I.R 62328 Within Thirty (30) days of the date of this Judgment.e.The 1st Defendant be and is hereby ordered to discharge Land parcel No. L.R 13537/247 title No. I.R 62328 Within Thirty (30) days from the date of this Judgment and in default the Registrar of Titles Ardhi House is hereby ordered to discharge Land Parcel No. L.R 13537/247 Title No. I.R 62328. f.The Registrar of Titles, Ardhi House be and is hereby ordered to cancel all entries indicating that the 2nd Defendant is the registered proprietor of Land Parcel No. L.R 13537/247 Title NO. I.R 62328 and revert it back to Francis Ndung’u Kiania and subsequently register the Plaintiffs as the registered proprietors thereof and to dispense with production of the original Certificate of Title and or any other document that he/she may require from the Defendants and or administrator of the Estate of Francis Ndung’u Kiania or Josephine Wanjiru Ndung’u (Deceased).g.That the Deputy Registrar of this Court do execute all the necessary transfer, transmission and or discharge forms on behalf of the Defendants and or the administrators of the Estate of Francis Ndung’u Kiania (Deceased) or Josephine Wanjiru Ndung’u (Deceased).h.A declaration that the charge registered in favour of the 1st Defendant against Land Parcel No. L.R 13537/247 title No. I.R 62328, the statutory and redemption notices are illegal, unlawful, null and void for all purposes and intents and the same are hereby cancelled.i.Costs and interests of the suit.j.Any other and or such further relief as the Court may deem fit and just to grant.

2. It is the Plaintiffs’ case that the suit land was registered in the name of Francis Ndungu Kiania, deceased who subdivided the land into 4 portions (subplots A, B, C & D) and sold to the Plaintiffs variously between the years 1995 – 1998. The Plaintiffs took possession of the suit plots and developed residential houses where they live todate.

3. As fate would have it the vendor died in 2007 before formally transferring the parcels to the Plaintiffs.

4. At the Confirmation of Grant in the estate of Kiania, deceased, the Plaintiffs were named as beneficiaries of the sub plots they purchased in the Confirmation of Grant dated 25/2/2013.

5. Unknown to the Plaintiffs, the 2nd Defendant, a daughter to the deceased vendor charged the suit land to the 1st Defendant to secure loan facilities in favour of the 3rd Defendant. Arising from default, the 1st Defendant caused an auctioneer to issue a redemption notice indicating that the suit land would be sold by public auction on 4/3/2022.

6. The Plaintiffs aver that the Defendants have committed fraud against them and pleaded particulars of fraud in paragraph 12 a – j of the Plaint. That the Defendants intend to sell the land to their detriment in a purported exercise of statutory power of sale.

7. Vide a Statement of Defence filed on 3/7/2020, the 2nd Defendant denied the Plaintiffs’ claim and contended that the Plaintiffs have never been beneficiaries of the estate of her late father. In a further interesting twist of events she contended that the 3rd Defendant unlawfully charged the property to the 1st Defendant to access a loan facility which the 2nd Defendant did not benefit from and thereafter neglected to service the loan. That she withdrew the application of revocation of the Grant issued in the estate of his late father upon the death of her mother who was the sole administrator.

8. The 1st Defendant denied the Plaintiff’s claim vide its Statement of Defence filed on 18/6/2020. In the main, the particulars of fraud were denied.

9. Further the 2nd Defendant gave a lengthy history of the transaction leading to the charge of the suit land by the 2nd Defendant to guarantee loan facilities to the 3rd Defendant. That the 2nd Defendant availed the title document for the suit land as the personal representative of the estate of Francis Ndungu Kiania, on the strength of which the 1st Defendant advanced a loan in the sum of Kshs. 5M to the 3rd Defendant for purposes of purchasing a truck. Resultantly a charge was registered on the title however the 2nd and 3rd Defendants defaulted in repaying the loan and hence exercise of its statutory power of sale by the 1st Defendant by auctioning the suit land on 4/3/2020.

10. The 1st Defendant further averred that the 2nd Defendant’s title was devoid of any defect arising out of its due diligence on the title. It further averred that the Plaintiffs have no proof of fraud by the 1st Defendant. It urged the Court to dismiss the Plaintiffs’ claim with costs.

11. PW1 – Jones John Kitili Wambua testified on his behalf and on behalf of the co-Plaintiffs and relied on the witness statement dated 23/1/2020. He produced the documents contained in the List of Documents dated 23/1/2020 and 13/7/2021 marked as PEX No. 1 – 27. The witness stated that he purchased Plot No. A and B in 1998 from Francis Ndungu Kiania. The 3rd and 4th Defendants also purchased plots C & D from the same vendor. The vendor obtained Land Control Board’s Consents to transfer the sub plots of the said parcel to the Plaintiffs. Thereafter they were put in possession and constructed houses thereon. Before the transfer was effected the vendor died in 2007. The vendor’s wife, who was the legal administrator of her husband’s estate added the Plaintiffs as creditors of the estate in the certificate of confirmation of grant issued in 2011.

12. At the hearing, the witness stated that they paid the purchase price in full. That the 2nd Defendant filed a Revocation of Grant but later withdrew the application. He confirmed that he is aware that only one letters of grant of administration with respect to the estate of Kiania were issued to the wife of the deceased’ vendor and not the 2nd Defendant. That the Court confirmed that the genuine grant is the one dated 29/6/2011 issued to Josephine Wanjiru Kiania.

13. DW1 – Peter Maina Mwirigi stated that he works as a Branch Manager in the 1st Defendant’s bank. He relied on his witness statement in evidence in chief. He produced documents marked as DEX No. 1 – 11 in support of the 1st Defendant’s defence.

14. He stated that the land was registered in the name of Francis Ndungu Kiania. He confirmed that the said Kiania never visited his office nor signed the Letter of Offer.

15. It was his evidence that the loan was advanced to the 3rd Defendant based on the letters of administration in favour of 2nd Defendant and the Certificate of Confirmation of Grant issued to the 2nd Defendant. That the bank lawyers carried out due diligence to the satisfaction of the bank that granted the loan facility in favour of the 3rd Defendant.

16. When shown the certificate of confirmation of grant dated 25/2/2013 he confirmed that Plaintiffs were included as beneficiaries of the suit land and that the administrator was Josephine Wanjiru Ndungu, whose Letters of Grant of Administration was reconfirmed by the Court as the genuine one. That the property was transferred to the 2nd Defendant in 2017.

17. DW2 – Ibrahim Robow testified and stated that he is the Court Administrator at Thika ELC. He produced Succession file No. 147 of 2011 in the Estate of Francis Ndungu Kiania. According to the file he informed the Court that the Grant dated 29/6/2011 was issued to Josephine Wanjiru Ndungu and confirmed on 25/2/2013.

18. When showed the Grant issued on 29/6/2011 in the name of Nancy Njeri Ndungu, the witness confirmed that this Grant does not exist in the Succession Cause file. He also confirmed that there is no Confirmation of Grant issued in the name of Nancy Njeri Ndungu.

19. At this point the Plaintiff moved the Court to have the 2nd and 3rd Defendants cases be deemed as closed.

The written submissions 20. The Plaintiff filed written submissions on 30/3/2023 through the firm of Milimo Muthomi & Co. Advocates.

21. The law firm of J. K. Kibicho & Co Advocates filed written submissions on behalf of the 1st Defendant.

22. The 2nd Defendant failed to file any written submissions.

23. The Plaintiffs submitted that the 3rd Defendant took a loan facility of Kshs. 5 Million and the 2nd Defendant acted as the guarantor and unlawfully offered the suit land as security. The 2nd Defendant had no authority to deal with suit land which belonged to the Plaintiffs in various shares as distributed by the Court in the estate of Francis Ndungu Kiania vide the certificate of confirmation of grant. The Plaintiffs have been in occupation of the land since 1998 and have built rental houses thereon. The 3rd Defendant defaulted in loan repayment and the 1st Defendant purported to exercise statutory power of sale though illegal.

24. As to who is the beneficial owner of the property, the Plaintiffs submitted that they are the lawful owners of the property. That the beneficiaries of the estate of the deceased are aware of the Plaintiffs rights and interests in the land and voluntarily recognised them as such in the succession cause. That the 1st Defendant failed to carry out proper due diligence. That the suit land was inherited pursuant to the Certificate of Confirmation of Grant produced by the Plaintiffs and the Executive Officer, Thika Law Courts.

25. As to whether the charge over the suit land is valid, the Plaintiff submitted that the 2nd Defendant forged the Grant of Letters of Administration and the Certificate of Confirmation of Grant in the estate of the deceased vendor in her favour. That the said forged documents were used to effect the transfer of the said suit property in her name. That the 2nd Defendant colluded with the other Defendants to unlawfully and fraudulently utilise the suit property as collateral for a loan facility in favour of the 3rd Defendant. Consequently, the transfer and the registration of the suit property based on forged Court documents was fraudulent and illegal to the extent that the 2nd Defendant did not obtain a good title over the suit land capable of creating a legal and valid charge in favour of the 2nd Defendant.

26. The Plaintiffs further submitted that according to the confirmation of Grant on record they were included as beneficiaries of the estate of Francis Ndungu Kiania. That the transfer of the suit land to the beneficiaries (Plaintiffs) was delayed by the death of the administrator of the estate. The 2nd Defendant is not the legal administrator of the estate of the deceased hence had no authority to deal with the suit property. The purported registration and charging of the land are therefore acts that amount to intermeddling which therefore lenders the legal charge in favour of the 3rd Defendant null and void. The provisions of Section 45 of the Law of Succession Act were cited as follows:-(1)Except so far as expressly authorized by this Act, or by any other written law, or by a Grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased.(2)Any person who contravenes the provisions of this section shall-(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such find and imprisonment; and(b)be answerable to the rightful executor or administrator to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration."

27. In addition, the Plaintiff submitted that they are not tenants of the estate of the deceased but bonafide owners of the suit property pursuant to the confirmation of the Grant. That the Defendants are fraudsters and intermeddlers with no legal authorisation to deal with the affairs of the estate. See the case of In the Matter of the Estate of Veronica Njoki Wakagoto (deceased) (2013)eKLR; Peter Tharee Mwaura (substituted for Joyce Nungari Mwaura) Vs. Geoffrey Kaguru Mwaura & 2 Others (2014)eKLR.

28. The 1st Defendant submitted that the 3rd Defendant applied and was advanced a loan facility of Kshs. 5 Million from the 1st Defendant on 13/10/2016. The loan facility was secured by a legal charge over the suit property registered in the name of Francis Ndungu Kiania (Deceased). The title of the suit property was offered by the 2nd Defendant together with the Grant of Letters of Administration and Certificate of Confirmation of Grant issued to the 2nd Defendant. It was further submitted by the 1st Defendant that it conducted due diligence by way of a search at the Lands Registry, physical visit by its valuer and sought confirmation of the letters of administration and the Certificate of Confirmation of Grant from the Chief Magistrate’s Court at Thika which Court confirmed the said documents as true copies of the originals.

29. It was contended by the 1st Defendant that the 3rd Defendant defaulted in the payment of the loan necessitating the exercise of the statutory power of sale through a public auction of the property. It was further contended that the outstanding amount due to the 3rd Defendant stand at Kshs. 3. 9 Million as at 10/12/2019.

30. As to the whether the Plaintiffs are entitled to the prayers sought, the 1st Defendant submitted that it is doubtful whether the Plaintiffs settled the purchase price in full given that no evidence was produced before the Court in support of the Plaintiffs position that they are purchasers of the suit land. The 1st Defendant questioned why the Plaintiffs, despite being put in possession failed to obtain title to the suit property. That in the absence of the 2nd Defendant’s testimony in Court as to the ownership of the suit property the 1st Defendant can only submit as to its interest comprised in the charge over the suit property. The 1st Defendant further faulted the Plaintiffs for not raising any objection in 2016 when the bank carried out its inspection of the suit property. Further the 1st Defendant felt exonerated by the confirmation of the Letters of Grant of administration and the confirmation of Grant by the Chief Magistrate giving it no reason to doubt its authenticity. That there was therefore no reason for the 1st Defendant to peruse the Court file to establish the beneficiaries and whether the 2nd Defendant was the legal administrator of the estate.

31. It was further submitted that the 2nd Defendant’s action of charging the property was well within the law and the creation of the charge was regular. That it was also justified in exercising its statutory power of sale in accordance with Section 90(1) of the Land Act.

32. The Court has been urged to find that the 1st Defendant holds the original title to the suit property. Relying on the case of Eviline Kariga (Suing as Adminstratix of Estate of Late Muriungi M’Chuka alias Miringu M’Gichunga) Vs. Mchabari Kimore (2022)eKLR the 1st Defendant submits that the Plaintiffs having failed to proof title the 2nd Defendant ought to be taken as prima facie owner of the suit land. It was further submitted that the Plaintiffs failed to proof fraud and /or forgeries on the part of the Defendants. That fraud must be pleaded and strictly proved as set out in the case of Kinyanjui Kamau Vs. George Kamau (2015)eKLR and in the case of Ndolo Vs. Ndolo (2008)1KLR at page 742 having failed to prove ownership the Plaintiffs allegation of fraud against the 2nd Defendant are therefore unsubstantiated. The charge registered against the title is valid and the Court was urged to rely on the holding of the case of Zipporah Wanjiku Kariuki Vs. Progressive Credit Ltd & 2 Others (2021) eKLR where the Court held:-“It is not in doubt that the suit property has been charged in favour of the 1st Defendant. It therefore follows that the 1st Defendant has an interest over the said suit property. For the Court to give an order for cancellation of the title, it would be discharging the charge that is in favour of the 1st Defendant …. Therefore, the Court finds and holds that the Order for a permanent injunction cannot be granted as against the Defendants as they have rights over the said property ….“While the Court is sympathetic to the Plaintiff who claims to have paid all the amount owed to the 3rd Defendant, it is quite clear that the Plaintiff enabled the 3rd Defendant and no amount of due diligence would have led the 1st Defendant to find otherwise. It would only have been proper for the Plaintiff to have legally sought for the revocation of the title held by the 3rd Defendant which did not happen.”

33. On the issue of costs the Court was urged to award costs in favour of the 1st Defendant on the grounds that it carried out its due diligence charged the property in the absence of any taint or defect.

34. The 3rd Defendant submitted that the loan facility was to be repaid by the 2nd and 3rd Defendants in equal shares. That the 3rd Defendant fully repaid his share but the 2nd Defendant defaulted. That following the default by the 2nd Defendant the 1st Defendant exercised its statutory power of sale over the suit land.

35. The 3rd Defendant submitted that he obtained a loan in the sum of Kshs 5 Million on behalf of the 2nd Defendant, the beneficiary of the estate of Francis Ndungu deceased, who offered the suit land to secure the loan facility.,

36. As to whether the 3rd Defendant was aware of the defects in the title deed, the 3rd Defendant submitted in the negative given that it is the 2nd Defendant who had the title documents.

37. Having considered the pleadings of the parties the evidence tendered at the hearing, the written submissions placed before the Court and all other materials before the Court the issues that commend themselves for determination are as follows:-a.Whether the Plaintiffs have proved fraud on the part of the Defendants.b.Who meets the cost of the suit?

38. Before addressing the issues raised by the Court above, I find it necessary to address the undisputed facts as well as the background of this suit.

39. The suit property L.R. 13537/247 was registered in the name of Francis Ndungu Kiania on 6/4/1994.

40. It is the Plaintiff’s case that the registered owner of the suit land subdivided the land into four parcels namely; A, B, C & D in or around 1997. Consequently, the Plaintiff entered into sale agreements on various dates for the purchase of the said sub plots. Sub plot A was sold to the 1st and 2nd Plaintiffs vide an agreement of sale dated 24/8/1998. On the 24/10/1998 sub plot B was sold to the 1st Plaintiff vide agreement of the said date. Plot No. C was sold to the 4th Plaintiff in 1995. Plot No. D was sold to Zakayo Gitau Kamau (deceased) who was the husband to the 3rd Defendant. The agreements on record in support of the said transactions have not been rebutted.

41. Evidence was led to show that the deceased Francis Ndungu Kiania obtained Land Control Board consents for the sub plots during the period of 1995 to 1997. It is not in dispute that the Plaintiffs took possession and settled on the suit properties whereupon they have constructed residential and commercial houses on the suit property and unchallenged evidence in form of electricity, water and sewerage connections was presented in Court in support.

42. PW1 led evidence that the transfer of the sub plots into the names of the Plaintiffs was not concluded as the deceased owner passed away on the 16/1/2007, a Certificate of death dated 28/2/2007 was adduced as evidence in support.

43. Following the death of Mr. Kiania, his widow namely Josephine Wanjiru Ndungu petitioned for letters of administration in respect of his estate. The Grant was issued in her favour on 29/6/2011. The Certificate of Confirmation of Grant was issued on 25/2/2013 wherein the Plaintiffs were included as beneficiaries of the sub plots arising from the suit land. Evidence was led by PW1 that the 2nd Defendant who is a daughter of the deceased Kiania filed an application seeking to revoke the Grant issued to Josephine Wanjiru Ndungu on the 8/1/2014. He testified before the Court that the said application was later withdrawn leaving the distribution of the estate of the deceased in accordance with the Certificate of Confirmation of Grant dated 25/2/2013.

44. It is not disputed that the suit land was charged to the 1st Defendant on 31/1/2017. DW1 Peter Maina Mwirigi led evidence that vide a letter of offer dated 13/10/2016 addressed to the 3rd Defendant the 1st Defendant advanced a loan of Kshs. 5 Million to the 3rd Defendant to finance the purchase of a truck. The loan was repayable within a period of 60 months and the facility was charged by legal charge of L.R. No. 53916/15 in the name of Francis Ndungu Kiania as well as personal guarantee and indemnity and guaranteed by the owner for Kshs. 5 Million. Subsequently a charge was drawn in favour of the 1st Defendant to secure the loan facility, the guarantor being the 2nd Defendant and the borrower being the 3rd Defendant. It is the case of the 1st Defendant that it carried out due diligence on the title before advancing the loan. The 1st Defendant’s witness testified that they carried out a search on the title, physically inspected the property and obtained a confirmation from the Magistrate’s Court on authenticity of the Grant in favour of the 2nd Defendant and Certificate of Confirmation of Grant thereof. That in carrying out all these acts of due diligence there was no evidence of defect on the title or any objection by the Plaintiffs with respect to the ownership of the property in particular, the Plaintiffs never raised any objection when its valuer inspected the property seeing that the Plaintiffs claim to have taken possession of the land way back in 1998 or thereabouts.

45. On the other hand the Plaintiffs’ case is that they are the bona fide owners of the suit land in accordance with the distribution pursuant to the Certificate of Confirmation of Grant dated, 25/2/2013. It is their case that the 2nd Defendant fraudulently obtained letters of Grant of administration and the Certificate of Confirmation of Grant in her favour, fraudulently caused the registration of title in her name and illegally availed the title to the 1st and 3rd Defendants to guarantee the loan facility in favour of the 3rd Defendant.

46. The 1st Defendant contends that it carried out proper due diligence on the title before advancing the loan facility to the 3rd Defendant, which facility was guaranteed by the 2nd Defendant and secured with the suit property. Further that the title in the name of the 2nd Defendant is valid and the charge and interest created in its favour is valid and urged the Court to uphold it and dismiss the case of the Plaintiffs.

47. The question before the Court is whether the Plaintiffs have proved fraud against the Defendants.

48. Fraud is defined as:-“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”

49. In the case of Vijay Morjaria Vs. Nansingh Madhusingh Darbar & Another [2000] eKLR, the Court held as follows:“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.”

50. The law provides under Section 26 of the Land Registration Act grounds in which a title may be impeached as follows;(1)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.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.”

51. In answering the question above the Court has been presented with two Letters of Grant of Administration and two Certificates of Confirmation of Grant in estate of Francis Ndungu Kiania. Both documents bear the same dates. The letters of Grant in the name of Josephine Wanjiiru Ndungu on 29//6/2011. The Certificate of Confirmation of Grant was issued on 25/2/2013 and the estate was distributed as follows:-Name Description of Property Share of Heirs

Josephine Wanjiru Ndungu Kwale/Kundutsi “B”/1188 Solely

Jones John Kitili WambuaJoyce Syokau Kitili Wambua IR 62328 (L.R 13537/247) 0. 1310Ha. Jointly

Jones John Kitili WambuaJoyce Syokau Kitili Wambua 0. 1012Ha. Jointly

Lucy Wangari Kamau 0. 1012Ha.

Joseph Kiarie Kamau 0. 1012Ha

52. The 1st Defendant witness led evidence that the 2nd Defendant presented to it the original title, the letter of Grant of administration and Certificate of Confirmation of Grant in the estate of Francis Ndungu Kiania. That on the basis of these documents, the 1st Defendant advanced the loan to the 3rd Defendant and secured with the title to the suit land. The Grant of Letters of Administration in favour of Nancy Njeri Ndungu was issued on 29/6/2011 while the Certificate of Confirmation of Grant was issued on 25/2/2013. The estate was distributed as follows:-Name Description of Property Share of Heirs

Nancy Njeri Ndungu Kwale/Kundutsi “B”/1188 Solely

Nancy Njeri Ndungu IR 62328 (L.R 13537/247) Solely

53. The Court is called upon to determine which of the documents are valid. PW1 led evidence that after the Certificate of Confirmation of Grant was issued the 2nd Defendant sought to revoke the Grant vide an application filed in Court that later the said application was withdrawn. In the absence of the revocation of the grant issued to Josephine Wanjiru Ndungu, it is not plausible for the same Court using the same file number to issue a second grant dated the same dates to the 2nd Defendant. It becomes immediately clear that the grant issued to the 2nd Defendant stands on quick sand.

54. The 2nd Defendant in her statement of defence has contended that she was not aware of confirmation of Grant which listed the Plaintiffs as beneficiaries. The Court has perused the letter dated 8/2/2011 authored by the area Chief to the Executive Officer, Thika Law Courts which listed the Plaintiffs as Interested Parties in the estate. The 2nd Defendant Nancy Njeri Ndungu gave consent on the 28/3/2011 to the making of Grant of Administration intestate to her mother Josephine Wanjiru Ndungu as the administrator of her father’s estate. Nancy Njeri Ndungu also consented to the mode of distribution vide the document dated 16/11/2012 where she appended her signature. The Court finds that the signature of the 2nd Defendant is similar to her signature as appearing on the 2nd Defendant witness statement and the charge document. The Court finds that the 2nd Defendant was aware and participated fully in the Petition of Grant of Letters of Administration leading to the issuance of the Grant in the name of Josephine Wanjiru Ndungu.

55. The Court has noted that the 2nd Defendant annexed the Grant of Letters of Administration in the name of Josephine Wanjiru Ndungu and the Certificate of Confirmation of Grant dated 25/2/2013 to her witness statement. The Grant in the name of the 2nd Defendant was produced by the 1st Defendant. The lingering question in the mind of the Court is whether the 2nd Defendant disowned the Grant and the Certificate of Confirmation of Grant allegedly in her favour.

56. DW2 one Ibrahim Robow the Court Administrator testified and produced the file Succession Cause No. 147 of 2011 Thika in the Estate of Francis Ndungu Kiania before the Court. He confirmed to the Court that the file was the authentic record of the Court and the Petitioner in the Succession Cause is Josephine Wanjiru Ndungu. The Grant was issued to Josephine Wanjiru Ndungu on 29/6/2011 and the Certificate of Confirmation of Grant was issued on 25/2/2013. He also confirmed that as per the Certificate of Confirmation of Grant aforesaid the estate was distributed as follows:-Name Description of Property Share of Heirs

Josephine Wanjiru Ndungu Kwale/Kundutsi “B”/1188 Solely

Jones John Kitili WambuaJoyce Syokau Kitili Wambua IR 62328 (L.R 13537/247) 0. 1310Ha. Jointly

Jones John Kitili WambuaJoyce Syokau Kitili Wambua 0. 1012Ha. Jointly

Lucy Wangari Kamau 0. 1012Ha.

Joseph Kiarie Kamau 0. 1012Ha

57. He was categorical that according to the record there was no Grant /Certificate of Confirmation of Grant issued to Nancy Njeri Ndungu.

58. The 1st Defendant has argued that it obtained a confirmation that the Court confirmed the Grant / Confirmation of Grant in the name of Nancy Njeri Ndungu and faulted the Court for misleading it leading to the advancement of the loan. In support of this averment the 1st Defendant failed to produce the letter from the said Court confirming the authenticity or otherwise of the Grant in the name of Nancy Njeri Ndungu. Going by the unchallenged evidence of DW2 and upon perusal of Succession Cause No. 147 of 2011 it is doubtful that the Court would confirm facts contrary to the record. It is the finding of this Court that the Grant of Letters of Administration and the Certificate of Confirmation of Grant allegedly in the name of Nancy Njeri Ndungu are void, fraudulent and illegal.

59. The letter of offer dated 13/10/2016 states that the facility shall be secured by LR 53916/15 registered in the name of Francis Ndungu Kiania. The said letter of page 13 purports to have been signed by Francis Ndungu Kiania (guarantor) and the question that begs an answer is whether the deceased resurrected from his grave and signed the letter of offer in 2016 noting that he passed away in 2007. The charge document bears the description of the security as L.R 13537/247 while the letter of offer bears a different land reference number. The Court notes that there is a discrepancy between the security in the letter of offer and the charge document raising the question of uncertainty of the charge.

60. There is a more fundamental issue that the Court must address in respect to entry No. 2 dated 31/1/2017 on the title which states as follows:-“Grant of Letters of Administration of Estate of Francis Ndungu Kiania – deceased to Nancy Njeri Ndungu, administrator.”

61. The 1st Defendant’s argument is that the loan was advanced to the 3rd Defendant and guaranteed by the 2nd Defendant, the purported registered owner of the suit land. The Court has keenly perused the certified copy of the title produced in evidence and finds no entry with respect to the registration of the title in the name of Nancy Njeri Ndungu. The entry referred to above states that Nancy Njeri Ndungu is the administrator of the Estate of Francis Ndungu Kiania. There is no entry transmitting the suit land in the name of Nancy Njeri Ndungu. The Court finds that at no time did Nancy Njeri Ndungu become the registered owner of the suit land.

62. The question that begs an answer is how the 1st Defendant in the absence of the registration of Nancy Njeri Ndungu charge the property of the deceased purportedly under the name of a stranger. Had the bank carried due diligence including the perusal of the Succession Cause file it would have discovered that Nancy Njeri Ndungu was neither an administrator of the estate of Francis Ndungu Kiania nor a beneficiary of the suit land. The Court is not persuaded that the 1st Defendant carried out proper due diligence before securing the loan facility with the property of the deceased, which property according to the Certificate of Confirmation of Grant issued on 25/2/2013 had been legally distributed to the Plaintiffs. In buttressing that point the Court relied in the case of Isaiah Mosira Momanyi Vs Daniel Omwayo (2013)eKLR:-“It is trite law that the estate of a deceased person can only be represented in any legal proceedings by a person who is duly authorised to do so on behalf of the estate. Only a person who has been issued with Grant of Letters of Administration has capacity to represent the estate of a deceased person.”

The Court associates itself with the holding of the Court above. 63. In conclusion the Court makes the following findings; the Estate of Francis Ndungu Kiania was fully administered vide Certificate of Confirmation of Grant issued on 25/2/2013; the grant issued to Josephine Wanjiru Ndungu was never revoked; the beneficiaries of the suit land are the Plaintiffs; the 2nd Defendant was never appointed an administrator of the estate of the deceased; the 2nd Defendant was never issued with any certificate of confirmation of Grant in the estate of the deceased; the 2nd Defendant was never a beneficiary of the estate and did not acquire any interest and or right in the suit property; the purported entry of the name of the 2nd Defendant on the title as legal administrator is vitiated by fraud ; consequently the 2nd Defendant having acquired no interest and or right in the suit land had no capacity nor passed any good title to the 1st Defendant; the charge by the 1st Defendant in favour of the 1st Defendant to secure loan facilities in favour of the 3rd Defendant is void, fraudulent and illegal; the charge created over the suit land was therefore hollow and incapable of any legal probity; the 1st Defendant did not exercise due diligence as a lender in creating the charge over the suit land.

64. Having held that the Defendants acted in concert to defraud the Plaintiffs, the Court will proceed to cancel the title in the name of the 2nd Defendant and the charge created thereon in line with Section 80 of the LRA Act. It would appear that the 2nd Defendant was the mastermind of the fraud and no wonder she made no show at the hearing despite service. The 1st Defendant is not without a remedy given that the 2nd and 3rd Defendant have not challenged disbursement of the loan proceeds. I say no more.

Who shall bear costs of the suit? 65. Although costs of an action or proceeding are at the discretion of the Court, the general principle is that costs shall follow the event in accordance with the proviso to Section 27 of the Civil Procedure Act (Cap.21). As such, the successful litigant should ordinarily be awarded costs unless, for good reason, the Court directs otherwise. The Plaintiffs case is merited and are therefore entitled to costs.

66. Having considered and reviewed all the evidence and material placed before the Court the Court finds that the Plaintiffs have proved their case against the Defendants on a balance of probabilities accordingly the Judgment against the Plaintiffs as follows:-a.It is hereby declared that the Plaintiffs are the bonafide owners of land parcel No. L.R 13537/247 Title No. I.R 62328 and all the developments thereof.b.It is hereby declared that the title in the name of the 2nd Defendant was obtained through fraud and the same be and is hereby cancelled.c.It is hereby declared that the charge registered in favour of the 1st Defendant against Land Parcel No. L.R 13537/247 title No. I.R 62328 and the statutory and redemption notices are illegal, unlawful, null and void for all purposes and intents and the same are hereby cancelled.d.The Registrar of Titles, Ardhi House be and is hereby ordered to cancel all entries indicating that the 2nd Defendant is the registered proprietor of Land Parcel No. L.R 13537/247 Title NO. I.R 62328 and revert it back to Francis Ndung’u Kiania and subsequently register the Plaintiffs by way of transmission as the registered proprietors thereof and to dispense with production of the original Certificate of Title and or any other document that he/she may require from the Defendants and or administrator of the Estate of Francis Ndung’u Kiania or Josephine Wanjiru Ndung’u (Deceased).e.That the Deputy Registrar of this Court do execute all the necessary transfer, transmission and or discharge forms on behalf of the Defendants and or the administrators of the Estate of Francis Ndung’u Kiania (Deceased) or Josephine Wanjiru Ndung’u (Deceased).f.A permanent injunction be and is hereby issued restraining the Defendants, their agents, servants, employees, family members and or anybody else claiming under them from selling, charging, further charging, offering as collateral, advertising for sale, transferring, encumbering, trespassing, construction, subdividing and or interfering in whatever manner with Land parcel No. L.R 13537/247 Title No. IR 62328. g.Costs shall be in favour of the Plaintiffs.

67. Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 10TH DAY OF JULY, 2023 VIA MICROSOFT TEAMS.J G KEMEIJUDGEDelivered online in the presence of;Ms. Wamboi HB Muthomi for 1st, 2nd, 3rd and 4th PlaintiffsMs. Cheruiyot for 1st Defendant2nd Defendant – Absent3rd Defendant – AbsentCourt Assistant – Phyllis & Lilian