Esther Wangui Ndegwa v Hellen Wambui Meria, Douglas Muraya Karuiru, Chief Land Registrar Sued on Behalf of the Land Registrar Thika, Registrar of Titles, National Land Commission [2021] KEELC 4116 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 31 OF 2019

(FORMERLY NRB ELC NO. 1194 OF 2013)

ESTHER WANGUI  NDEGWA...............................................................................PLAINTIFF

VERSUS

HELLEN WAMBUI MERIA.........................................................................1ST DEFENDANT

DOUGLAS MURAYA KARUIRU................................................................2ND DEFENDANT

THE CHIEF LAND REGISTRAR SUED ON

BEHALF OF THE LAND REGISTRAR THIKA.....................................3RD DEFENDANT

THE REGISTRAR OF TITLES..................................................................4TH DEFENDANT

THE NATIONAL LAND  COMMISSION................................................5TH DEFENDANT

JUDGMENT

By a Plaint dated 3rd October 2013,  the Plaintiff sought Judgment against the Defendants jointly and severally  for the following orders that;-

a) A Declaration  that the proceedings  before the Thika Lands Disputes  TribunalCulminating  in an award  adopted in Thika Chief Magistrates D.O Case Number 63  of 2006  were illegal null and void.

b) A Declaration  that any sale of the suit property  by the 1st Defendant to the 2nd Defendant  is illegal, null and void.

c) A Declaration that the Defendants hold land parcel  Number Ruiru /Kiu Block  2 ( Githunguri ) 4308  in trust for the Plaintiff  and the Plaintiff therefore prays  for an order  directing  the Thika Land Registrar  to rectify the  register  of land parcel  Number Ruiru /Kiu Block  2 (Githunguri ) 4308  by deleting the names  of the 1st and 2nd Defendants  from the register and in their place  enter  the Plaintiff’s name  as the sole and absolute  proprietor  of the suit land.

d) A Permanent Injunction restraining the 1st  and 2nd Defendants  from trespassing into, subdividing, transferring, wasting, alienating  or otherwise  dealing  with or parting  with possessing of the suit property namely  Ruiru/Kiu Block 2 (Githunguri) 4308.

e) Costs of the suit.

f) Any other or further relief that the Honourable Court may deem fit and just to grant.

The Plaintiff had averred  that on 2nd June 1968, her late husband  Ndegwa Thiongo and herself purchased shares from Githunguri Constituency Ranching  Company Limited-Ruiru  as per share certificate No. 2440.  They were allocated  ballot No. 1243, for land parcel  No. 4308  measuring 1. 25 acres, and the Plaintiff entered into possession and caused the survey of her parcel of land  No. 4308,  as shown to her by Githunguri Constituency Ranching Company Limited. That a title deed was processed being Ruiru/Kiu Block 2(Githunguri) 4308, and issued on 26th August 1996.

That in January 2008, the Plaintiff  was informed  that there were proceedings  at Thika Law Courts,  where the 1st Defendant had initiated  a process to disposses  her off the suit property.  That  on 4th February 2008, the Plaintiff  attended Thika Law Courts and  discovered  that the 1st Defendant had initiated  proceedings at Thika Land Disputes Tribunal,who heard the matter without her knowledge  and participation  and made an award  in favour  of the 1st Defendant  by ordering the transfer  of the suit property into the names of the 1st Defendant. That upon perusal of Civil Suit to wit Thika Chief Magistrates  Court D.O Case No. 63 of 2006 Hellen Wambua Meria …Vs… Esther  Wangui Ndegwa, the Plaintiff  duly made  representations  on subsequent dates,  but the court adopted the award on 20th  August 2008.

Further   that  on 9th April 2008, the  3rd and 4th Defendants duly complied with  the Court order in Thika  Chief Magistrates, D.O Case No. 63 of 2006,  and cancelled the Plaintiff’s title  and issued a new title to the 1st Defendant  for the suit property. That the Plaintiff then duly registered restrictions  on the said title to protect her interests  with the 3rd and 4th  Defendants at Thika  Lands Registry  and also  sought intervention  and arbitration with the registered officials  of Githunguri Constituency Ranching Company  Limited – Ruiru,  who stated that the  suit property as per  their records  belongs to her  as parcel No. 4308and the 1st Defendant’s land is  parcel no. 493, which is different and not in the same locality. That upon conducting an official search, the Plaintiff  discovered  that the 1st  Defendant had sold  and transferred the suit property to the 2nd Defendant .

It was the Plaintiff’s contention that the 1st to 4th  Defendants  have acted fraudulently and Illegally. The plaintiff particularized  fraud and illegality as initiating  legal proceedings at Thika Land Disputes  Tribunal, hearing the same and making an award without notifying the  Plaintiff or Githunguri  Constituency Ranching Company  Ltd-Ruiru, being a first registration, the Thika Land  Disputes Tribunal had no  jurisdiction to hear and determine the same, alienating the land during the subsistence of  a Caveat / restriction  lodged over it , purporting to  sell the Plaintiff’s  interest in the suit land  yet records and statements  by Githunguri Ranching Company limited  confirmed the suit property belonged to the Plaintiff. Registering and issuing a  new title  deed to the parcel of land to other persons other than the ones prescribed by law, bribing Police officers  at Thika and  Ruiru  Police Stations.

The Plaintiff contended that having fulfilled all the conditions for the purchase of the  suit property from Githunguri  Constituency Ranching Company,  and a title deed issued to her, the Defendants must be presumed to hold the suit property in trust  for her  as she had possession to date

The suit is contested and the 2nd Defendant filed a Defence dated 30th October 2013, and denied all the allegations made in the Plaint. He averred that  the suit was bad in law as it  had been determined  by a Court of competent jurisdiction vide D.O  Case No. 63 of 2006.  That the Court coram shows that the Plaintiff was in Court  on 29th October 2007, and further that the Court   adopted the  award  on 20th August 2008. The 2nd Defendant further averred that  as per the due diligence  conducted before the sale, all government  records indicated  that the 1st  Defendant  was the legal owner  of the suit property  and that the proper legal  process  was followed  during the sale  and transfer of the  suit property to the 2nd Defendant . Further that he was an innocent purchaser  for value  and as per the government record, the 1st  Defendant was the  legal registered owner of the suit property,  which vested the 1st Defendant  with right to dispose  of the property .

Further that the 2nd Defendant is the current legal registered owner and has been in possession of the suit property. That the Plaintiff’s possible course of action is either Judicial Review or an Appeal, and not institution of another legal suit . Further that the cause of action is barred by Limitation of time.   That the suit is Res judicata  since the same issues were determined  by a competent Court. The Court was urged to dismiss the suit since the  Plaintiff has no cause of action.

The 1st Defendant  filed a statement of Defence dated  25th March 2014  and denied all the allegations made in  the Plaint  and averred that the parties were invited  by the then District Officer  on 22nd February 2005, together  with a 3rd person not a party to the suit  over the suit property. That the Plaintiff failed to appear after several invitations. That the plaintiff fully participated  in the Thika Chief Magistrates Court  D.O Case No. 63 of 2006,  and the award was adopted on merits.  That despite a gazette Notice informing anyone with  objection to lodge  their complaints, the Plaintiff never lodged any complaint or objection . That the 2nd Defendant is the owner of the suit property and the 1st Defendant is still in possession. That the matter raised in the suit are Res Judicatasince the same were determined and concluded. The Court was urged to dismiss the Plaintiff’s suit against the 1st Defendant with costs.

After close of  pleadings, the  matter proceeded by way of viva voce evidence on 22nd July 2020  wherein the Plaintiff testified for herself and closed her case. Despite being served with the  hearing Notice, the  Defendants did not attend Court for hearing and therefore the matter proceeded without their participation.

PLAINTIFF’S CASE

PW1  Esther Wangui Ndegwa adopted her witness statement dated 3rd October 2013, as part of her evidence . She produced the list  of documents  as Exhibits 1 to 12. She testified that she bought the land from Githunguri  Constituency Ranching  Company Limited . That she had receipts for payment for the suit property and that the Chairman confirmed that the land belongs to her and she was the one in possession  of the suit property. That though the 1st and 2nd Defendants entered into her land, she had demolished the structures that they had put  thereon. That she conducted a search and noticed that the land had been changed into the name of the 1st and 2nd Defendants. That they balloted  for the parcel of land  and she got hers  It was her evidence that Hellen’s title was different from hers. She urged the Court to allow her claim with costs .

The Court directed the Plaintiff to file written submissions and in compliance with the said directive, she filed the said written submissions though the Law Firm of   Magare  Musundi on 19th August 2020,which the Court has carefully read and considered.

The issue for determination is whether the Plaintiff is entitled to the orders sought.

Though the Defendants filed their respective  Defences, they  did not adduce any evidence in support of their claim and therefore all the averments in their Defence remains just mere allegations as averments in pleadings are not evidence.  Therefore, the Plaintiff’s evidence remained uncontroverted and in the case of Shaneebal Limited…Vs…County Government of Machakos (2018)eKLR, where the Court cited the case of Janet Kaphiphe Ouma & Ano….Vs…Marie Stopes International (Kenya), Kisumu HCC No.68 of 2007,  the Court held that:-

“In this matter apart from filing its statement of Defence the defendant did not adduce any evidence in support of assertions made therein . The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations….Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same.’’

However, the Plaintiff still has an obligation to prove her case as uncontroverted evidence is not automatic evidence.

The Plaintiff has laid  claim to the suit property and averred that her husband and herself had bought the suit property from Githunguri Constituency Ranching Company Limited.  It is not in  doubt that the  1st Defendant in his Defence had also  laid claim to the  suit property and as per the proceedings in the Land Disputes Tribunal,  the tribunal held that  2nd Defendant was the legal owner of the suit property.   The said proceedings were adopted by  the Chief Magistrates Court  as the order of the Court.

In her Plaint, the Plaintiff had sought for the Court’s Declaration that  the proceedings  before the  Thika Lands Disputes Tribunal, culminating  in an award  adopted in Thika D.O Case No. 63 of 2006,were illegal, nulland void. The Court having gone through the proceedings in this Court notes that  vide  a Ruling dated 24th October 2014,theHon. Justice  Mutungi  held that  the said proceedings were illegal. There is no indication that the said orders were ever varied or set aside and therefore this Court finds that the said prayer is merited.

The Plaintiff  has also sought for a declaration that the sale of the suit property to  the 1st Defendant by the 2nd Defendant was  illegal. It is not in doubt that the  2nd Defendant sold the suit property  to the 1st Defendant on the strength of the proceedings which have since be declared a nullity. Be that as it may, the 1st Defendant  without having the cancellation of the suit property,  is the registered owner of the suit property. It is trite that when a persons title over a property is called into question, then that person must be able to provide for the root of their title. See the case of Munyu Maina…Vs.. Hiram Gathiha Maina [2013] eKLR, held as follows:

“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”

In this instant, it became imperative that the  1st Defendant shows the root of his title. As the Court has noted above, the Defendants did not testify in Court, Therefore, they have been unable to show the root of their title.

The Plaintiff on the other hand  averred that she bought the suit property from Githunguri Constituency Ranching Company. To collaborate her evidence, the Plaintiff produced in evidence a ballot card for shamba No. 4308. The Plaintiff further produced in evidence various receipts evidencing payments made to the said Company . The Plaintiff further produced in evidence a clearance  certificate  from Githunguri  Constituency Ranching Company  indicating that she bought shamba 4308, ballot 1243 and a certified Copy of the  extract from the original Register  confirming that the Plaintiff  parcel of land was 4308. The Plaintiff also produced in evidence  a letter  from Githunguri Constituency Ranching  Company dated 25th June 2010  confirming that as per their records , the Plaintiff was the owner of the suit property.

It is not in doubt that the suit property, initially belonged to the Githunguri Constituency Ranching Company Limited as the 2nd Defendant also claimed to have acquired proprietorship from them. Further as the Company has confirmed that the plaintiff is the owner as per their records coupled with the Plaintiff producing in evidence  documents to prove the root of her title, the Court finds and holds that the Plaintiff has proved the root of her title.. See the case of Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others[2016] eKLR,where the Court held that;

‘A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must alwaysbear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’’

The Plaintiff having satisfactorily explained the root of her title and the Defendants having failed to explain the root of their title, the Court finds that the 1st  Defendant’s Certificate of title must be impeached . See the case of Alice Chemutai Too …Vs… Nickson Kipkurui Korir & 2 Others [2015] eKLR,where the Court held that:-

“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme

I do not see how a person with a perfectly good title should be deprived of his title by activities of fraudsters. It is in fact time to put down our feet and affirm that no fraudster, nor any beneficiary of fraudulent activities, stands to gain for his fraud, and no title holder will ever be deprived of his good title by the tricks of con artists.”

The Plaintiff has sought for a declaration that the sale of the  suit  property was illegal, As already noted, the Defendants  did not prove the root of their title.  The Court has further gone ahead  to impeach the title held by the 1st Defendant and  subsequently by the 2nd Defendant.  Therefore, the Court finds and holds that the said prayer is merited.

The Plaintiff has also sought for a declaration that the Defendants were holding the property in trust for her.  In the case of Juletabi African Adventure Limited & another …Vs…Christopher Michael Lockley [2017] eKLRthe Court relied on the case of Twalib Hatayan Twalib Hatayan & Anor vs. Said Saggar Ahmed Al-Heidy & Others[2015] eKLR, where the same Court of Appeal held that;

“According to the Black’s Law Dictionary, 9th Edition; a trust is defined as

“1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”

Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…”

In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand.  A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. …  It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust.  A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit(see Halsbury’s Laws of England supra at para 1453).  As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor.  Imposition of a constructive trust is thus meant to guard against unjust enrichment. …

A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee... This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175).  Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money.  Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).”Emphasis added”

The Court having made a finding that the title held by the 1st  Defendant was illegal and therefore held by wrong doing, it would not hesitate to further hold that the Defendants then held the suit property in trust for the Plaintiff. Further Section 143of theRegistered Land Act Cap 300 (repealed)and which has been reproduced insection 80of theLand Registration Act, 2012 gives this Court the powers to cancel any title that has been acquired unlawfully and order for rectification of the Register.  The Court finds the said  prayer seeking for cancellation merited

Finally the Plaintiff has sought for an order of Permanent injunction. Being the owner for the suit property, she is entitled to all the rights and privileges that appertain to the  suit property including a right to peaceful and quiet possession of the suit property as provided bysections 27and 28ofCap 300(repealed) and now insection 24and 25of theLand Registration Act.The Court therefore finds and holds that the said prayer is merited.

Having now carefully read and considered the pleadings by the parties, the evidence adduced in support of and  the written submissions, the Court finds and holds that the Plaintiff has proved her case on the required standard of balance of probabilities. Consequently, the Court enters judgment for the Plaintiff against the Defendants herein jointly and severally as prayed in the Plaint dated 3rd October 2013, in terms of prayers No. (a) (b) (c) and (d)together with costs thereon.

It is so ordered.

Dated, signed and delivered at Thika this 4th Day of March 2021

L. GACHERU

JUDGE

4/3/2021

Lucy - Court Assistant

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic and in light of the directions issued by the Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the parties online with their consent. 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

Miss Sirima for the Plaintiff

No appearance for the 1st Defendant

No appearance for the 2nd Defendant

No appearance for the 3rd Defendant

No appearance for the 4th Defendant

No appearance for the 5th Defendant

L. GACHERU

JUDGE

4/3/2021