Daria Nekesa & Phaustina Apondo Oloo v Japheth Nyawade Cherssah [2015] KEHC 3978 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 48 OF 2014 (FORMERLY  HCC. 69 OF 2011)

DARIA NEKESA………………………………………………………………..……1ST PLAINTIFF

PHAUSTINA APONDO OLOO…………………..…………………………………2ND PLAINTIFF

VERSUS

JAPHETH NYAWADE CHERSSAH……..……………......…………………………….DEFENDANT

J U D G M E N T.

1.         BACKGROUND

DARIA  NEKESA and PHAUSTINA  APONDO  OLOO, hereinafter  referred to as the 1st  and 2nd Plaintiff, commenced their claim through  the plaint dated  25th July, 2011 against Japheth Nyawade  Chessah, hereinafter  referred to as the Defendant. They had  filed the suit in their capacity as administrator  of the estate of Gabriel Oloo alias Gabirel Oloo Kombo, hereinafter  referred to as the deceased, who was the first registered proprietor of the suit land, Marachi/Elukhari/528. They further  averred that the deceased died on 21st October, 1979 and on or about 2007, they discovered  that the Defendant had  fraudulently  registered the suit land in his names.

The Plaintiffs have set out the particulars of fraud under paragraph 8 of the plaint. The particulars include allegations that Defendant got the suit land registered in his names without obtaining Land Control Board consent and without  a transfer form duly signed by the deceased. The Plaintiffs therefore prays that the register of the  title to the suit property be rectified by cancelling the Defendant’s  names  and restoring the proprietorship to the deceased’s name. They also pray for costs.

The Defendant opposed the Plaintiffs’ claim through the statement  of defence  dated 1st December, 2011. The Defendant disputes  that the Plaintiffs are  administrators of the deceased estate  and avers that they have no capacity  to commence this suit. The Defendant further avers that he had bought the suit property from the deceased and that the Plaintiffs  were aware of  the transactions since 1975 and the claim is therefore time barred.  He further denied that he obtained  registration of the suit land and change of name through fraud.  The Defendant  avers that there has been other suits with the Plaintiffs’  agents and prays for the suit to be dismissed with costs.

The Plaintiffs  filed a reply to the defence dated 13th December, 2011 denying the Defendant’s claim that he had bought the suit land from the deceased.

2.         THE PLAINTIFFS EVIDENCE.

The 1st and 2nd Plaintiffs testified as PW 1 and PW 2 respectively.  They also called Tom Chepkwesi, the County Land Registrar as a witness and he testified as PW 3.  The evidence adduced show that PW 1 and PW 2  were the 1st and 2nd wives  to the  deceased who died  on 21st October, 1979. The two Plaintiffs then filed Busia Succession Cause No. 117  of 2011 and were issued with  limited grant ad litem on 29th June, 2011. It is  the Plaintiffs’ evidence  that the deceased  inherited the suit land, Marachi/Elukhari/528, from his father and got registered as proprietor  on 8th November, 1966. They further testified that the deceased had another land which he had bought as there was a problem with the suit land involving their mother –in-law.

That  upon the Plaintiff’s discovering that the Defendant had had the suit land registered in his names without their  consent  or that of their deceased  husband, they  filed this suit.

That the Plaintiffs had left the suit land and settled on the land their husband had bought during his lifetime and have not gone back  to the suit land  except  in 2008  when  they wanted their grown up children  to move there.  It was  the Plaintiffs  evidence that the deceased  did not sign the transfer  documents in favour to the Defendant. They also  denied that the deceased used the proceeds he received on selling the suit land to Defendant to  buy the land they moved  to and still resides on.

The County  Land Registrar,(PW 3), confirmed  that the  deceased was the first registered proprietor of the suit land as per  the entry of 8th November, 1966 in the register.  The witness  pointed  out that he had noted an error  on entry  number 2 of 13th October, 1975 under which  the Defendant’s name was entered on transfer.  He said  though the certified  copy of the registered  produced by PW 1 as exhibit 2 had been signed off by his office, the original  register whose copy he produced  as  exhibit 4, showed that  entry No. 2 had not been signed of and instead  had  been cancelled.  He also  testified  that he was unable to trace the letter from the chief  and consent of the Land Control Board to support  entry  number 3 for correction of name.  The  witness disputed the transfer form in the Defendant’s  list of document saying it  was incomplete and could not have come from his office.  He pointed out that the transferee in the document was Japheth Nawade Zablon Chesa while the name in  entry number 3 of the register is Japheth Nyawade Chessah. The Land Registrar added that he took entry number 3 on correction name to be meant to change the names  in entry number 1. He said  correction of names is only used  to correct names of the same person and not to introduce  a new person.

3.  THE  DEFENDANT’S EVIDENCE.

The Defendant  testified  as DW 1  and called Tomas Chesa  and Teres Cheruiyot as witnesses and they testified as DW 2 and DW 3  respectively.  The Defendant’s  evidence  is that he bought the suit land from the deceased at a purchase price of Kshs.3,400/=  and two cows in 1975. They had made a written land sale agreement and obtained the Land Control Board consent and after executing the transfer forms, the Defendant  got registered as the proprietor of the suit land on 13th November, 1975 and obtained title deed in 1991.  The Defendant said  the identity card number indicated  in the copy of the transfer form as [particulars withheld] was the number for his old identity card number but when registration was done in 1991, the number in the new generation identity  card number was used.

The Defendant  testified that 1st Plaintiff was aware  of the land sale agreement between him and the deceased. He  further testified  that the deceased used the money he paid him to buy another land to which he and 1st Plaintiff moved to.  He added that the deceased also  used part of the purchase  price to marry the 2nd Plaintiff as a second wife.  The Defendant   testified  that after buying  the suit land, he brought a surveyor  to confirm  the boundary and has used  that land since 1975.

The Defendant gave details of the court  and tribunal cases he had had with relatives  of the Plaintiffs  over the suit land.  He disclosed that the tribunal  had awarded Julius Namwenge  two acres of the suit land but he has challenged  that  decision in Busia H.C. J.R. No. 19 of 2010 which was still pending in court.

The Defendfant denied ever applying to have his names in the register of the suit land corrected.  He denied that he had been registered with the suit land through fraud and prayed  for the Plaintiff’s  suit to be dismissed  with costs.  He   testified that Julius Namwenge lives on the suit land and stated that he was ready to give him two acres  of the suit land as awarded by the tribunal.

The Defendant  confirmed that he  used the suit land until 2006 when Julius Nawenge sued him before the tribunal. He testified  that he had obtained the copy of the transfer form in the list of his documents  from the Land Registrar’s  office even though it does not bear the official stamp.  He said  he could not remember seeing the letter of consent though  he could remember  they had applied for it.

DW 2  testified that he had witnessed a sale agreement between  the deceased and  Defendant  over the suit land for a purchase  price of  two cows  which he witnessed being given to the deceased. The witness  said the agreement   later got burnt  when Defendant’s house  was set on fire.

DW 3  is a court staff and produced some court records for other court  cases  involving Defendant and other persons other than the Plaintiffs herein.

4.         ISSUES FOR DETERMIANTION.

Whether  the Plaintiffs  have capacity  to institute  this suit for the estate of Gabriel  Oloo Kombo, the deceased.

Whether the deceased was ever registered as proprietor of the suit land.

Whether  there was a land sale agreement  between the deceased and the Defendant over the suit land, and if so what  its terms were.

Whether  the  transfer of the title  to the suit land to the names of the Defendant was obtained irregularly and or fraudulently.

Whether  the Plaintiffs  are entitled  to the orders sought.

5.         ANALYSIS.

That the Plaintiffs herein are widows  of  Gabriel  Oloo Kombo, who died  on 21st October, 1979 and  have obtained  Limited grant  of letters of administration  ad litem issued on 29th June, 2011 in Busia H.C. Succession Cause No. 117 of 2011.  The copy of  the grant produced as exhibit 1 shows it is ‘’Limited  to the purposes only for filing suit.’’  The Plaintiffs therefore had capacity  to file this suit through  the plaint dated 25th July, 2011 and filed in court on 3rd October, 2011 as administrators of the deceased estate.

That the deceased was the first registered proprietor of Marachi/Elukhari/528. This is confirmed by the copies of the register produced  as exhibit 2  and 4.  The copy of the register produced as exhibit  2 was certified as a true copy by the Land Registrar on 25th May, 2011. The second  entry dated 13th November, 1975 showing that Japheth Nyawade Chessah of identity  card number [particulars withheld], was registered as proprietor through  a transfer was confirmed  by the Land Registrar,  (PW 3), to have  been erroneously inserted  as the original  register  whose copy he produced as exhibit 4 shows  that entry had not been signed for and has been cancelled out through a line cutting across.  Though  the Defendant  evidence  was that the transfer form signed by the deceased and himself  was registered  on 13th November, 1975, it is apparent the evidence  adduced by the Land Registrar  does not support his contention.

That  the Defendant defence to the Plaintiffs’ claim  was that he had bought the suit land from  the deceased in 1975 and that they had obtained  all the statutory requirements  before registering the transfer.  The Plaintiffs  have disputed this defence.   The  1st Plaintiff  had been married  to the deceased before  the year 1975 as confirmed  by both the Plaintiffs and Defendant  and has denied  knowledge of  sale of the suit land.  In the absence of the land sale agreement and Land Control Board application for consent and the letter of consent, the court is unable to satisfy itself as to the existence of a sale agreement between the deceased and Defendant. The court  is also unable to confirm the terms  of the land sale agreement, and whether the consent  of the Land Control Board was obtained  as required under section 6 and 8 of the Land Control Act Chapter 302  of the Law of Kenya.  In any case, if the deceased and Defendant had attended the Land Control Board for the consent  application as alleged, the 1st Plaintiff would have been involved, as is the practice, as she was the only spouse  of the vendor then.

That County Land Registrar’s (PW 3), testimony shows that there were no documents traced in his office to support a transfer of the suit land from the deceased to any other person. This is obviously contrary to the Defendant’s testimony that he had indeed registered the transfer form signed in his favour by deceased in 1975.  The Defendant had annexed a copy of a document headed ‘’Transfer of Land’’ in his filed list of documents dated 10th August, 2012. The document indicated the transferor as Gabriel Oloo of identity card number [particulars withheld] NBI of P.O. Box 30080, Nairobi, and the transferee as Japheth Nawade Zablon Chesa of identity card number [particulars withheld] of Post Office Box Butula. The Defendant had during cross-examination stated that he had not obtained the copy of the transfer form from the Land Office but later in re-examination said that he had obtained it from that office.   The Defendant must have wanted the court to consider the document as part of his exhibit when he annexed it to his list of documents.  When the County Land Registrar  (PW 3) was shown the transfer  document  he stated as follows;

‘’…..It cannot have come from our office as it was not certified and is    not  complete.  I would have seen the original if we had it when l was checking for the documents. The document shows the land was   being transferred to Japheth Nawade Zablon Chesa which are different (names) from the names in entry No. 3  of the register. If  this transfer was    effected , the register  would have read  Japheth  Nawade  Zablon Chesa and not Japheth Nyawade Chessah that are     now in the     register.’'

The  testimony of the Land Registrar, who  under  section 7 of the Land  Registration Act  2012, is the custodian  of parcel files that contain instruments and  documents that support subsisting entries in the land registers, shows that the transfer  document which  Defendant  claim  was the one deceased signed   to transfer the suit land to him cannot be the basis of the entry No.2 which  was later cancelled,  or entry No. 3, under  which the Defendant’s names were first introduced  in the register of the suit land.  The transferee’s names and identity card details in the copy of the transfer form alleged  to have been signed by the deceased  in 1975  are different from those entered in both entries  numbers 2 and 3 of the register. This makes the court believe the plaintiffs when they told the court that the deceased never transferred the suit land to the Defendant and that the transfer  was irregular, and fraudulent.  That the Land Registrar  (PW 3)  evidence  that he could not trace  any documents  to support  correction of names in entry number 3 was supported  by the Defendant who said that  he has never applied to correct or change his names in respect of the suit land. He stated as follows about  the entries in the suit land register;

‘’  The second registered owner  was Japheth Nyawade. The name had  been crossed out. The third  registered  owner  is Japheth Chessah  Nyawade of identity card No. [particulars withheld]. There are words ‘’C/name’’   which  l do not know what  it means.  If the Land Registrar  said l had  claimed  to be correcting  the names from Gabriel  Oloo to read Japheth  Chessah Nyawade, he  did not tell the truth  as l have never  applied to change  my names in respect of land parcel Marachi/Elukhari/528. I  got registered with  the land through the transfer  form signed by   Gabriel  Oloo and myself. I have not  obtained a copy of that transfer      form.’’

The Defendant  added the following day during re-examination;

‘’ I  got  the transfer form dated  12th September, 1975 from the Lands  office and it bears the Registrar’s  name  but not the  stamp from the Lands office.’’

The evidence  set out  above leads the court to the conclusion  that  entry  number 3 was not based on the transfer  form dated 12th September, 1975 as claimed  by the Defendant. The Land  Registrar evidence  that the copy of the transfer form dated 12th September, 1975 could not have been issued by his office  is more credible, than  the Defendant’s  claim that it came  from that office as the document  is not stamped, not certified  and there is no evidence of any payment  having been made when it was issued.

e)   That in view of the foregoing, the court agrees with the opinion  of the Land Registrar that entry  number 3, that was reflected as a corrections of names was meant to  introduce  a new registered proprietor  of the suit land in the names of  Japheth   Nyawade Chessah without  following the laid down procedure.  This was to say the  least irregular, unprocedural,  and illegal.  The  court is aware that under section 26  of the Land Registration  Act 2012,  a certificate  of title like the one held by the Defendant herein, is to be held as conclusive evidence of proprietorship The exceptions are where fraud or  misrepresentation to which the registered proprietorship is a party  is proved or where the certificate of title has been   acquired illegally, unprocedurally or through corrupt scheme. The Plaintiffs herein   have proved that the transfer of the suit land  from the deceased name to Defendant’s name was done without following the procedure required.  It was  therefore illegal.  The registration was obtained through corrupt means or    misrepresentation.

6.         That in the case  of Ephantis Muturi Kigoro –vs- Willaim  Mukui Myaga [2015]   eKLR, the Court of Appeal  was dealing with an appeal from the decision of the trial  court which had cancelled  the Appellant’s title and expunged his name from the suit property.  The trial court  had  found that the registration  of the suit property  in the  names of the person who was registered  with the title before the Appellant was   suspect and fraudulent, and that the Appellant was  at all material times aware of the   allegations of fraud. The  trial court  found that the Appellant had acquired the suit  property in circumstances which made  it inequitable for him to be allowed to retain   the land. The Court of Appeal  referred to its previous decision in the case of  Macharia Mwangi   Maina & 87 others –vs- Davidson Mwangi KagiriCivil Appeal  No. 6, 26 & 27 of     2011, where it had held;

‘’ This court is a court of Law and a court  of equity. Equity shall suffer no  wrong without a remedy; no man shall benefit  from his own wrong  doing; and equity detests unjust enrichment.  This court is bound to  deliver substantive rather than technical and procedural justice.  The   relief  orders and directions given in this judgment are aimed at delivery  of substantive justice to all parties having legal and equitable interest in  the suit property.’’

The court then  pronounced itself  on the appeal before it as follows;

‘’    The trial court did not error in issuing  the orders it did.  This is because  it would be inequitable to allow the appellant to assert  absolute   ownership of the suit land given the evidence on record and the   respondent’s beneficial interests over the same.’’

This court comes to a similar finding that the Defendant  herein must have known    that his registration as proprietor  of the suit land was through fraudulent means.  He   cannot be allowed to remain as so registered  and to assert the rights of  a registered    proprietor over the suit  land, considering  that the Plaintiffs  herein have beneficial   interests over the same land by virtue  of their being widows of the deceased and administrators of the deceased’s estate. The registration exercise could not have been   done by Japheth Nyawade Chessah  alone , but  must have received inside assistance from the personnel from the  Land Registrar’ office. The court has    noted the contents  of entry number  5 that some investigations were being carried   out  as  far   back as 2007 and hopes  that all    those involved in the corrupt and   fraudulent scheme    would be identified and appropriate legal action taken at the          conclusion of the       investigations.

7.  (a)  That having found as above, the court is satisfied  that the deceased never  signed any transfer  form  transferring  the suit land to Japheth  Nyawade Chessah of National  Identity card number  [particulars withheld].

(b)  That the court is also satisfied  that the deceased  never applied  to correct   his names from Gabriel  Oloo to Japheth  Nyawade Chessah as seems to be   suggested in entry number 3 of 30th January, 1991 as he had died about  16   years earlier.

(c)  That the registration  of the Defendant’s  names  as proprietor  of the suit land    under entry  3 was irregularly, illegally and unprocedurally  done.

8.  The Plaintiffs  have therefore  proved their case against the Defendant on a balance  of probabilities.  Judgment is therefore entered in favour of the Plaintiffs , as administrators of the estate of the  deceased, as follows;

That  the County  Land Registrar, Busia  is hereby ordered to correct the register of Marachi/Elukhari/528 by cancelling entry No. 3 and 4 and restore the name of Gabriel Oloo, now deceased, as  the registered proprietor of the said land.

The Defendant to pay the Plaintiffs costs.

It is so ordered.

S. M. KIBUNJA

JUDGE.

DATED AND DELIVERED ON 30TH  DAY OF JUNE, .2015.

IN THE PRESENCE OF;

1ST PLAINTIFF………ABSENT…………………………………………………..

2ND PLAINTIFF………PRESENT…………………………………………………

DEFENDANT……… ..ABSENT………………………………………………….

COUNSEL…  MR. MAKOKHA  FOR ONSONGO FOR DEFENDANT.

JUDGE.