Alice Njeri Kamau, Mercy Njeri Wanaina & Priscillah Wambui Wanaina v Attorney General, Kiambu Land Registrar & Alice Wanjiru Karanja [2020] KEELC 210 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COUR AT THIKA

ELC CASE NO 330 OF 2017

ALICE NJERI  KAMAU........................................................1ST PLAINTIFF

MERCY NJERI WANAINA..................................................2ND PLAINTIFF

PRISCILLAH WAMBUI WANAINA...................................3RD PLAINTIFF

VERSUS

THE HON.ATTORNEY GENERAL...............................1ST  DEFENDANT

KIAMBU LAND REGISTRAR........................................2ND DEFENDANT

ALICE WANJIRU KARANJA.........................................3RD DEFENDANT

JUDGMENT

By a Plaint dated  14th March  2017, the Plaintiffs herein sought for Judgment against the Defendants  for the following orders:-

a) A Declaration that the Plaintiffs’  Title No. Kabete/ Lower Kabete/696 in the name of Peter  Ndungu Wainaina  is the genuine and valid title.

b) An order  that the 2nd Defendant  be ordered  to cancel  the fraudulent  entry, the fraudulent  transfer and the  fraudulent  name Alice  Wanjiru Karanja, 3rd  Defendant  from the register   for Title No. Kabete/Lower Kabete/696forthwith.

c) A Declaration  that the fraudulent  Title Deed No. Kabete/Lower Kabete/696, in the name of  Alice Wanjiru Karanja, 3rd Defendant  was fraudulently obtained  and be  deemed  as cancelled, wherever  it is, if it surfaces up or it is surrendered  to the Kiambu  District Land Registrar, 2nd Defendant.

d) An order that the Register for Title No. Kabete /Lower Kabete/696 be rectified to reinstate   the name of the genuine registered owner Peter Ndungu Wainaina.

e) An order that the Kiambu District Land Registrar / 2nd Defendant proceeds to use the genuine Title No. Kabete/Lower Kabete/696 in the name of Peter Ndungu Wainaina for purposes  of registering  Transfer Form  RL7 and RL19  as ordered in the Certificate of Confirmation  of  Grant to the Administratix  and 6 Beneficiaries  of the Estate  of Peter Ndungu Wainaina  dated 2nd October  2015.

f) An order that the restriction  and caution registered against the title  be removed  forthwith to enable  the Land Registrar to effect the orders granted herein.

g) General Damages  for fraud against  all Defendants jointly.

h) Costs of the suit and interest.

i) Any other relief that the Honourable Court may deem just to grant.

The Plaintiffs averred that they are  the Co -Administrators of the Estate of  Peter Ndungu Wainaina (Deceased)  Vide Succession  Cause No. 2432 of 2012, in  the Matter of the Estate of Peter Ndungu Wainaina (Deceased)  who is the bonafide registered owner  of the suit property  valued at Kshs. 72 million. That the Plaintiffs are in possession of the original title deed of the suit property which they intend to subdivide into 6 equal plotsand register in the name of the 6 Beneficiaries as per the Certificate of Confirmation of Grant dated 2nd October 2015.

The Plaintiffs contended  that on 29th July 2015,  they conducted a search  at the Kiambu  District Land Registrar’s offices  and were issued with a certified  copy of  Green Card  extract dated  29th July 2015,which showed  that one Alice  Wanjiru Karanja I.D 1026415, was the current registered owner of the suit property.  That their deceased father   did not sell  the suit property to anyone during his lifetime  as he left the original  title deed in their custody. Further that the fraudulent  title in the name of the 3rd Defendant  was issued on 14th June 2006, yet their  deceased father was still alive and had  the custody  of the genuine  title deed  and was still registered under his name.

It was their contention that there  is neither any supporting  transfer of land  Form RL1  nor any  Land Control  Board Consent, I.D Card or PIN Certificate the alleged  transfer to the  3rd Defendant on record in  the Kiambu  Land Registry file on 29th July 2015.  Hence  the transfer  transaction was fraudulent  and illegal, which  has been confirmed by the  District Land Registrar. Further  that  the fraudulent  transfer, entry  and name  in the Green Card has blocked  and delayed  the registration  of transfer of  Form RL19and RL17 of the title  to its  rightful 6 joint beneficiaries  by the Co Administrators  as per the Certificate  of Confirmation of  Grant . That it is only fair and just that the Plaintiffs be granted  an order  for the cancellation of the fraudulent  entry.

They particularized joint   liability for fraud  by the Defendants  as  ; fraudulent transfer  and causing fraudulent  entry  on the suit property  and issuance of an invalid  title deed  to  the 3rd Defendant  without any genuine sale from the registered owner  and without any lawful  record  of transfer  in the register to support the transfer,  subjecting  the Plaintiffs  to dispossession, impunity, corrupt, illegal, unlawful and  fraudulent transactions on the suit property which is detrimental to their beneficial interests, persisting with the  fraudulent  transactions on the suit property, advertising the suit property for sale  to the public by the 3rd Defendant , the 3rd Defendant failing to appear before the 2nd Defendant  with original transfer documents  for verification .The Plaintiff’s  contended  that they have suffered  immense General  Damages  for fraud , imminent loss and dispossession of their beneficial rights  in the suit property.

The suit is contested   and the 1st and 2nd Defendants filed a Defence dated 3rd May 2017,and denied all the allegations made in the Plaint and averred that they were not aware of the proceedings  in the captioned Succession Cause as they were not parties . They contended that if any alleged  transfer was done,  then the same was carried out  in good faith after the submissions of the requisite  documents for registration. It was further averred that the Plaintiffs must prove that the alleged missing forms do not exist and denied colluding with anyone to defraud the Plaintiffs.

The matter was canvassed via Viva voce evidence wherein the Plaintiffs called one witness and closed their case. The  1st and 2nd Defendants did not call any  witness. Despite Service of Summons to Enter Appearance, being serve on the 3rd Defendant,  she did not Enter Appearance nor file any defence.  The matter proceeded without her participation.

PLAINTIFFS’ CASE

PW1 Alice Njeri Kamau  adopted her witness statement dated  14th March  2017,  as her evidence in Court. She produced her list of documents  as Exhibit 1 and Transfer  Form RL 19 and RL17 executed  by Co Administrators as Exhibit 2. She had the original title dated 13th June 1996, in the name of Peter Ndungu Wainaina. Sheurged the Court to allow their claim.

She further testified that she sued the Land Registrar because the Green Card had another person’s name who was a stranger to them.  That the Land Registrar is the custodian of all  the land documents  and they wondered how the land was transferred without their knowledge.

After close of Viva voce evidence, the Plaintiffs  filed written submissions which the Court has carefully read and considered  and renders itself  as follows;-

Though the Defendants were duly served, the 3rd  Defendant did not enter appearance nor defend the suit.  The 1st and 2nd Defendants however only filed a defence, but did not call any witness to advance its defence. The suit has not been defended, and that means that the Plaintiffs’ evidence remained unchallenged and uncontroverted.

However, the Court will not enter Judgment without interrogating the veracity of the evidence placed before it by the Plaintiffs.  The Plaintiffs  who have alleged still required to prove their  case on the required standard of balance of probabilities. See the case of Shaneebal Limited…Vs…County Government of Machakos (2018)eKLR, where the Court cited the case of Karuru Munyororo…..Vs….Joseph Ndumia Murage & Another, Nyeri HCCC No.95 of 1988, and held that:-

“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the Plaint and in the absence of the Defendant’s and or their Counsel to cross examine her on evidence, the Plaintiff’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the Kind of evidence that a court of law should be able to act upon’’

The Plaintiffs have  to discharge the burden of proof as exparte evidence is not automatic prove of a case on the required standard. See the case of Kenya Power & Lighting Company Limited… Vs…Nathan Karanja Gachoka & another [2016] eKLR, the Court stated:-

“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’

Having considered the available evidence, the Court finds the issue for determination is whether the Plaintiffs are  entitled to the orders sought.

It is the Plaintiffs contention that the suit property belongs to the  Estate of  Peter Ndung’u Wainaina.  To support their assertion the Plaintiffs  produced in evidence  a Copy of a title deed indicating the  said Peter Ndung’u Wainaina (Decesaed) was issued with same on 13th June 1996. Further the Plaintiffs have contended that the 2nd  Defendant fraudulently   effected the transfer of the suit property to the 3rd Defendant without any proper documentation.

The Court has seen the green card that has been produced as exhibit. The said Green Card indicates that the late Peter Ndung’u was the registered owner and as per the said Green card, and he transferred the suit property to the 3rd defendant on 14th June 2006. The Plaintiffs have denied that this transfer ever occurred and have challenged the defendants to prove that there was sale of the suit property to the 3rd Defendant. As already noted by the Court, the evidence by the Plaintiffs has not been controverted and the Court sees no justification to find that it is not truthful.

According to the  Green card, the  3rd Defendant was issued with a title deed. It is not in doubt that when the ownership of a registered proprietor is challenged, the onus is on the person to prove the root of its title. See the case of Munyu Maina..Vs..Hiram Gathiha Maina, Civil Appeal No.239 of 2009,  where the Court of Appeal held that:-

“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership.  It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from anyencumbrances including any and all interests which would not be noted in the register.”

Further in the case of Daudi Kiptugen…Vs…Commissioner of Lands & 4 Others [2015] eKLR  the Court  held that:

“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title. If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”

Therefore, it follows that the 3rd Defendant had an obligation to give evidence and establish the root of her title. Having failed to do so, the Court finds and holds that as per the  Plaintiffs testimony , the title was acquired   improperly and the Court further finds and holds that the said Certificate of title  should be cancelled.

Section 26 (1) of the Land Registration Act of 2012  provides that:-

“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all Court s 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.

The 3rd Defendant having been issued with a certificate of title that the Court has found to have been improperly issued as the consent of the registered owner was never given to transfer the  said property, the   Court further finds and holds that the 3rd defendant’s title was acquired illegally and therefore is null and void.

The  Plaintiffs have also averred that the  registration of the suit property in the name of the 3rd Defendant  was procured by fraud .‘Fraud’

has been defined in Blacks Laws Dictionary as;

“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or in some manner to cause him an injury.’’

Further Black’s Law Dictionary Ninth Edition at Page 731 also defines ‘fraud’ as:-

“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment”

To be registered as a proprietor, of a property the party must sign transfer forms from the registered owner to the purchaser. The 3rd Defendant must therefore have produced illegal documents as the Plaintiffs have averred that Peter Ndungu never signed any transfer forms and that the same amounted to misrepresentation hence Fraud.

The  Plaintiffs have sought for various orders  including cancellation of the 3rd Defendant’s  title, declaration that  the title to the suit property held by Peter Ndung’uis genuine  and rectification of the order. The Court has already found that the 3rd Defendant did not explain the root of her title and her title was fraudulently acquired  and therefore impeachable.  The Court proceed to impeach the said Certificate of title held by the 3rd   Defendant.

Section 80(1) of the Land Registration Act comes into play herein and it provides:-

“Subject to subsection (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.”

This Court is satisfied that the Certificate of title held by the 3rd Defendant was procured by fraud and this Court has impeached the same.  Therefore the said title ought to be cancelled. The Estate of Peter Ndungu Wainaina holds a title deed to the suit property and his title has not been challenged by anyone.

The Court finds and holds that the said estate has a valid title. The said estate of Peter Ndungu, being the registered owner of the suit property,  ought to be allowed to enjoy all the rights and privileges that relate to it as provided by Sections 24 and 25 of the Land Registration Act.

Further the Plaintiffs being  the legal owners of the suit property, then it is only fair that the register should be rectified to cure the fraud perpetrated by the 3rd Defendant and return the suit property to its rightfully owners who have demonstrated how he purchased or earned the same.

Consequently, the Court finds that the Plaintiffs have proved thier case on the required standard of balance of probabilities and that their prayers as sought in the Plaint are merited.

Having now carefully considered the pleadings, the evidence adduced in Court, the exhibits produced thereto and the written submissions by the Plaintiffs, the Court enters Judgment for the Plaintiffs against the Defendants jointly and severally as prayed in the Plaint dated 14th March 2017,  in terms of prayers No.(a), (b), (c), (d), (e), (f) and (h)with costs to the Plaintiffs.

It is so ordered.

Dated, signed andDelivered atThikathis17thday ofDecember 2020

L. GACHERU

JUDGE

17/12/2020

Court Assistant – Lucy

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Gitau for the Plaintiffs

No appearance for Defendants

L. GACHERU

JUDGE

17/12/2020