Anne Moraa Michira v Peterson Manyega Michira & Wilfred Nyasende Michira [2020] KEELC 2506 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT KISII

ELC NO.1227 OF 2016

ANNE MORAA MICHIRA ....................................................PLAINTIFF

VERSUS

PETERSON   MANYEGA MICHIRA.........................1ST DEFENDANT

WILFRED NYASENDE MICHIRA ..........................2ND DEFENDANT

J U D G M E N T

Introduction and background

1. The Plaintiff instituted the present suit vide a plaint dated 3rd August 2000 which was subsequently amended on 15th August 2002. The  plaintiff’s claim was that the defendants who were her step sons had in or about June 2000 entered onto her land parcel Nyansiongo/70 “the suit property” and unlawfully purported to subdivide the same into three portions without her consent. The plaintiff prayed for judgment against the defendants jointly and severally for : -

(a) A temporary injunction restraining the defendants’ their agents and/or servants from further or in any way  howsoever interfering with the plaintiff’s parcels of land No.Nyansiongo/70 until final determination of this suit.

(b) An order of eviction evicting the defendants from the plaintiff’s land  parcel No. Nyansiongo/70.

(c) Damages for loss of user and acts of waste committed on the land.

(d) Costs of the suit.

(e) Interest on (c) and (d) above

2. The defendants filed a defence and counter claim on 4th May 2001. The defendants averred that the suit land belonged to their deceased father and that each of the three houses of their late father was entitled to a share of the suit land. The defendants further averred the transfer of the suit land to the plaintiff after the death of their deceased father was fraudulent. They asserted that they were in occupation of the suit land as of right as beneficiaries. The defendants prayed for the cancellation of the title issued in the plaintiff’s name and for the reversion of the title to the name of the deceased.

Evidence of the parties

3. The suit was part heard before Okong’o, J before whom the plaintiff (PW1) testified on 11th June 2015. Further hearing proceeded before me and the plaintiff called 2 additional witnesses, while the 1st defendant testified as DW1, the Assistant Director, Land Adjudication and Settlement based at Nyansiongo and the Land Registrar, Nyamira testified as DW2 and DW3 respectively.

4. The plaintiff in her evidence, explained that her late husband Ambrose  Michora Misaro ( “Michira”)  had 3 wives  and she  was the 3rd wife. Each of the wives had been allocated land at Mwamosioma.

5. The plaintiff stated her land was Central Kitutu Mwabundusi /424 while the other co-wives parcels of land were Central Kituru/Mwabundusi /424 and 426. She stated her husband was allocated land parcel Nyasiongo Settlement Scheme/70 which was registered in his name. The plaintiff stated that in 1999 her husband took her to the Land Control Board and consent to transfer the suit property to her was given. She stated her plot 424 was sold by her husband to enable him to repay the loan. She stated the plot was sold to Charles Agwenyi Maranga and she now had no land at Mwabundusi. She stated that the defendants started laying claim to the suit land after her husband’s death.

6. In cross examination the plaintiff said she could not remember when plot No.424 was sold or for how much it was sold. Although she stated the proceeds were used to pay off the loan for the settlement land, she did not know how much loan was then outstanding or the amount paid. The plaintiff stated that she and her late husband attended the Land Control Board meeting.  She did not however have any transfer instrument executed by her husband in her favour. The plaintiff explained that the defendants moved into the suit property following her husband’s death and have constructed their homes thereon and reside on the land.

7. PW2 Marisela Moraa Mosoima was a sister in law of the plaintiff. It was her evidence that the defendants moved into the suit property after the death of the plaintiff’s husband and they have continued to occupy and reside on the land ever since. The witness stated several of Ambrose Michira’s children from his other 2 wives reside on the suit land.

8. PW3 Nickson  Ondimu Mogeni was a neighbor of the plaintiff  and the owner of land parcel  No.72. He stated  that  on 2nd  March  1999 he found Ambrose Michira  and his wife  Anne  at  Nyansiongo  D.O’s office where a Land Control Board  meeting  was taking  place and that Michira informed  him  that he wanted to transfer his land to the plaintiff’s name. He stated further that Ambrose Muchira died later that year in December 1999. PW3 further testified that as at the time the plaintiff’s husband died the defendants had not started residing on the suit land. He stated they settled in the land later and have continued to reside thereon with their families.

9. The 1st defendant testified as DW1 and stated that the plaintiff was his step mother and was his father’s 3rd wife. He stated his mother Nyamisa Michira who was his father’s 1st wife died in 1954 and left 3 sons and 2 daughters. He stated his eldest brother died but Alex Makori who was the 2nd born was alive and that he resided on the suit property. The 1st defendant stated that he moved to the suit property. The suit property in 1965 when he was in standard five (5). He stated that when his father got land in the scheme, he and his siblings moved there. He stated his father’s 2nd wife Mocheche Michira did not move to the scheme land and she was left at the ancestral land Central Kitutu /Mwabundusi) 425. He stated the plaintiff’s house had been allocated land parcel Central Kitutu/Mwabundusi /424 while his mother’s house got land parcel CentralKitutu /Mwabundisi /426.

10. DW1 stated the scheme land was allocated in 1965 and was on loan and that at the time of his death, his father had not fully paid the loan. DW1 stated as at 1982 when he married he was residing on the suit land and todate continues to reside thereon. His brother Alex Makori equally resided on the land together with his children, his wife having died in 1986.

11. The 1st defendant stated that after his father’s death he paid the outstanding loan. He produced payment receipts (DEX6) for Kshs2, 000/=, Kshs621/=, Kshs533/= and Ksh.2, 692/65 on account  of loan  repayment  for plot No.70 Nyasiongo Settlement  Scheme. The 1st  defendant  further  stated  a discharge  of charge from the Settlement  Fund Trustees was issued  on 1st  August  2000 after full payment  was made. The Director of land adjudication issued a clearance certificate on 20th July 2000 (“DEX3”).

12. The 1st defendant further in his evidence stated that during the year 1999 his father had lost his sight and doubted that he had attended the land control board meeting he was alleged to have attended. The witness stated that the suit land had physically been subdivided on the ground into portions of 7 acres, 15 acres and 15 acres for the 1st, 2nd and 3rd houses respectively. The 1st defendant was emphatic that the suit land ought to be subdivided among the 3 houses since the land was owned by their father and belonged to the family.

13. In cross examination the witness admitted that each of their father’s wives houses were allocated land at the ancestral home. He denied the plaintiff’s house’s land parcel 424 was sold in 1982 to pay the loan for the suit land. He stated that the loan had not been repaid in 1986 when his father was registered as owner of the suit land. He maintained he had been on the suit land from 1965 and it was not true that he forcibly entered the land in 2000. He stated he had no knowledge that his father and the plaintiffs attended any land control board meeting. The 1st defendant stated the plaintiff obtained title irregularly as the charge in favour of the settlement  fund Trustees had not  been discharged.  He stated at the time the plaintiff filed suit in August 2000, his father was still  the registered owner  of the suit land.

14. DW2 Esther Ongweno  was the Assistant  Director  Land Adjudication  and Settlement, Nyansiongo . She confirmed  Msira Misera  was allocated  land parcel  Nyansiongo  Settlement  Scheme/70 on 30th June 1965  and that  the Settlement Fund Trustees took  a charge  over the  land. A change of name to Ambose  Misera Miseroa from  Misira Misera  was approved on 12th August  1986. She affirmed the Settlement Fund Trustees loan was cleared in March 2000 and a discharge and transfer document was prepared on 1st August 2000. She made  reference to the  abstract of title showing  Michira Misaro was registered on 16th January 1986 and observed  that such  a registration could not  have   been  effected before a discharge  was issued by the Settlement Fund Trustees. She stated the discharge for plot No.70 was issued on 1st August 2000 and consequently said the registration done in 1986 was a mistake.

15. In cross examination the witness stated the Settlement Fund Trustees was the initial registered owner of Land parcel No.70 and stated that the land could only be transferred after the discharge of charge. She maintained that as per the records the loan was cleared in 2000 and it was only then that the charge could be discharged.

16. DW3   Charles Mutua  was the Land Registrar Nyamira  County . He produced  a copy of the register  for land parcel Nyansiongo settlement  Scheme /70 which showed the land is presently  registered in the name of Anne Moraa Michira, the  plaintiff  herein . The register showed it was opened on 21st May 1982 and the SFT was the 1st registered owner. A charge in favor of SFT  is noted under  part C of  the Encumbrances Section registered on the  same  date. The Land Registrar noted that the 2nd entry was done on 16th January 1986 infavour of Michira Misaro . He stated there was no instrument of transfer to Misera  Misaro in  the Land Registry . He stated entries 2 and 5 were in his  opinion  irregular  as they should not have been made when the SFT loan  was still outstanding  as no discharge of the charge had been registered. He observed that as the register showed the property was still encumbered with the SFT charge which had not been discharged the entries made were irregular and should be cancelled and expunged from the register.

Submissions analysis and determination

17. The parties filed final closing submission on closure of the trial. I have reviewed the pleadings and the evidence and I have considered the submissions made by the parties. The following issues emerge for determination: -

(i)   Whether the late Ambrose Muchira Misaro was validly and lawfully registered as the owner of the suit land?

(ii)  Whether there was any valid and lawful transfer of the suit land to the plaintiff?

(iii)  Whether the plaintiff is entitled to the reliefs sought in the plaint.

(iv)  What orders/reliefs should the court make?

18. There is no dispute  that  Ambrose  Michira Misaro ( deceased)  who was the plaintiff’s  husband and father of the defendants was allocated  land parcel Nyansiongo settlement  Scheme/70 by the settlement Fund Trustees ( SFT) against  which  the SFT  registered a charge. The abstract of Title (green Card) and copy of search certificate dated 6th January 2000 show the SFT charge was registered against the property on 21st May 1982 the same day the SFT was registered as the proprietor. From the evidence it is not clear how Michara Misaro got to be registered as proprietor of the suit land on 16th January 1986.

19. The Land Registrar (DW3) in his evidence stated in their records they had no instrument of transfer that was utilized to effect that transaction. There is irrefutable evidence that the suit property was then charged to the SFT, the charge having been registered on 21st March 1982. Unless that charge was discharged no valid transfer of the land could have been effected. Although  the plaintiff stated  her husband  sold land parcel  central  Kitutu/Mwabudusi /424 which had been allocated  to her household  in 1982 to pay  the SFT loan for plot  No.70, there was no evidence adduced  to demonstrate  that any payment  was made to SFT . Infact  the evidence that  was availed  was that as at  2000 the SFT loan   had not  been cleared and that it was after the 1st  defendant had made payment that a clearance was issued and discharge of charge dated 1st Augsut  2000  issued.

20. On the basis of the evidence I am satisfied that the registration of  Michira Misaro as the owner of the suit  plot  on 16th January  1986 was not regularly  procured and was not therefore  valid . The registration could not have been properly obtained when the charge in favour of SFT was still subsisting. In the premises it is my determination that the registration of Ambrose Muchira Misaro as owner of the suit land on 16th January 1986 was not valid or lawful. The registration was of no legal effect.

21. Having  answered the first  issue in the negative  it follows that the registration  of the plaintiff as the owner  of the suit property  flowing  form the ownership  of her late husband  equally  could not be valid. If her husband was not validly registered as the owner, he could not effect a valid transfer in   favour  of the plaintiff. What I have observed notwithstanding, the transfer to the plaintiff raises several unanswered issues. Firstly, whether there was a formal transfer executed by the plaintiff’s late husband infavour of the plaintiff. None was exhibited. Secondly, whether infact the land control board issued any consent for the transaction. There was no formal letter of consent exhibited and the minutes of the Land Control Board exhibited were not signed. It is notworthy that the Land Registrar in his evidences stated they did not hold any instruments of transfer in their records. It is therefore not clear whether the deceased husband had executed a transfer in favour  of the plaintiff before he died in December 1999. In the absence of such crucial  documents, I am  not prepared  to hold the plaintiff  has discharged  her burden  of proof that indeed  her late husband  had voluntarily  transferred the suit property to her .

22. I find  the evidence  of the defendants probable  that they  were indeed residing  on portions of the suit property by the time  their father died and that  it was also quite probable  that the plaintiff  was employing unconventional  means to wrestle the  suit  property  from forming  part of her deceased  husband’s estate upon his death. I have  taken note of the fact that the  3 ancestral properties  Central  Kitutu /Mwabundusi/424, 425 and 426  were fairly  small  compared to  the suit property  and clearly  the household  of the plaintiff, if the suit property  was decreed to the  plaintiff, would have ended up with a disproportionate share of the deceased estate. The ancestral  land parcels 424,425 and 426 were 1. 6 Ha, 1. 3 Ha and 1. 0 Ha  respectively  while  plot  No.70 ( suit  property) was 10. 7 Ha which  clearly  shows the variance in size.

Conclusion and decision

23. As discussed above I am not satisfied  the transaction in favour  of the  plaintiff was  valid  and for the reason  that the transfer  to her deceased  husband was invalid, he could not effect a valid  transfer  to the  plaintiff. In the premises it is my determination that  entries Nos. 2 to 5  effected  against  the register of land parcel  Nyansiongo Settlement  Scheme/70 were  irregular  and invalid and I order  and direct  that the same  be cancelled  and expunged from the record.  The suit property should be reverted  to the  Settlement  Fund Trustees ( SFT)  to await  the  registration of the discharge  of charge dated 1st  August  2000. The  deceased to be deemed  as having died  intestate  and consequently  land parcel  Nyansiongo  Settlement /70 will form part of his assets in intestacy to be administered in accordance  with the Law  of Succession  Act Cap 160 Laws of Kenya.

24. For the reasons I have outlined and discussed above I find the plaintiff has failed to prove her case on a balance of probabilities and I order the suit dismissed. The defendants counterclaim  succeeds to the extent that I have held the transfer  of the suit property to the  plaintiff to have been invalid and the cancellation  of entries 2  to 5  made  on the  register at the  Lands office. The parties are advised to pursue succession proceedings in regard to the estate of the deceased. As I  have  taken   cognizance that this matter  involves close  family  members, I direct that each party  bears their own costs of the  suit .

25. Orders accordingly.

Judgment dated at Nakuru electronically this 20th Day of May 2020

J M MUTUNGI

JUDGE