Esther Kabugi Njuguna v Martha Chebet, Land Registrar Nakuru, Attonery General of Kenya & Postal Corporaton of Kenya [2020] KEELC 1318 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO. 249 OF 2012

ESTHER KABUGI NJUGUNA........................................PLAINTIFF

VERSUS

MARTHA CHEBET................................................1ST DEFENDANT

LAND REGISTRAR NAKURU............................2ND DEFENDANT

THE ATTONERY GENERAL OF KENYA.........3RD DEFENDANT

POSTAL CORPORATON OF KENYA................4TH DEFENDANT

J U D G M E N T

1. The  initial plaintiff  Francis  Kabugi Njuguna ( who has since died) filed the  present  suit on 13th August  2009 vide  a plaint  of even date. Upon his death, the plaintiff was substituted by his wife Esther  Kabugi Njuguna. By the plaint which was  amended on 31st October 2012 and further amended on 11th April 2018 the plaintiff stated that he entered into a sale  agreement  with the 1st defendant  dated 3rd March 1999 where he agreed to sell to the 1st  defendant land parcelNakuru/Ol’ongai  Phase 11/244for the consideration of Kshs.600,000/=. The plaintiff however averred that the 1st defendant failed to honour the terms of the agreement and specifically did not pay the consideration as provided but fraudulently and in collusion with the 2nd defendant   caused the plaintiff’s land parcel Nakuru/Ol’ongai Phase 11/244 to be transferred to her name.

2. The plaintiff prays for judgment against the defendants severally for:-

(a) A permanent injunction restraining the 1st Defendant by herself, her agents/servants and all those persons allied to the 1st Defendant from transferring, entering, remaining, taking up, repossessing, selling, leasing out and/or interfering with the plaintiff’s quiet use, enjoyment, possession and occupation of the suit  property known  as parcel No.Nakuru/Ol’ongai Phase 11/244.

(b) A Declaration that parcel No.Nakuru/Ol’ongai Phase 11/244 measuring 2. 1 Ha belongs to the plaintiff and the 1st Defendant holds title fraudulently.

(c) An order for rectification of the Register and Cancellation of Title Deed issued to the 1st Defendant for land Parcel Nakuru/Ol’ongai Phase11/244 and issuance of title for the said land to the Plaintiff free from any charges, restrictions, inhibitions and any other encumbrances whatsoever.

(d) Costs and interests at court rates.

(e)  Any other or further relief that this honourable court may deem fit to grant.

3. The 1st defendant filed a statement of defence dated 3rd May  2018 which she subsequently amended to introduce a counterclaim  dated 28th October  2018 though  the same is shown  to have been filed  on 25th October  2018. By the amended  defence and counterclaim  the 1st defendant averred  that she  was the legally and validly  registered  owner  of  land parcel Nakuru /Olongai Phase 11/244 after acquisition of the same  for valuable consideration. She denied the allegations of fraud attributed to her by the plaintiff and stated the plaintiff was fully paid the purchase price in terms of the sale agreement. The 1st defendant averred that it  was the plaintiff who had refused  to yield vacant possession of the suit  property. By the counterclaim the 1st defendant inter alia prayed that:-

a. The Plaintiff’s suit against the 1st Defendant be dismissed with costs.

b. A declaration that parcel  No.Nakuru/Ol’ongai Phase 11/244 measuring  2. 1 Ha belongs to the 1st  Defendant and she legally holds  the title.

c. An order for payment of rent by the Plaintiff to the 1st  Defendant as from May 1999.

d. An order for compensation by the plaintiff to the 1st  Defendant for improper unfair and misuse of the land.

e. A permanent  injunction restraining the Plaintiff by herself,  her agents,  servants and all those persons allied  to her from transferring with the 1st defendant’s quite use, enjoyment, possession and/or occupation of the suit property  known  as parcel of land no. Nakuru/Ol’ongai Phase11/244  measuring 2. 1 Ha.

f. Costs of this suit together  with interest thereon  for such period and as  such  rate as this Hounable court may deem appropriate.

g. Any  other relief that the honourable court may deem just and fit  to grant.

4. The 2nd defendant, Land Registrar Nakuru  filed a statement of defence through the Attorney General. He denied the particulars of fraud alleged against him and averred he effected the transfer of the suit land in the normal cause of his duties and in exercise  of the mandate conferred upon the office by statute.

5. The 4th Defendant, the Postal Corporation of Kenya were enjoined to the suit on the application  of the  plaintiff as they  held  a charge over the property. Though the 4th Defendant  appeared  and appointed counsel, they neither  filed a defence  nor participate at the trial. During the trial the plaintiff Esther Kabugi Njuguna, testified as the sole witness in support of the plaintiff’s  case. Likewise  the 1st and the 3rd  defendant testified  as the sole witnesses  in support  of their  respective  cases.

EVIDENCE BY THE  PARTIES

6. The plaintiff testified that she was the legal administrator of her late husband’s estate and was substituted to proceed with present suit on behalf of her deceased husbands’ estate. She placed reliance on her  witness  statement made on  11th April 2018 and the bundle of documents annexed to the further amended plaint which were collectively admitted in evidence as listed  as “ PEX1 to 10”. It was the plaintiff’s evidence that  her late husband  had entered  into a sale agreement to sell  land parcel Nakuru/Ol’ongai Phase 11/244 to the 1st defendant  for Kshs.600,000/= . She stated the 1st defendant  never paid the amount but she somehow  got the land transferred to her name. The plaintiff stated her husband never attended the Land Control Board and never signed a transfer in favour  of the 1st defendant .

7. The plaintiff  stated two of her children  who were  dead were buried  on this land and that also her husband who died in 2010 was buried on the same land. The witness explained that she had a 3 bedroomed residential permanent  house on the land. She  stated her late husband  never pursued the completion of the sale  agreement dated 3rd March 1999 and explained that her husband  had been  imprisoned for 5 years from 2000 until  2005 when he was released . The witness further  stated  that the 1st defendant  had never occupied and/or  gone to the land even though  as per the records, the title was transferred to her name  on 6th April 1999.

8. In cross examination the witness admitted her husband had informed her that he wanted to sell the land and she accompanied him to the lawyer’s office ( Chesire advocate) who prepared  the sale agreement. She stated her husband left the land title with the advocate who was to proceed with the transaction after the 1st defendant paid the purchase price. She maintained no money was paid to her husband towards the purchase price by the 1st defendant and/or Chesire advocate. She stated the 1st defendant was to be financed  in the purchase transaction by the 4th defendant who were her employers. The witness  explained  that in 2006 her and her husband bought  one (1) acre of land in Kinangop after he left  prison from sale of proceeds of a plot they sold at  Pipeline  estate.

9. The 1st defendant Martha Chebet testified as DW1 and she relied on her witness statement and the bundle of documents filed by her. She testified that she used to work with the Postal Corporation of Kenya and it was her evidence that her employer financed her to purchase the suit property through a mortgage/charge. She stated she identified the property and approached the plaintiff to sell the land to her and that following agreement they had a sale agreement prepared by Chesire advocate of Chesire & Co. Advocates. The 1st defendant stated that although the purchase price payable to the plaintiff was Kshs.600,000/=,the agreement for sale she submitted to postal  corporation indicated the consideration was Kshs.1,000,000/=. It was the 1st defendant’s evidence that the Postal Corporation processed the mortgage and released a cheque for Kshs.800,000/= to Chesire & Co. Advocates after the mortgage  transaction was  completed. She affirmed a charge was registered in favour of the Postal Corporation before the money was released to the advocates.

10. Under cross examination by Mr. Kanyi advocate for the plaintiff, the 1st defendant affirmed the sale agreement was made on 3rd March 1999 at the law firm of Chesire & Co.  Advocates who the 1st defendant confirmed were in the panel  of advocates for  Kenya Post and Telecommunications  and therefore  the Postal Corporation had no problem with the firm  acting for her. The 1st defendant stated she was entitled to a loan of Kshs.800,000/=  and that she submitted to  the corporation  a sale  agreement for Kshs 1,000,000/=. She confirmed the title was retained by Mr. Chesire  since he was to prepare  the charge  for the Postal Corporation. She further affirmed as per the sale agreement the purchase price was to be paid within 30 days from the date the agreement was executed but stated there was a delay in completion.

11. The 1st defendant admitted the land title was transferred to her in April 1999 before the purchase price was paid. She  stated the charge was prepared in February 2000 and  that  Chesire  advocate  was paid Kshs. 800,000/= vide a  cheque  in March  2000. She stated Postal Corporation could not have paid the money to an individual  and that explained why the money was released  to the lawyer.

12. The 1st defendant further stated the plaintiff and his family  were residing  on the suit land at the time  of purchase  but left the land after she purchased the same. The plaintiff however  came back to the land in 2002 and she allowed them to reside on the land since she was not staying on the land. She stated the plaintiff  had purchased land in Kinangop but opted to come back as it was too cold there.

13. The land Registrar  testified  as DW2 and it was his evidence that land parcel Nakuru/Ol’rongai Phase II/244 was first registered in the name of Francis Kabugi  Njuguna  on 4th August  1993. A charge over the land in favour  of Barclays Bank of Kenya Ltd  registered on 29th December  1994 was  discharged on 13th April 1999. The Land Registrar further testified that the land was transferred to Martha Chebet the 1st defendant on 6th April 1999. He stated there was an application made to the Land Control Board for transfer and a letter of consent to transfer was issued on 18th March 1999. The land was subsequently charged to Postal Corporation to secure  Kshs.800,000/= on 1st  February 2000. The Land  Registrar  stated  that  on the basis  of the documents presented at the Lands office, the transfer in favour  of the 1st defendant was validly effected.

14. In cross examination the Land  Registrar stated there was no copy of the signed  transfer  amongst  the documents they held and he could therefore  not affirm whether  the transfer  was presented  for registration. He  further noted  the land board application  form  did not have any endorsement  of the Land Control  Board  and neither  were any minutes of the Land Control  Board  availed . He stated there was no copy of the letter of consent of the Land Board for the charge in favour  of postal Corporation.

15. The Land Registrar however explained that once they have a letter of consent from the land control board they treat the same as authentic and proceed to effectuate  the transaction in support  of which  the consent  was given.

16. After close of the trial the plaintiff and the 1st defendant filed their  final  written  submissions. The 2nd and 3rd defendants elected  not to file any final submissions. The 4th defendant did not  participate  in  the hearing and filed no submissions. After reviewing  the pleadings, the evidenced and  having  considered the submissions filed by the parties, the following  issues arise for determination.

1. Whether  there was a valid  agreement of sale between  Francis Kabugi Njuguna ( the  original plaintiff)  and the  1st defendant, and if so, whether  the terms  of the agreement  were  fulfilled by the 1st defendant?

2. Whether the transfer of the suit property from the plaintiff to the 1st defendant was validly obtained/procured?

3. Whether  the plaintiff is entitled  to the reliefs sought in the plaint  or it is the  1st defendant  who is entitled to the  reliefs sought in the counterclaim ?

17. The issues in this matter  revolve around an agreement of sale of the suit property dated  3rd March 1999 entered into between Francis  Kabugi Njuguna ( deceased as  the vendor  and the  1st defendant as the purchaser. According to the 1st defendant although the sale was for Kshs.600,000/=  and she and the deceased signed an agreement  for this amount, she  testified   she  submitted to her employer, the 4th defendant an agreement  showing she was purchasing  the land for Kshs1,000,000/=. No evidence was led to show the deceased signed two agreements,  one for Kshs600,000/= and the other for  Kshs1,000,000/= . The pleadings and the evidence by the plaintiff only acknowledged the agreement where the consideration was Kshs600,000/= . This was the agreement that the plaintiff tendered in evidence. The sale agreement  for the consideration of Kshs.1,000,000/= was not  proved to have been executed  by the deceased and in my view  must have been  manufactured  by the  1st defendant to meet her own designs. I have examined the sale agreement  produced in evidence by the plaintiff indicating  the consideration of Ksh600,000/= and the sale agreement  exhibited  by the 1st defendant indicating the consideration of Kshs.1,000,000/= and  it is apparent  the first  page  of the sale  agreement  for the consideration of Kshs.1,000,000/= was substituted while  the executed  page two of the sale agreement  signed by the deceased  was retained. The format and the font of the first  page of the  sale agreement where the consideration is shown as Kshsh1,000,000/=  is to  naked eye  different from that of the first page of the agreement acknowledged  by the plaintiff  where the consideration was Kshs.600,000/=. If indeed the two agreement were made at the same time there would have been no such variations.

18. On the issue however whether the plaintiff  and the 1st defendant had a valid  sale agreement and  whether  the 1st defendant fulfilled the terms of that agreement, there is undisputed evidence  that   the deceased plaintiff entered into the sale agreement  dated 3rd March  1999 to sell the suit property  to the 1st defendant for the consideration of Kshs.600,000/= . The wife of the deceased who was substituted as the plaintiff following  the death of her  husband  acknowledged  this agreement . The 1st  defendant  admits the  sale agreement. Accordingly the court  holds and finds the  plaintiff and   the 1st  defendant  had entered  into a valid sale agreement dated 3rd March 1999 for the purchase  by the 1st defendant of the plaintiff’s land parcel Nakuru/Ol’ongai  phase 11/244 for the consideration of Kshs.600,000/=.

19. The sale agreement was quite brief and carried 7 clauses which I reproduce hereunder for ease of reference:-

1. That the vendor  is the  registered owner of  all that pieces of land known as Nakuru/Ol’ongai Phase 11/244 comprising  of 2. 1 hectares with permanent  structure self-contained house 3 bedroomed or thereabouts.

2. That the vendor hereby agrees with the purchaser for the sale  to the purchaser  of all his rights and title over the  said plot.

3. The total purchasing price is Kenya shillings Six hundred thousand (Kshs.600,000)  to be paid in full to the vendor by the purchaser’s employers M/s Kenya Posts and Telecommunications within  a month’s time.

4.  The purchaser  has  seen the plot being sold to her and she is satisfied  with its location and the state of the property.

5. The vendor  undertakes to sign  all relevant  documents to facilitate  successful  transfer  of the said property  to the purchaser.

6.  That purchaser take possession of the said plot  and developments therein on full payment  of the purchase  price.

7. The purchaser  shall be responsible for consent, transfer  and agreement expenses.

20. Under clause 3 of the sale agreement the purchase price of Kshs. 600,000/= was to be paid  in full to the vendor  within  a month’s time (30 days) from the date of the  agreement . There was no provision  that the property  the subject  of the sale was to be offered  as security  by the 1st defendant to raise the purchase price. The 1st defendant was to take  possession of the land upon full payment of the purchase price. The sale  agreement  did not provide that  Chesire & Company  advocates  were to act for either  of the parties  though  they drew  the agreement  and one Mr. C O  Chesire advocate witnessed the signatures  of both parties. While  the drafting  of the sale  agreement  may  have  left a lot to be desired the court cannot  read into the agreement  that which was not provided and will  to the extent  that it was explicit   on the  terms interpret  the same  as presented .

21. The plaintiff both in the pleadings and in the evidence stated the 1st defendant did not honour  the terms of the agreement  and specifically did not pay the purchase  price as agreed or at all. The plaintiff denied signing any transfer in favour of the  1st defendant in regard to the suit  property . The plaintiff contended    that the transfer of the land effected to the 1st defendant on  6th April 1999 could only  have been fraudulently procured since  the purchase  price had not been paid as  per  the agreement and neither had  he signed the transfer. The plaintiff also denied  attending the land control board for purposes of obtaining the consent of the board for the transfer. The 1st defendant  in her  evidence stated that she and the deceased  attended the land control  board and obtained consent. She  stated the plaintiff  was paid the purchase  price through the advocates office, M/s Chesire & Company Advocates but she  produced  no evidence  to demonstrate  that indeed the plaintiff was paid  the money  by the advocates. All the 1st  defendant pointed to was cheque for Ksh.800,000/=  that was made out by the Postal  Corporation  in favor of Chesire & Company  Advocates exhibited  in the 1st  defendant’s bundle of documents. There was no acknowledgement by the plaintiff of receipt of the money from the said Advocates. The defendant equally did not explain how or when the money was disbursed by the advocates. The amount paid to the advocates was ksh.800,000/= yet the amount payable to the plaintiff as purchase price was Kshsh.600,000/= . How and when was the money disbursed  by the advocate, if at all ?

22. The cheque for Kshs.800, 000/= was remitted to Chesire & Co. Advocates in March 2000 yet the 1st defendant had caused the land to be transferred into her name in April 1999. The plaintiff insisted he never signed a transfer of the land to the 1st defendant and/or indeed any land board forms. Although the 1st defendant exhibited an application to the land board that had allegedly been signed by the deceased  plaintiff and a letter  of consent  form there was no copy  of the signed and registered transfer  form. The Land Registrar who testified  as DW2 stated they did not  have any copy of the registered transfer in their records. Considering  the plaintiff   had pleaded he  had not been paid the purchase price and had not signed the transfer and/or the land board application  forms, it  was incumbent on the  1st defendant to adduce evidence of payment of the  purchase  price and execution  of the transfer  and land  board application forms. As regards payment, evidence  of disbursement  of the purchase  price from M/s  Chesire & Company  Advocates to the  plaintiff  was crucial. It  was not  clear why  Chesire advocate could not be availed as a witness. As the  plaintiff  had denied attending  the land  board with  the 1st  defendant  the  minutes  of the appropriate meeting  of the land board where  the application was  considered would have been essential . No such minutes were availed in evidence.

23. The burden to prove payment  of the purchase  price rested on the 1st  defendant. In the instant matter there is no dispute that the transfer of the suit  property  to the 1st defendant was effected before the purchase  price was paid to the plaintiff. The transfer could only  be valid  if  the purchase price could  be shown  to have been paid. If the purchase  price was not paid, the transfer would be ineffectual as it would have been effected without  any consideration. Given  that the transfer  of the land  was effected to the 1st defendant before she had paid the purchase  price to the plaintiff, and the plaintiff  contends the transfer  was carried out behind his back it was imperative for the 1st defendant to prove that the plaintiff  was actually  paid the purchase  price. I am not satisfied the 1st defendant proved that the purchase price was paid to the plaintiff .

24. Section  107, 108 and 109 of the Evidence Act, Cap 80 Cap  of the Laws of Kenya make provision as to who bears the burden  of proof and provide as follows:-

107. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. Incidence of burden

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109 . Proof of particular fact

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

25. From the above provisions it is clear that the defendant had the burden to prove that the plaintiff was paid the purchase  price. The 1st defendant did not discharge that burden. It was not enough for the 1st defendant to say that the money was released to Chesire & Co. Advocates. There was no proof that Chesire  & Company  Advocates were acting  as agents for the plaintiff . The Agreement of sale was not express that the Advocates were to represent the plaintiff in the transaction. If anything the agreement provided the 1st defendant’s employer was to pay the purchase price to the plaintiff within one month from the date of the sale agreement. That did not happen.

26. On the evidence therefore, although I find  there was a valid  agreement between the original plaintiff,  Francis Kabugi Njuguna ( now deceased), and the 1st defendant, I nonetheless do not find the 1st defendant fulfilled  the terms  of the sale agreement dated 3rd  March  1999.

27. There was no evidence that the plaintiff was paid the purchase price and consequently there was lack of consideration for the contract. The lack of consideration vitiated the contract and the same was rendered null and void.

28. On the issue  whether  or not  the transfer  of the suit property  was validly  effected to the 1st defendant  by the plaintiff there is contestation as to whether the plaintiff actually signed the transfer. The plaintiff denied that he did. That in effect  shifted the burden to prove  that the plaintiff signed  the transfer  to the 1st  defendant. The instrument of transfer alleged to have been signed by the plaintiff was not tendered in evidence. It was  not indicated by the 1st defendant when, if at all, the transfer  was executed and before whom since a transfer relating to a disposition  of  land required  that the signatures  of the persons signing be witnessed  and attested as provided  under the law. Under the repealed Registered Land Act, Cap 300 Laws of Kenya Sections 109 and 110 provided in what manner such a transfer required to be executed. Section 110 (1) and (2) of the Registered Land Act provided as follows:-

110 (1) Subject  to subsection (3), a person executing an instrument shall appear before the  Registrar or such  public officer or other person as is prescribed  and, unless he is known to the Registrar or the public  officer or other  person, shall be accompanied  by a credible  witness for the purpose of establishing  his identity.

(2) The Registrar or public officer or other person shall satisfy  himself as to the  identity  of the person appearing  before him and  ascertain whether he freely  and voluntarily  executed the instrument and shall complete  thereon  a certificate to that effect.

29. The 1st defendant did not explain how the transfer was executed. In the face of the denial by the plaintiff that he did not sign a transfer, it was incumbent upon the 1st defendant to lead evidence as to how the transfer was executed, and if need be, call as a witness the person who witnessed the execution. The burden of the 1st defendant was not made any lighter when the Land Registrar testified. The Land Registrar affirmed they did not hold in their records a copy of the instrument of transfer that was registered putting to question whether infact there was one or if it was there, whether the same had been signed by the plaintiff. The Land Registrar is the custodian of all land records and is expected to have custody of all copies of registered instruments and when any such instruments are not available   questions of complicity on the part of the office are bound to arise.

30. The transfer in the instant matter without doubt  was effected  before  the purchase  price was paid and that raises the question whether the plaintiff could have willingly have executed the transfer without being paid and/or without a firm  undertaking  that he would be paid. There is no evidence that the 1st defendant’s employer, the postal corporation had as at the time the transfer was effected to the 1st defendant given commitment to pay any money to the plaintiff either directly or through any agent. In conveyancing parlance, the normal practice where a person is being financed and the subject matter of the transaction is to be taken as security , is for the advocates of the  financier  to give a professional undertaking  on behalf of the financier to the vendor’s advocates for the payment. In the present matter no correspondence to such effect was exhibited.

31. At the time the postal Corporation charged the property in February 2000 the 1st  defendant had already been registered  as the owner of the suit property. There was nothing to link the charging  of the property to the sale transaction as there was no communication between the plaintiff and the 4th defendant.

32. According  to the plaintiff  after the expiry of 30 days  he assumed  the transaction had aborted  and only discovered much later that the 1st  defendant had somehow caused  the transfer  of the land to her name. That precipitated the filing of the present  suit. I find no evidence upon which I can hold the plaintiff executed the transfer  registered in favour  of the 1st defendant.

33. Having  found and held that there was no proof of payment  of the purchase price to the plaintiff and/or that the plaintiff  had signed the transfer of the suit land in favour of the 1st  defendant, it follows that the sale  transaction  was voidable  on account  of lack of consideration  and that the transfer  effected in favour of the 1st defendant was ineffectual and could not confer any interest  to the 1st  defendant. There was no evidence that M/s Chesire & company Advocates were agents of the plaintiff. If anything the firm appears to have acted in concert with the 1st defendant to defraud the plaintiff. There is no evidence that the firm was involved in drawing the transfer but at least there is evidence that a cheque for Kshs800,000/= was made out in favour of the firm by the 1st defendant’s employers. The 1st defendant had a stake in this money since the plaintiff was only entitled  to kshs600,000/=  and hence the 1st defendant must have been interested in how the money was disbursed. At the time  the money  was paid by Postal Corporation there is evidence that the plaintiff was facing several  criminal cases  in court which eventually  resulted  in  his conviction  and imprisonment  and could have been disoriented and  the 1st defendant  could have taken advantage.

34. On a balance of probabilities I find the evidence of the  plaintiff more likely  to be true  as  opposed to that of the 1st defendant. It is noteworth  this was a case  where the court was faced with  choosing  either to believe  the evidence  of the plaintiff or the 1st defendant. There were glaring gaps in the 1st defendant’s evidence which militated against the same being believable. Why for instance was the transfer registered separately without the charge when the two could be registered simultaneously? Who drew the transfer  and who attested the execution, and if it was a lawyer, why wasn’t  such lawyer  called as witness?. And why wasn’t the executed instrument of transfer available  and/or any payment  receipts for the registration of the transfer  at the Lands office?

35. The net result is that I have come to the conclusion that the transfer in favour of the 1st defendant was irregularly procured   and was not effectual. Further I find and hold that no consideration was paid by the 1st defendant for the land and that vitiated   the contract of sale.

36. In the circumstances I hold that the plaintiff has proved her  case on a balance of probabilities and is entitled to judgment. The 1st defendant’s counterclaim is not proved and I dismiss the same.

37. I therefore enter judgment for the plaintiff and make the following final orders:-

1. A declaration is hereby issued that land parcel Nakuru/Ol’ongai phase II/244 belongs to Francis  Kabugi Njuguna ( deceased).

2. The Land  Registrar Nakuru is directed  to cancel  the registration  of  Martha  Chebet as owner  of land  parcel Nakuru/Ol’ongai  Phase 11/244 and to revert  ownership  to Francis  Kabugi Njuguna( deceased).

3. The Kenya Postal Corporation  of Kenya is directed to  unconditionally discharge  the charge  registered on 1st February 2000 against the title Nakuru /Ol’ongai/phase 11/244.

4. The plaintiff is awarded the costs of the suit and the counterclaim.

Judgment dated signed and delivered at Nakuru virtually this 24th day of September 2020.

J M MUTUNGI

JUDGE