[2023] KECA 794 (KLR)

Waswa v Nyongesa (Civil Appeal 49 of 2018) [2023] KECA 794 (KLR) (23 June 2023) (Judgment)

Neutral citation: [2023] KECA 794 (KLR)

Republic of Kenya

In the Court of Appeal at Kisumu

Civil Appeal 49 of 2018

PO Kiage, M Ngugi & F Tuiyott, JJA

June 23, 2023

Between

Zakayo Waswa

Appellant

and

Miletus Charles Nyongesa

Respondent

(Appeal from the Judgment and Decree of the High Court of Kenya at Bungoma (Mukunya J.) dated 22nd February, 2018 in Civil Suit No. 43 of 2001 Civil Suit 43 of 2001 )

Judgment

1. JUDGMENT OF KIAGE, J.ABy this appeal the appellant, Zakayo Waswa, challenges the decision of the High Court at Bungoma, (Mukunya, J.) (RIP) which found his claim that the respondent had fraudulently acquired land parcels No. West Bukusu/North Mateka/77 measuring 2. 8 hectares and West Bukusu/North Mateka/85 measuring 0. 6 hectares (suit properties), as not established. The court also held that the cause of action having arisen in 1987, the suit was time barred and so struck it out.

2. The appellant had filed a suit claiming that he was the first registered proprietor of the suit properties which he occupied and used with his family. He averred that in or about 1972 he agreed to sell to the respondent land parcel no. West Bukusu/North Mateka/85 although the requisite land control Board consent was not obtained. Further, following negotiations between them, in or about 1973 the appellant orally agreed to exchange his land parcel no. West Bukusu/North Mateka/77, which was approximately 8 acres, with another one of similar size, that he was required to identify and get the respondent to pay for. Pursuant to that agreement, the appellant granted the respondent his parcel no. West Bukusu/North Mateka/77. Subsequently, he contended, he identified alternative land but the respondent failed to pay for it leading to the appellant’s eviction therefrom. The appellant stated that in 1975 he identified a one acre piece of land where he continues to reside and which he paid using proceeds of his daughter’s bride price.

3. The appellant added that following the respondent’s failure or refusal to honour the terms of the agreement he returned to the suit land in June 1978 and demanded that the respondent vacates it, but the latter insisted that the had already paid the full purchase price for the land. The appellant asserted that in June 1978 he was arrested by administration police officers and taken to the Kavujai Kanduyi Land Control Board where he was intimidated and forced to thumb print and sign documents he did not understand despite protestations. He later learnt that the respondent had fraudulently and illegally procured the registration of the suit properties in his name without the appellant’s consent. The particulars of fraud were pleaded as;a.Forging a land sale agreement purporting it to be a genuine agreement between the respondent and the appellant.b.Falsifying documents relating to transfer of the suit properties.c.Fraudulently obtaining Land Control Board consent for transfer of the titles of the suit properties to his names without the knowledge and consent of the appellant, after having him unlawfully arrested and confined.d.Presenting a forged application for Land Control Board consent to the relevant Board.e.Fraudulently obtaining registration and titles of the suit properties in his favour.

4. The appellant pleaded further that the respondent’s fraudulent acts came to his knowledge in 1994 upon which he caused the lands office to commence investigations culminating in a finding that the respondent did obtain the titles to the suit properties fraudulently. As a result, the respondent was prosecuted vide Bungoma SPMCC Criminal case no. 1481 of 1996. Although the respondent successfully appealed against his conviction in Bungoma HCCR Appeal No. 124 of 1997, the appellant posited, the High Court upheld the trial court’s finding that the signatures that gave rise to the transfer of the suit properties were forged and did not belong to the appellant.

5. The respondent filed an amended statement of defence claiming that the suit ought to be struck out as it was barred by the statute of limitations. He further contended that the appellant had voluntarily sold to him the suit properties, vacated them in 1972, whence the respondent had occupied the properties with the knowledge of the appellant, having also procured registration as the proprietor. The respondent denied allegations of fraud as particularised by the appellant, contending that the appellant had knowledge of the alleged fraudulent acts as far back as the year 1987, when the parties were jointly sued by the appellant’s children vide Civil Suit No. 192 of 1987, for a declaration that they held the suit properties in trust for the appellant’s children.

6. The case was heard vide viva voce evidence upon which the learned Judge delivered the impugned judgment, finding in favour of the respondent.

7. Aggrieved by that decision, the appellant lodged this appeal complaining that the learned Judge erred in various respects which can be summarized thus;a.Failing to consider the abundant evidence on record establishing that the respondent obtained the suit properties by fraud and forgeries.b.Failing to honor his part of the bargain thus rendering the entire Sale agreement null and void.c.Not being keen to the fact that transfer forms were signed and transacted in one day, a fact that pointed to collusion and circumvention of the law.d.Striking out the appellant’s suit without regard to the right to be heard without due regard to technicalities.e.Finding that the suit was barred by the limitation of actions Act.f.Being biased in his analysis and judgment.g.Not believing and affirming an experts evidence.

8. The appellant thus prayed that the appeal be allowed, the orders of the High Court be set aside and substituted with orders as prayed in the plaint. He also sought costs, both at the High Court and this Court.

9. During the hearing, the appellant was represented by learned counsel, Mr. C. Akhaabi who choose to highlight the written submissions that he had filed earlier. There were neither submissions nor representation for the respondent even though his counsel had been served with the notice for hearing.

10. Mr. Akhaabi began by asserting that the pleadings and evidence on record established fraud, especially the criminal proceedings that were instituted against the respondent for forgery of the transfer documents for the suit properties. Further evidence that established fraud included; the evidence of Daniel Muhanji (PW3), the Land Registrar, who testified in the criminal proceedings that the alleged transfers for the suit properties were not registered as they were not signed, stamp duty in respect of the properties was not assessed and paid and that the title deed issued on 27th July, 1987 for parcel no. West Bukusu/North Mateka/77 was irregular. Moreover, Mackenzie Mweue (PW5), a document examiner attached to CID headquarters in Nairobi stated that upon analysing the documents, he established that the signatures used to transfer the suit properties did not belong to the appellant.

11. As to whether the suit was time barred, Mr. Akhaabi faulted the learned judge for computing time using the year when the appellant’s children sued him claiming that he held the suit properties in trust for them, that is 1987. Counsel asserted that it was trite law that limitation of time in cases of fraud starts running when fraud is discovered and for the appellant, fraud was discovered in 1995 when, upon following up with the Lands Registrar on the circumstances under which the suit properties were transferred, the Land Registrar recommended prosecution of the respondent for fraud. Consequently, counsel argued, time started running in 1995 when fraud was discovered and the suit having been filed in 2001, that was a period of 6 years. In the circumstances, he contended that the limitation period had not been exhausted and the learned Judge made an error in striking out the suit.

12. Mr. Akhaabi faulted the learned Judge for ignoring crucial evidence tendered by the appellant and for failing to interrogate; whether the respondent had paid valuable consideration to the appellant for the transfer of the suit properties, whether the documents used to transfer the properties were valid, the import of the criminal proceedings and the findings made in respect of the challenged transfer documents. In the end c allow the appeal.

13. I have given those submissions careful consideration. I have also perused the entire record consistent with our duty as a first appellate court to re-evaluate and reassess the evidence afresh with a view to making our own inferences of fact and arriving at independent conclusions. We proceed by way of re-hearing but with the caution that unlike the learned Judge, we have not had the advantage of observing the witnesses in live testimony. I accordingly make due allowance for that differential. See Rule 31 of the Court of Appeal Rules 2022; Selle V Associated Motor Boat Co. Ltd &others [1969].

14. From my analysis of the case, it seems to me that the issues that arise for our consideration are twofold, namely;a.Whether the appellant’s suit was time barred.b.Whether the suit properties were fraudulently transferred to the respondent.

15. On whether the suit was time barred, it was contended by the respondent that the appellant knew of the alleged fraudulent acts as far back as the year 1987 and hence he should have instituted the suit earlier than the year 2001. In effect the respondent insisted that due to that delay, the suit was barred under the Limitation of Actions Act, Chapter 22 of the Laws of Kenya and it should be struck out. The appellant resisted that argument, asserting that in 1995, a meeting was convened at the suit land through the Chief Land Registrar’s office in Nairobi and the Land Registrar’s office in Bungoma resulting in the dispute being referred to the Director of Criminal investigations to determine the circumstances under which the suit properties had been transferred. The investigations, the appellant contended, established that the transfer documents of the suit properties had been forged. To the appellant therefore, time started running from 1995, and his suit was not time barred. The learned Judge in analysing this issue, agreed with the respondent stating;If he thought the transfer was fraudulent, the cause of action then arose on or before August 1987. He had twelve years from then to file suit. The twelve years elapsed on or about August 30th 1999. This suit was not filed until 16th March 2001. The suit was clearly filed out of time.”

16. In the end the learned Judge struck out the suit for having been filed out of time. With respect to the learned, my analysis of the law and the evidence on record yields a different finding. The relevant provisions of the Limitation of Actions Act are as restated herein. Section 7 provides;Actions to recover landAn action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person”.

17. Section 26 states;26. Extension of limitation period in case of fraud or mistake Where, in the case of an action for which a period of limitation is prescribed, either—a.the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; orb.the right of action is concealed by the fraud of any such person as aforesaid; or(c)...the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it”.

18. A perusal of the record exhibits a letter from the Assistant Chief’s Office, Mateka dated 12th April, 1995 addressed to the District Lands Office, Bungoma concerning a meeting held between the parties herein with respect to ownership of the suit properties. The letter indicates that during the meeting, the appellant admitted having sold parcel no. West Bukusu/North Mateka/85 to the respondent but not parcel no. West Bukusu/North Mateka/77. The letter further reveals that contrary to the appellant’s contestations, at the same meeting the respondent produced a sale agreement and two title deeds evincing that the respondent was the owner of the suit properties. The Assistant Chief concludes by asking the Lands Office to undertake investigations in order to establish how the respondent acquired parcel no. West Bukusu/North Mateka/77.

19. It would seem therefore that the appellant’s averment in his statement that he only became aware that he had divested of ownership of the suit properties in 1995 is true on the evidence. However, that discovery was in relation to parcel no. West Bukusu/North Mateka/77 only, since he acknowledged having sold parcel no. West Bukusu/North Mateka/85 to the respondent.

20. The record further shows that a complaint was made to the Chief Land Registrar, Nairobi by the appellant through his son, on 29th August, the year being ineligible. Through the letter, the appellant asks the Chief Land Registrar to check how the suit properties changed ownership from the appellant to the respondent without the relevant approvals. Francis Kyalo (PW4), the investigating officer from the Directorate of Criminal Investigations (CID) in the criminal proceedings also testified that sometime in May 1995, he received a complaint from the appellant’s son claiming that the suit properties had been fraudulently transferred to the respondent. The son also gave him a letter from the Lands Office Nairobi, addressed to CID Bungoma asking them to investigate the matter. Mackenzie Mweue (PW5), the document examiner attached to CID headquarters gave testimony to the effect that on 9th January, 1997 he received a document, two known signatures and standard signatures which he was required to examine and compare with those in the document, and the result was that there was no agreement between the signatures.

21. The foregoing evidence compellingly shows that investigations into the alleged fraud began in the year 1995 and in the year 1997 the fraud was ascertained by an expert, a document examiner. The apparent fraud having been established in the year 1997, it is evident and I so find, that time started running the same year in view of section 26 of the Limitation of Actions Act. The 12-year limitation period for a suit for recovery of land pursuant to section 7 of the Limitation of Actions Act had not therefore lapsed when the appellant instituted the suit in 2001. This would be so whether time were reckoned from 1995 at first discovery of the illegal transfer, or 1997 when the fraud was conclusively established. It is, to my mind, inconceivable that time would be held against the appellant respecting a period when he was unaware that he had been dispossessed of the land. Consequently, the learned Judge fell into error by holding that the suit was statute barred and striking it out.

22. Turning to the question whether the suit properties were fraudulently transferred, before delving into this question, I note that even though the appellant alleges fraud with respect to both suit properties, by his own testimony in court he disclosed having sold parcel no. West Bukusu/North Mateka/85 to the respondent. The appellant stated;

23. On 18. 9.69 I was sick and could not get any money for treatment, and I had a shamba, I sold the shamba two acres to Melitus Nyongesa. He is the accused in the dock. He gave me Kshs. 300. We recorded on a piece of paper and he gave me Ksh…..(ineligible). Piece of paper marked MFI (1). It was No. W.Bukusu/N. Mateka/85. It got the number later, we both signed MFI (1). He added me Kshs. 100 and later a cow with its calf.”

24. Moreover, the evidence of Daniel Muhanji (PW3), the Land Registrar, singled out parcel no. West Bukusu/North Mateka/77 only as being irregular. I am therefore of the view that any alleged fraud relates to parcel no. West Bukusu/North Mateka/77, whose transfer remained questionable.

25. The appellant maintained that the evidence on record established fraud. The respondent on the other hand contested this assertion, contending that he had been cleared of the fraud allegations on appeal in Bungoma HCCR Appeal No. 124 of 1997. The learned Judge in evaluating the matter concluded that no fraud had been established and/or proved. It is noteworthy that the standard of proof for a claim of fraud is higher than that required in civil cases, that is upon a balance of probabilities but not beyond reasonable doubt as is the case in criminal cases. This position has been restated by this Court in many cases. It was stated by Karanja, Warsame & Gatembu Kairu, JJ.A in Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR, thus;

26. It is trite law that any allegations of fraud must be pleaded and strictly proved. See Ndolo v Ndolo (2008) 1 KLR (G&F) 742 wherein the Court stated that:‘...We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases...’” (Emphasis mine)

27. It is critical to note that criminal proceedings were instituted against the respondent in Bungoma SPMCC Criminal case no. 1481 of 1996 for forgery of a signature on a letter of agreement for the sale of the suit properties, and although on appeal in Bungoma HCCR Appeal No. 124 of 1997, the conviction of the respondent on that charge was quashed and he was acquitted, the finding by the court below to the effect that the signature was forged was not disturbed by the learned Judge. Indeed, the evidence of the document examiner, PW5, was clear that the appellant’s specimen signatures and the questioned signatures did not come from the same hand.

28. Evidently and undeniably, fraud was established and whereas I am minded that the respondent was cleared of the forgery allegations on appeal, I cannot ignore the fact that he is the one who used the forged documents and benefited from the transfer effected by their use. Therein lay the fraud considering its wide definition in Black’s Law Dictionary, Tenth Edition, page 775, which includes;1. A knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment.…2. A reckless misrepresentation made without justified belief in its truth to induce another person to act.…4. Unconscionable dealing, especially in contract law, the unfair use of the power arising out of the parties’ relative positions and resulting in unconscionable bargain.”

29. Moreover, to my mind, the dealings between the parties brings the case within, and triggers the definition of fraud in the Limitation of Actions Act, as including; conduct which, having regard to some special relationship between the parties concerned, is an unconscionable thing for the one to do towards the other.”

30. Indeed, the fact that the respondent obtained title to parcel no. West Bukusu/North Mateka/77, through a signature that was verified to have been forged, is certainly an unconscionable thing for him to have done. He surely was privy to the acquisition of property through a fraudulent process. He thus cannot be said to have acquired a valid title over the said property. That transaction was null and void ab initio and anything that is a product of a process that is a nullity is bad in law. I would cite with approval Lord Denning’s oft-cited dictum in Benjamin Leonard Macfoy v United Africa Company Limited (UK)[1962] AC 152;If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”See also Julius Ochieng Oloo & another v Lilian Wanjiku Gitonga [2019] eKLR.

31. In the end my considered view of the appeal is that it should partly succeed. I would therefore set aside the learned Judge’s orders and substitute therefor these orders;a.A declaration that the registration of the respondent as proprietor of land parcel number West Bukusu/North Mateka/77 was fraudulently done and unlawfully obtained and the appellant is still the rightful and lawful owner of the same.b.The respondent does transfer parcel number West Bukusu/North Mateka/77 to the appellant, failing which the Deputy Registrar of the Court be authorised and empowered to execute all documents necessary to transfer and restore the said parcel to the appellant.c.The appellant shall have the costs of this appeal and of the suit at the High Court.As Mumbi Ngugi and Tuiyott, JJ.A agree, it is so ordered.

JUDGMENT OF MUMBI NGUGI JAI have had the benefit of reading in draft, the judgment of my brother Kiage, JA. I entirely agree with the reasoning and conclusion arrived thereat and have nothing useful to add.

JUDGEMENT OF TUIYOTT, JAI have had the advantage of reading in draft the judgment of Kiage, JA, with which I am in full agreement and have nothing useful to add.

DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JUNE, 2023. P. O. KIAGE……………………………JUDGE OF APPEALMUMBI NGUGI……………………………JUDGE OF APPEALF. TUIYOTT……………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR