[2022] KEELC 2513 (KLR)

Wanjala v Wanjala & 4 others (Environment & Land Case 47 of 2016) [2022] KEELC 2513 (KLR) (21 July 2022) (Judgment)

Neutral citation: [2022] KEELC 2513 (KLR)

Republic of Kenya

In the Environment and Land Court at Bungoma

Environment & Land Case 47 of 2016

BN Olao, J

July 21, 2022

Between

Rose Namalwa Wanjala

Plaintiff

and

Moses Wanjala

1st Defendant

Emmanuel Sikuku

2nd Defendant

Carolyne Auko Akanga

3rd Defendant

District Land Registrar

4th Defendant

Attorney General

5th Defendant

Judgment

[1]It is not clear why some men’s visions are still blurred by this misguided notion that women should not own land. Article 40(1) of the Constitution is emphatic that: -40(1)“Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property –(a)of any description; and(b)in any part of Kenya.” Emphasis mine.

[2]Article 27 on the other hand provides for equality and freedom from discrimination. It states in sub – articles 1, 2, and 3 that: -27(1)“Every person is equal before the law and has the right to equal protection and equal benefit of the law.(2)Equality includes the full and equal enjoyment of all rights and fundamental freedoms.(3)Women and men have the right to equal treatment including the right to equal opportunities in political, economic, cultural and social spheres.” Emphasis mine.

[3]The problem of the male gender trying to short change their mothers and sisters out of their entitlement to property, especially land, is endemic. This is one such case where a son has tried, albeit unsuccessfully as will soon be clear, to defraud the mother of her share of land.

[4]Rose Wamalwa Wanjala (the plaintiff) and Moses Wanjala (the 1st defendant) are a mother and her son. They were jointly registered as proprietors of the land parcel No East Bukusu/South Nalondo/2684 (the suit land) on 10th December 2012.

[5]On 3rd June 2013 the suit land the title thereto was registered in the sole names of the 1st defendant and he obtained a title deed in his names on 5th June 2013. That title was subsequently closed on 16th March 2016 upon the sub – division of the suit land to create land parcels No East Bukusu/South Nalondo/6914, which was registered in the names of Emmanuel Sikuku (the 2nd defendant) and land parcels No East Bukusu/South Nalondo/ 6915 and 6916 both registered in the names of Carolyine Auko Akanga (the 3rd defendant).

[6]It is the plaintiff’s case that the sub – division of the suit land to create those three (3) parcels of land was done fraudulently. She therefore filed this case on 9th June 2016 seeking Judgment against the defendants in the following terms: -1. An order that the transfer, registration, and sub – division of the land parcel No East Bukusu/South Nalondo/2684 was fraudulent and unlawful and therefore the 1st, 2nd and 3rd defendants’ titles be cancelled for the attendant fraud and consequently the said land be reverted back to the original land parcel No East Bukusu/south Nalondo/2684 in the joint names of the plaintiff and the 1st defendant.2. A permanent injunction to restrain the 1st, 2nd and 3rd defendants, their servants, agents or otherwise from interfering with the plaintiff’s possession and use and or in any manner dealing with the subject title to the detriment of the plaintiff.3. Costs4. Interest

[7]The particulars of fraud were pleaded in paragraph 11 of the plaint as follows: -11(a)1st defendant sub – divided the title No East Bukusu/South Nalondo/2684 without the knowledge of the plaintiff.11(b)The 1st defendant after sub – division of the title No East Bukusu/South Nalondo/2684 Into Land Parcels No East Bukusu/South Nalondo/6914, 6915 and 6916 sold the same to the 2nd and 3rd defendants without the knowledge of the plaintiff.

(8)Together with the plaint, the plaintiff filed her statement and that of her witnesses George Kimingich and Albert Sarabai. However, she was the only witness who testified in support of her case.

(9)In her statement dated 9th June 2016, she basically repeats the averments in her plaint. That she and the 1st defendant were at all material time the joint proprietors of the suit land. However, on 3rd June 2013, the 1st defendant secretly registered himself as the sole proprietor of the suit land. He then proceeded to sub – divide it to create land parcels No East Bukusu/South Nalondo/ 6914, 6915 and 6916. She states in her statement that the land parcel No East Bukusu/South Nalondo/6915 is registered in the names of the 1st defendant but as will become clearer later in this Judgment, none of the resultant sub – divisions is infact registered in the names of the 1st defendant. She adds that the sub – divisions and creation of those parcels of land was unlawfully and fraudulently done in a process that amounted to a criminal conspiracy. That the new titles should therefore be cancelled to revert to the original title.

[10]The plaintiff also filed a list of the following documents: -1. Certificate of Official Search for the land parcel No East Bukusu/ South Nalondo/2684. 2.Certificate of Official Search for the land parcel No East Bukusu/ South Nalondo/6914. 3.Certificate of Official Search for the land parcel No East Bukusu/ South Nalondo/6915. 4.Certificate of Official Search for the land parcel No East Bukusu/ South Nalondo/6916. 5.Green Card for the land parcel No East Bukusu/South Nalondo/2684. 6.Mutation Form.

[11]The 1st defendant filed his defence on 15th February 2019 in which he pleaded, inter alia, that the suit land was given to him by his grandfather who died in 1981 and that it was the plaintiff who advised him to sell it. He pleaded that he was the sole registered proprietor of the suit land and the plaintiff has no colour of right to stop him from selling the said land. He denied the allegations of fraud levelled against him and put the plaintiff to strict proof thereof.

[12]The 1st defendant further pleaded that the suit is frivolous, vexatious and otherwise an abuse of the process of this Court and leave would be sought to strike it out. He therefore sought it’s dismissal with costs.

[13]In his statement filed in support of his case, the 1st defendant stated that he had been given the suit land as a share of the of land given to his late father Zacharia Wanjala Sabai. That following the death of his father, the plaintiff who is his mother was inherited by his uncle but since she was not happy, she moved away from the suit land leaving it to him. And since he had no siblings, he sold it to Carolyne Chepkemei Reuben, Dickson Wanyonyi Makhanu and Emmanuel Sikuku Masinde.

[14]The 2nd defendant did not enter appearance or file defence.

[15]The 3rd defendant filed a defence and Counter – Claim.

[16]She pleaded that the plaintiff had never been registered as the proprietor of the suit land. She added further that she was an innocent purchaser of the land parcels NO East Bukusu/South Nalondo/6915 and 6916 from the 1st defendant who was the proprietor thereof. She denied the allegations of fraud adding that the plaintiff has no locus standi to institute this suit claiming land which is not registered in her names. She therefore sought the dismissal of the suit for being frivolous, vexatious and an abuse of the process of the Court.

(17)In her Counter – Claim, she sought the eviction of the plaintiff from the land parcels No East Bukusu/South Nalondo/6915 and 6916.

[18]The 3rd defendant filed her un – dated statement confirming that on 9th May 2016, she purchased the land parcel No East Bukusu/South Nalondo/ 6915 from one Dickson Wanyonyi Makhanu at a consideration of Kshs. 370,000/=. That the said Dickson Wanyonyi Makhanu had purchased it from the 1st defendant. On the same day, he had also purchased the land parcel No East Bukusu/South Nalondo/6916 from one Caroline Chepkemei Reuben at a consideration of Kshs. 900,000/=. Prior to purchasing the two parcels of land, he had conducted a search at the Bungoma Land Registry and confirmed that the vendors were the owners thereof. The said parcels of land were registered in his names and he therefore wishes the Court to evict the plaintiff therefrom.

[19]The 4th and 5th defendants filed a joint defence dated 10th November 2016 in which they confirmed that the plaintiff and the 1st defendant were jointly registered as the proprietors of the suit land. They however denied the allegations of fraud pleaded in paragraph 11 of the plaint and added that the 1st defendant was registered as proprietor of the suit land on 3rd June 2013 after all the procedures had been followed. He then applied for and obtained the necessary consent for it’s sub – division to create the land parcels No East Bukusu/South Nalondo/6914, 6915 and 6916 which are now registered in the names of the 2nd and 3rd defendants respectively. That the above registrations were done in good faith based on duly executed documents and payment of the relevant statutory fees. The 3rd and 4th defendants therefore acted within their statutory powers, mandate and discretion. They cannot be faulted. They therefore sought the dismissal of the plaintiff’s suit with costs.

[20]No witness statements were filed and in any event, no witnesses were called on behalf of the 3rd and 4th defendants. They however filed the following documents: -1. Green Card for land parcel No East Bukusu/South Nalondo /2684. 2.Green Card for land parcel No East Bukusu/South Nalondo /6914. 3.Green Card for land parcel No East Bukusu/South Nalondo /6915. 4.Green Card for land parcel No East Bukusu/South Nalondo /6916. 5.Transfer of land for East Bukusu/South Nalondo/6915. 6.Letter of Consent for land parcel No East Bukusu/South Nalondo/6915. 7.Application to Land Consent Board for land parcel No East Bukusu/South Nalondo/6915. 8.Transfer for land parcel No East Bukusu/South Nalondo/ 2684. 9.Letters of Consent for land parcel No East Bukusu/South Nalondo/2684. 10. Application to the Land Control Board for the land parcel No East Bukusu/South Nalondo/2684. 11. Letter of Consent for land parcel No East Bukusu/South Nalondo/2684. 12. Application to the Land Control Board for sub - division of land parcel No East Bukusu/south Nalondo/2684. 13. Mutation Form for land parcel No East Bukusu/South Nalondo/2684. 14. Transfer Form for land parcel No East Bukusu/South Nalondo/6916. 15. Letter of Consent for land parcel No East Bukusu/South Nalondo/6916. 16. Application to the Land Control Board for East Bukusu/South Nalondo/6916.

[21]The plaintiff filed a reply to the defence and defence to the Counter – Claim. She reiterated the contents of her plaint and pleaded that if the 3rd defendant is the registered proprietor of the land parcels No East Bukusu/South Nalondo/6916 and 6915, then the said registration was done fraudulently and ought to be cancelled. She therefore sought the dismissal of the Counter – Claim with costs and urged the Court to grant her Judgment as sought in the plaint.

[22]The plaintiff was the only witness who testified in support of her case. She adopted as her evidence the contents of her statement which I have already summarized above. She also produced as her documentary evidence, the documents listed above.

[23]Moses Wanjala the 1st defendant took to the witness stand but when led by his Counsel Mr Kituyi, he denied having recorded the witness statement filed on 15th February 2019. He also denied having signed it but confirmed that the plaintiff is his mother.

[24]The 2nd defendant neither filed any defence nor statement and did not testify.

[25]Caroline Auko Akanga the 3rd defendant also adopted as her evidence the statement summarized above. She also produced as her documentary evidence the list of documents filed herein.

[26]The 3rd and 4th defendants did not call any witnesses in support of their case.

[27]Although the parties were invited to file submissions, only Mr Masiga instructed by the firm of Areba Atancha & Company Advocates for the plaintiff and Mr Kituyi instructed by the firm of A. W. Kituyi & Company Advocates for the 3rd defendant filed their submissions.

[28]I have considered the evidence by the parties as well as the submissions by Counsel.

[29]The following are not in dispute: -1. The plaintiff and 1st defendant are a mother and son. Both were jointly registered as proprietors of the suit land on 10th December 2012 and title deed was issued in their joint names.2On 3rd June 2013, the suit land was registered in the names of the 1st defendant and on 5th June 2013 a title deed was issued in the sole names of the 1st defendant.3. That title was closed on 16th March 2016 when the suit land was sub – divided to create titles No East Bukusu/South Nalondo/6914 – 6916. 4.Land parcel No East Bukusu/South Nalondo/6914 is registered in the names of the 2nd defendant.5. Land parcels No East Bukusu/South Nalondo/6915 and 6916 are registered in the names of the 3rd defendant.

[30]I have identified the following as the issues which call for my determination in this dispute: -1. Did the 1st defendant unlawfully and fraudulently transfer the suit land in his names and subsequently in the names of the 2nd and 3rd defendants?2. If the answer to the above is yes, what is the fate of those new titles?3. In the alternative, are the 2nd and 3rd defendants infact innocent purchasers for value.4. Who bears the costs?

[31]Since the suit land was jointly registered in the names of the plaintiff and the defendant, it could only be transferred to a third party by both of them. The transfer of the suit land from the joint names of the plaintiff and the 1st defendant into the sole names of the 1st defendant was done on 3rd June 2013. That was after the enactment of the new Land Registration Act 2012. The title document does not specify whether the ownership of the suit land by the plaintiff and 1st defendant was a joint or tenancy in common. Prior to 2012, the position as was settled in the case of Mukazitoni Josephine .V. A – G2015 eKLR was that: -“When a property is registered in more than one name, in the absence of a contrary entry in the register, the property is deemed to be held in a joint tenancy and not a tenency – in – common or tenancy in entirety. A tenency in common or tenancy in entirely means that the interest of each registered owner is determinable and severable; in a joint tenancy, the interest of each owner is indeterminable, each owns all and nothing.”Section 91(2) of the Land Registration Act provides that: -91(2) “Except as otherwise provided in this Act, if two or more persons, not forming an association of persons under this Act or any other way specifies the nature and content of the rights of the persons forming that association, own land together under a right specified by this Section, they may be either joint tenants or tenants in commons.”Section 91(4) of the same Act provides that: -91(4) “If land is occupied jointly, no tenant is entitled to any separate share in the land and, consequently –(a)Dispositions may be made only by all the joint tenants.(b)–(c)Each joint tenant may transfer their interest inter vivos to all the other tenants but to no other person, and any attempt to so transfer an interest to any other person shall be void.” Emphasis mine.

[32]The plaintiff was categorical that the 1st defendant transferred the suit land to himself and subsequently to the 2nd and 3rd defendants without her consent or knowledge. This is what she said during cross – examination by Mr Kituyi:-“The 1st defendant used a short – cut to register the land in his names. He did not involve me. I did not know he had sold the land to the 2nd and 3rd defendants in this case.”And although the 1st defendant had recorded a statement suggesting that the suit land had been given to him by his late father, he later denied having recorded that statement. That left the plaintiff’s testimony un – controverted. And even if it had been controverted by any other oral evidence, the title to the suit land is clear that the plaintiff and the 1st defendant were jointly registered as proprietors of the suit land on 3rd June 2013. The 1st defendant must have seen the futility of trying to controvert that very congent documentary evidence. Among the allegations of fraud levelled against the 1st defendant in paragraph 11 of the plaint is that he sub – divided the suit land “without the knowledge of the plaintiff” after which he sold the resultant sub – divisions being land parcels No East Bukusu/South Nalondo/6914, 6915 and 6916 to the 2nd and 3rd defendants again without her knowledge. As is now clear for Section 91(4) (c) of the Land Registration, the action of the 1st defendant in transferring the suit land first to himself and later to other parties rendered that transaction “void.” The term void is defined in Black’s Law Dictionary 10thEditionas: -“Null, ineffectual, nugatory, having no legal force or binding effect; unable in law to support the purpose for which it was intended.”According to the same dictionary, fraud is defined as: -“A knowing misrepresentation or known concealment of a material fact made to induce another to act to his or her detriment.”

[33]When the 1st defendant transferred the suit land first to himself and thereafter the resultant sub – divisions to the 2nd defendant and other parties who also transferred them to the 3rd defendant, all that without the knowledge or consent of the plaintiff as a joint proprietor, what the 1st defendant did was an act which was void. It had no legal effect. Having pleaded fraud, the plaintiff was under an obligation to prove those allegations to the required standard. In the case of R. G. Patel .v. Lalji Makanj 1957 E.A 314, the former Court of Appeal for East Africa stated 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, something more than a mere balance of probabilities is required.”From the evidence, I am satisfied that the plaintiff has not only proved the allegations of fraud but further, all that transpired with respect to the suit land right from 3rd June 2013 when the 1st defendant transferred it to himself were all void transactions. In essence, the 1st defendant stole the suit land. He had nothing to pass to the 2nd and 3rd defendants either directly or otherwise. As was held in Jane Gachoki Gatheca .v. Priscilla Nyawira Gitungu & another 2008 eKLR: -“A thief acquires no right or interest which is transferable in stolen property. The transaction would be void ab initio and the property is traceable.”I have no hesitation therefore in making a finding that the allegations of fraud have been pleaded and proved as required.

[34]It is clear from my finding above that the titles to the land parcels No East Bukusu/south Nalondo/6914, 6915 and 6916 are illegal and void. No valid titles therein were passed to the 2nd and 3rd defendants. Most importantly, the transfer by the 1st defendant of the suit land from the joint names of the plaintiff and himself into his sole names was equally illegal and void. It is instructive to note that the 2nd, 3rd and 4th defendants did not lead any evidence to rebut the very congent evidence adduced by the plaintiff.

[35]The 3rd defendant’s defence and Counter – Claim is based on the plea that she obtained a good title to the land parcels No East Bukusu/South Nalondo/6915 and 6916 on the basis that she was an innocent purchaser thereof. She therefore sought an order that the plaintiff be evicted from those parcels of land. Having found that the said titles were obtained fraudulently and are therefore null and void, they do not benefit from the protection provided by Sections 24 and 25(1) of the Land Registration Act or Article 40(1) of the Constitution. Indeed, Article 40(6) of the Constitution provides that: -40(6) “The rights under this Act do not extend to any property that has been found to have been unlawfully acquired.”There can be no justification therefore, for the 3rd defendant to seek the eviction of the plaintiff from the land parcels No East Bukusu/South Nalondo/ 6915 and 6916. It would be a travesty of justice for this Court to evict the plaintiff from land whose title was stolen.

[36]With regard to the 3rd defendant’s claim that she is an innocent purchaser of the said parcels of land, that term has been defined in the case of Katende .v. Haridar & Company Ltd 2008 2 E.A 173 where the Court of Appeal in Uganda held that: -“For purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine ……... (he) must prove that: -a.he holds a Certificate of title;b.he purchased the property in good faith;c.he had no knowledge of the fraud;d.he purchased for valuable consideration;e.the vendors had apparent valid titlef.he purchased without notice of any fraud;g.he was not a party to any fraud.” Emphasis mine.That decision has been applied in this country. See for instance lawrence P. Mukiri Mungai (Attorney of Francis Muroki Mwaura) .v. A – G & others 2017 eKLR.

(37]From the 3rd defendant’s testimony, it is clear that although she purchased the two parcels of land on 9th May 2016 for over Kshs. 1. 2 m, she has never taken possession of the said parcels of land. And having spent such a colossal sum of money, it is strange that by the time she was testifying before me on 30th November 2021 some five (5) years later, she was still not in occupation and possession of the said parcels of land. This is what she said in her evidence in chief: -“I seek Judgment as per my Counter – Claim because I am un – able to utilize the land.It is the plaintiff who is utilizing it.”The onus was on the 3rd defendant to prove that she was an innocent purchaser for value without notice of any defect in the titles. It is an un – disputed fact that the plaintiff has always been in occupation and possession of the suit land. A party who buys land occupied by another should, as a matter of course, first carry out due diligence and confirm what interest the person occupying the land has in it. It is not always that a party purchases land but five (5) years later, has not even bothered to assert his rights on the same. It is even more strange that the 3rd defendant did not file any suit to evict the plaintiff from the land parcels No East Bukusu/South Nalondo/6915 and 6916. The only inevitable conclusion to be made from those facts is that the 3rd defendant did not “honestly” purchase the said parcels of land and in “good faith.” If anything, those facts demonstrate that she had “knowledge of the fraud” – Katende .v. Haridar & Company Ltd (supra). It is also curious, and this Court notes that, the 3rd defendant neither called as his witness, Dickson Wanyonyi Makhanu and Caroline Chepkemei Reuben who sold her the said parcels of land nor made any attempt to enjoin them in these proceedings. The 3rd defendant must have known about the fraudulent transactions involving the suit land and was hoping that something would happen to the plaintiff, a widow and whose only son (the 1st defendant) has since moved elsewhere, so that she could invade the said parcels of land using the illegal title deeds as a sword. The plea of innocent purchaser cannot come to her aid given those circumstances. And since her titles to the land parcels No East Bukusu/South Nalondo/6915 and 6916 were obtained fraudulently and through an illegal process, they cannot be the basis upon which her Counter – Claim can be supported. That Counter – Claim in which she seeks the eviction of the plaintiff from the land parcels No East Bukusu/ South Nalondo/6915 and 6916 can only therefore be for dismissal.

[38]On the other hand, this Court is satisfied that the plaintiff has proved that the suit land was fraudulently and illegally transferred by the 1st defendant to himself and subsequently sub – divided and the resultant sub – divisions being land parcels No East Bukusu/South Nalondo/6914, 6915 and 6916 transferred to the 2nd and 3rd defendants. Those illegal titles cannot therefore be afforded the protection of the law and their only fate lies in cancelling them.

[39]It is clear from the plaint that the plaintiff did not plead fraud on the part of the 3rd and 4th defendants. She only pleaded fraud on the part of the 1st defendant who of course denied those allegations and recanted his statement. Nonetheless, the 3rd and 4th defendants pleaded in their defence at paragraphs 9 and 10 that: -9:“The 4th and 5th defendants deny any fraud attributed to them in due performance of it’s statutory duties or playing any role in the alleged issuance or transfer of title and maintains that what 4th and 5th defendant did was in accordance with its statutory and Constitutional duties and invites strict proof thereof from the plaintiff.”10:“The 4th and 5th defendants further aver that the 1st defendant was registered as the sole owner of land parcel No E. Bukusu/S. Nalondo on 3. 6.2013 after all the necessary documents and procedures were met and title was issued on 5. 6.2013. ”

[40]As I have already stated above, the plaintiff confined her allegations of fraud on the 1st defendant. However, all the defendants denied those allegations and in my view, given the wide scope of Article 159(2) (d) of the Constitution, Section 19 of the Environment and Land Court Act as well as Section 3A of the Civil Procedure Act, no prejudice will be caused to any party in determining those allegations of fraud as against all the other defendants. As regards the 3rd and 4th defendants, they cannot plead, as they have, that the 1st defendant was procedurally registered as the sole proprietor of the suit land when it is now clear as day light that the plaintiff did not execute the transfer form nor apply for consent to transfer the suit lad to the 1st defendant nor sub – divide the same. And whereas the 2nd, 4th, and 5th defendants did not testify to refute those allegations of fraud levelled against them, the 1st defendant attended the Court but denied having recorded any statement.

[41]The plaintiff has proved to the required standard that the transfer of the suit land into the sole name of the 1st defendant was fraudulent, illegal and therefore void for all purposes. The 1st, 2nd and 3rd defendants did not therefore obtain any valid titles to the suit land or the resultant sub – divisions. The plaintiff is therefore entitled to Judgment as prayed in her plaint.

[42]On the issue of costs, the plaintiff and 1st defendant are family. The order that commands itself to me in the circumstances is not to penalize the 1st defendant with costs notwithstanding the fact that he was the main architect of the fraud and even though costs follow the event.

[43]The up – shot of all the above is that there shall be Judgment for the plaintiff against the defendants in the following terms: -1. The 3rd defendant’s Counter – Claim is dismissed with costs.2. Judgment is entered for the plaintiff against the defendants in the following terms: -(a)There is issued an order that the transfer, registration and sub – division of the land parcel No East Bukusu/South Nalondo /2684 was fraudulent and unlawful.(b)Titles to the land parcels No East Bukusu/South Nalondo /6914, 6915 and 6916 are hereby cancelled and shall revert to the original land parcel No East Bukusu/South Nalondo/2684 in the names of the plaintiff and 1st defendant.(c)An order of permanent injunction is hereby issued restraining the 2nd and 3rd defendants, their agents, servants or any persons acting through them from interfering with the plaintiff’s possession and use of the land parcel No East Bukusu/South Nalondo/2684 or in any other manner dealing with the said title.(d)The 2nd, 3rd, 4th and 5th defendants shall meet the plaintiff’s costs of the suit.

Boaz N. Olao.J U D G E21st July 2022. JUDGMENT DATED, SIGNED AND DELIVERED AT BUNGOMA BY WAY OF ELECTRONIC MAIL THIS 21ST DAY OF JULY 2022. THIS JUDGMENT WAS DUE ON 12TH JULY 2022 BUT I WAS AWAY IN NAIROBI ON OFFICIAL DUTIES. THE DELAY IS REGRETTED.Right of Appeal explained.Boaz N. Olao.J U D G E21st July 2022.