George Ndungu Njoroge v Tabitha Nyambura Nganga, Njuguna Nganga & Wanjiru Nganga [2016] KEHC 163 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

ELC NO 112 OF 2012

GEORGE NDUNGU NJOROGE..............................PLAINTIFF

VERSUS

TABITHA NYAMBURA NGANGA................1ST DEFENDANT

NJUGUNA NGANGA...................................2ND DEFENDANT

WANJIRU NGANGA....................................3RD DEFENDANT

JUDGMENT

Introduction

1.  The plaintiff, George Ndungu Njoroge, filed a plaint dated 20th June, 2012 praying for judgement against the defendants in the following terms:

(i) A declaration that the Plaintiff is the lawful owner of the parcel of land known as Plot No 238 Old Game Mutukanio Farm ("the suit property")

(ii) A permanent order of injunction restraining the defendants by themselves, their servants and / or agents from trespassing, entering, remaining in or   in   any   other way   interfering with   the plaintiff's quiet possession and use   of the suit property

(iii) Costs of the suit and interest thereon

(iv) Any other further relief that the court may deem fit and just to grant

2. The plaintiff contends that he bought the suit property from Mary Njoki Waigwa for valuable consideration in December, 2010.  However,  the defendants  entered  into the property without any  justification on  7th February,  2011and uprooted Rongai  grass, 50  timber poles  and  450  feet  of barbed wire  and proceeded to cultivate the suit property.

3.  Aggrieved  by this illegal  and unlawful conduct, the  plaintiff filed  a claim  before the  Gilgil  Land  Disputes Tribunal but the same  was   not   concluded as  its   constituent  Act,   the   Land Disputes Tribunal Act, No 18 of 1990 was  repealed  before conclusion of the  suit.

4. The 1st and 2nd defendants filed a defence and a counterclaim on   28th February, 2013.  In   their    defense, they strongly denied the allegations as contained in the plaint.

5.  In  their  counterclaim,  they  contend that  the 1st defendant was  and  still  is,  the  legal  owner  of the  suit  property, having purchased two  shares in  Mutukanio Farmers  Company  Ltd ("the company")   but  registered one  share in  the  name of her mother-in-law, Njeri Nganga  as per the  Company's regulations; that  she and  her family    have been in   possession and occupation of  the  suit   property ever  since; That in  October, 2010  the  share certificate was  stolen. She reported the loss to the police and was issued with a police abstract. She  was  later surprised to  find  that the  suit  property had  been  transferred fraudulently to the  plaintiff  which  particulars of the  fraud she sets out  as  follows;  stealing of share  certificate No 2759, the purported sale  was  done  by someone who had  no  authority  to do  so;  consent of  the relevant  Land  Control Board was  not obtained and  the area Chief witnessed the fraud in the absence of the real owner.

6.  The defendants seek the following prayers in their counterclaim:

i) A declaration that the defendants are the bona fide owners of the suit property.

ii) A permanent order   of injunction restraining the plaintiff by himself, his servants and/ or agents from trespassing, entering, remaining in or in any other way interfering with the defendants' quiet possession and use of the suit property

iii)  Costs of the suit and interest thereon

iv)  Any other further relief that the court may deem fit and just to grant

7.  The 3rd defendant did not enter appearance nor file a defence.

8.  Counsel for the plaintiff filed a list of proposed issues on 19th June, 2013. Counsel for  the  defendants did  not  file  any and  raised no  objection to the  issues filed  by the  plaintiff being adopted. The court will determine the case based on the issues filed which are;

1. Did Mary Njoki Waigwa have capacity to sell the plot No. 238 Old Game Muttukanio farm to George Ndungu Njoroge?

2. Who was the rightful owner of the suit property before it was purportedly sold to George Ndungu Njoroge?

3.  Who was the lawful owner of the suit property?

THE EVIDENCE

(a) The Plaintiffs Evidence.

9.  When this matter came up for hearing on 11th December, 2013 the plaintiff, PW1 testified and called two witnesses.  He testified that  he  had purchased the   suit  property from Mary Njoki  Waigwa  on  9th December, 2010 which sale agreement (Pexh. 1) was witnessed  by  Francis Kagwe   Ndungu,  his   son, under  whose name the suit  property was registered; that  he entered  into  another agreement  (Pexh.2) with James  Maigwa Karuri  (husband  to  Mary   Njoki  Waigwa)   on   31st December, 2010 to buy   the   posts and  barbed wire   belonging to  the 1st defendant which had been used to fence the  suit property.

10. After signing the agreement for purchase of the suit property, PW 1, accompanied by the vendor and her husband visited the adhoc Committee set up after the Company was wound up. The committee after confirming in their records that Mary Njoki was the registered owner of the suit property canceled her name and replaced  it with PW 1 son's name, Francis Kabui (Pexh.3). From there, they visited the Chief Miti Mingi Location who summoned the 1st defendant to his office.

She   stated that she had no  objection  to  the   sale of  the suit property by  her  daughter but  informed the  chief  that she had lost   the  receipts. The suit property was thereafter transferred and registered in his name by the District Land Adjudication officer (Pexh.6).

11.   He   took   possession of the   suit property in 2010 and planted grass but did   not put   up any   developments.  In February, 2011 the defendants trespassed onto the suit property and started cultivating. He reported the matter at Elementaita Police  Station and filed  claim No 49  of 2011 before the  Land  Dispute Tribunal (Pexh.5)  but the  same was not concluded as  the tribunal was  disbanded  upon the Land Dispute Tribunal Act being repealed.

12.   PW1   testified  that  he   had   been  a  neighbour  to   the defendants for  a long  time  and  that Mary  Njoki had been living on  the suit  property,  but  her current   whereabouts  were unknown. He had tried to trace her   and her  husband by all means, including advertisements in   Inooro radio with no success. He  further  testified that when the  suit property was purchased, Mary  Njoki was  a grown woman who  was about to get  married and   had   the  capacity to  raise the  money to  buy land. He denied being aware that the share certificate in Mary Njoki' s  name had    been stolen or that  the   theft  had  been reported to the  police,  but  pointed out  that the  police  abstract related to  another plot  (1862)  while  the  suit property was  plot No. 238.

13.  Simeon Gideon Mutume   PW2 testified on 21st January, 2014. He was currently the Chief Settlement Officer in charge of Naivasha Sub County. He  admitted having authored  the letter  dated  2nd July,  2012  (Pexh.6) confirming that   the plaintiff  was   the   owner of  the   suit  property and  produced a certified copy  of the  register as presented to  their office  by  the Company (Pexh.7)

14.   PW3 was   Francis Njoroge Kairigi who   had   at one   time served as secretary to the adhoc committee of the Company.  He testified that according to their records, Mary   Njoki was   the owner of Plot No.  238. He  stated that in  January 2011,  the plaintiff,   Mary    Njoki    and    her    husband   had     visited  the Company's  offices   wishing  to   effect   a  transfer  of   the   suit property in  the  name of Francis Kabui Ndungu (the  Plaintiff's son).   As  secretary  to  the   Company,  he   deleted  Mary  Njoki's name from  the  Company's register and  replaced it with  Francis Kabui   Ndungu's  name  (Pexh.3). Their   records now   read   that Francis  Kabui  Ndungu  holder  of  ID  No  23298029  was   the owner of plot  No 238  measuring 2. 5  acres which previously belonged to Mary  Njoki Waigwa  of ID No 6633084/69.

(b) The Defence Evidence

15.   The   defendant did   not   share the   plaintiff’s view of the evidence. Tabitha Nyambura  Nganga  DW1  the   1st defendant, testified on 7th May, 2014 and called  one  witness. She testified that she had   purchased 2 shares from the company and she had  registered one  share in  her  husband's name and the  other in  her  daughter's (Njoki Nganga's) name because the  Company policy  did  not  allow  any  member to register two  shares in  one person's name. After making the requisite payments for the two plots, (Dexh.2 (1-12)), she was   issued with   ballot papers No.169-170 (Dexh1) and allocated two plots and thereafter issued with share certificates.

16.  DW1 testified that about 4 years ago,  the  share  certificate registered in  her daughter's name was  stolen from   her   house which loss  she  reported to the  local  chief  and later to the  police and  was  issued with  a police  abstract on  12th February, 2011 (D exh.3). She denied knowing a person by the name of Mary Njoki Waigwa and reiterated that her daughter's name was Njoki Nganga. She was no longer cultivating the suit property as the tribunal had restrained them from using or entering the land.

17.  On cross examination, she stated that she had 10 children and that Njoki Nganga was her first child. Njoki was unmarried but   had a son who was deceased and who was buried on the suit property. She   stated that when Njoki lived   on   the   suit property she lived   there with different men and had put up some structures but moved   out after   her father asked her   to demolish the structures. She   denied knowing a man by the name of Waigwa.   She   further testified that  there had   been a barbed  wire  fence and  trees separating the two  plots  which were  removed by the  people who  bought the  suit property. She admitted being  summoned to the  chiefs office  and reporting to the  police  about the  stolen share certificate but stated that the police  declined to record the  plot  number in  the  police  abstract for  the  reason that there was  a dispute over  that parcel of land before  the  Chief.  She  further testified that she did  not  wish  to speculate on who  had stolen her  share certificate, did  not  know the  whereabouts of  her  daughter Njoki,  but their relationship had been  good.  She admitted that the plaintiff had been their neighbour since they occupied the suit property.

18.    Geoffrey   Njuguna    Nganga,    DW2    the    2nd   defendant, corroborated the   evidence of DW1.  He testified that the   suit property belonged to his father who had purchased two parcels as a member of the Company, each measuring 2. 5 acres each and which were   separated by a barbed wire fence and trees. One   portion had been registered in his father’s name and the other in his eldest sister (Njoki's) name, who   had lived on the suit property since 1975 before her disappearance.

19.   On   cross examination, DW2 stated that he was one   of DW1's 10 children and that he was born in   1957. His elder sister Njoki was born around 1949-1950, was not married but had a son who was now deceased and was buried on the suit property.  That Njoki   had lived   and cultivated on the suit property for about 10 years but the   rest of the siblings lived and cultivated on their parents parcel of land.

Submissions

20.  The plaintiff filed brief submissions on 23rd May, 2014 but the   defendant did not file any despite being given adequate time to   do   so.   Counsel  for   the   plaintiff submitted  that  the plaintiff  was  the lawful owner of  the suit  property  having entered into a sale agreement with one Mary  Njoki Waigwa being the previous owner of the  suit property and whose name appeared on  all the  ownership documents.

21.  In  his  view,  the  question before the court for  determination was  whether  Mary   was  holding  the    land  in   trust  for   her mother. It was his contention that she was not and gave   the following reasons;

i)      The suit property documents are all in the name of Mary

ii)     she was an adult at  the time of  buying the shares

iii)   she had lived on   the suit property for  a  long time

iv)    None of her other siblings lived on the suit property

v)     The suit property was   separated by   a fence from the other share belonging to the family.

vi)    Mary's child was buried on   the suit property whereas Mary's two siblings were buried on the share occupied by the rest of the family.

Analysis of the  Evidence and  Determination of Issues

22.  Having set out in extenso, the evidence of both the plaintiff and the defendant, I now turn attention to the determination of the issues raised by this suit.

23.  Issue 1.  Who was  the  rightful owner of the  suit property before it was  purportedly sold to George Ndungu Njoroge?

The answer to this question is Njoki Nganga alias Mary Njoki Waigwa. DW1's evidence contradictsher counterclaim and statement. In paragraph 13 of her   counterclaim, she states that when she bought shares from   Mutukanio Farmers, she registered one share in the name of Njeri Nganga who is her mother in law.  In her statement, she states that she used the name Njoki Nganga who was her mother in Law.  While testifying in  Court she made no  reference to  her  mother in  law but instead stated that when she bought the shares, she registered one  share in  the  name of her  daughter Njoki  Nganga. To me,  all  this circus is an attempt by  the  1st defendant  trying to show that the documents used by the plaintiff did  not emanate from   the  hands of the   registered owner who is either her  daughtecalled  Njoki  Nganga or  her  deceased mother in law who also     shared  the same name. However, from the evidence of PWI,  PW3,  DW1 and DW2  which was clear, unambiguous  and  unequivocal, there  is   no   doubt  that  the person who  sold   the   suit property to  the plaintiff was the   1st defendant's daughter, whether she went by  the  name of   Njoki Nganga, or  Mary  Njoki  Waigwa. All the document's that were produced in evidence  relating   to    the    suit   property  were registered  in  either  of   the    two   names  including  payment receipts issued by  the  Company (Dexh.2(1-12), the  share certificate, the   Company register  (Pexh.3) and  the   Land Adjudication  office   records   (Pexh.7). The    1st defendant has admitted in her testimony that she was summoned by the chief in relation to this sale transaction who threatened to sell the land whether she liked   it or not. She has also admitted that this matter went before the tribunal but her daughter did not testify. The  1st Defendant knew only  too  well  that her  daughter Njoki Nganga alias Mary  Njoki Waigwa  was behind the  sale and there is no  doubt she is one  and the  same person.

24.   Issue 2.  Did Mary Njoki Waigwa  have capacity to sell plot   No.  238 Old Game Mutukanio farm to George Ndungu Njoroge?

As stated above, it   is   not   contested that  all   documents  in relation to  the  suit property were  in  the name of Njoki  Nganga or  Mary  Njoki  Waigwa. The  issue in  contention is whether she was  the  legal  owner of the  suit property, whether she had the capacity to  it  dispose it  off  or  whether she was holding it  in trust for  her Mother. In their evidence, the defendants claim that the 1st defendant bought the suit property and had it registered in   Njoki's name.  On   theface   of it,   this implies a resulting trust. In the   1st defendant's mind, although the land was registered in Njoki’s name, the   land actually belonged to her as the purchaser. This is essentially a question of law and there are many decisions in our law reports on this question.

25.  The authors of Halsbury's Laws of England. 3rd Edition Vol. 38, para. 1457 describe a resulting trust as:

" A resulting trust is a trust arising by  operation of law where inter alia the property is purchased in the name or  placed in  the  possession of  a  person without any intimation  that  he is   to  hold it   in   trust,  and   the retention of  the beneficial interest of  the purchaser or disposer is presumed and  is held to be equitable"

" in all  these cases ....the beneficently expressed or indicated beneficiary or object result or  reverts to the disposer or purchaser of the property"

26.  In  this case, the 1st defendant alleges that she purchased the suit  property in  her   daughter's name, not   for  her   but  to hold  in  trust which evidence is corroborated by  her  son DW2. At the time the 1st defendant says she purchased this land, her daughter was about 21 years old.  She was an adult  and no evidence has been adduced to the  affect   that she did  not  have the  capacity to acquire the  necessary funds to  purchase shares in   the company  and  subsequently have  the suit  property allocated to her.

27.   Secondly,  Njoki's  occupation of   the  suit  property  with several men to  the   exclusion of  her   parents and all  her  other siblings negates the  intention  of  a trust.  She was the   only person among her    family members   who   lived    there and cultivated.   Only her   son is buried on the  suit property while her   deceased siblings are   buried in   their Parents   portion of land.

28.  From the foregoing, a presumption that she was indeed the beneficial owner and not a mere trustee of her mother can be inferred.  In the case of Yogendra Purshottam Patel v Pascale Mireille Baksh (Nee Patel) & 2 others [2006]eKLR,  Githinji JA,  observed the  following:

"Now   turning to  the  presumption of   resulting trust this category of  trusts arise in  order to give   effect to the intention of the parties where the parties have not made  their intention  clear on the face  of the instrument  effecting the  transfer  of   property as to where the ownership of beneficial interest lies - that is where  there  is   a "beneficial  vacuum". A resulting trust arises by operation of equity.   Where however, the transferor has no intention to create a trust and such an   intention cannot be   inferred from the circumstances of the case the resulting trust will not arise.

In the case of Ayoub v Standard Ban of S.A. [1963] EA 619, the Privy Council said at page 623 paragraph A:

"The courts will   not imply a trust save in order to give effect to the intention of parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied".

The Privy Council adopted the general rule stated in Cook   v Fountain (1676) 36   ER   984 at page 987, that:

"The law never implies, the court never presumes a trust, but in a case of absolute necessity".

(See also Mbothu & Others v Waitimu & 11 Others [1986) KLR 171 page   189, 2nd paragraph where the two   passages were applied).

29.   From the   evidence adduced in this case, I find   and hold that the burden of proving any facts alleged, lies on the person who asserts them. In this case, the  1st defendant alleges that her daughter was holding the suit property in trust for her and that she fraudulently transferred the same to the defendant. She has failed   to  prove the  existence of  these facts and this court invokes the provisions of Section 3 (4)  of  the Evidence Act,  Cap 80  Laws  of Kenya which provides:-

"A  fact   is  not  proved when it  is  neither  proved nor disproved" and also the provisions of Section 107of the Evidence Act  which  places  the   burden of  proof  on  the person, "desiring any  court to  give  judgment as  to  any legal right  or  liability dependent on  existence of  facts which she asserts to prove that those facts exist".

30.    In the circumstances, the 1st defendant has failed to discharge the burden imposed on her by law of proving what she has alleged. For the  above  reasons,  I  find   that Njoki Nganga alias Mary  Njoki Waigwa had  the  capacity to  enter into a  sale   agreement  with  George   Ndungu  Njoroge  and subsequently transfer the  suit property to him.

Issue 3. Who is the lawful owner of the suit property?

31.  In his evidence, the Plaintiff states that he was a neighbour to   Mary   Njoki  Waigwa and  her   husband and  also  Njoki's family. Before purchasing the suit property, he conducted due diligence which is corroborated by PW2 and PW3.   For   good measure, the plaintiff accompanied Mary Njoki Waigwa and her husband to   the   Company’s office and to   the   Chiefs office. Having satisfied himself that this transaction was above board, the plaintiff proceeded to effect transfer of the suit property. He cannot be faulted for doing so and his story is on a balance of probabilities more maintainable.

32.   The 1st Defendant on  the  other hand, only  has receipts of payments in  Njoki Nganga's name and the police  abstract to support her  story of which the  Plaintiff  has cast doubt as to whether it is the  right police  abstract for the  right plot. She alleges that fraud was committed but has failed to furnish the court with unimpeachable evidence to back up her  claim as was  held  by the  court  of appeal in  the   case of Ratilal Gordhanbhai Patel  -vs- Lalji Makanji  ( 1957) EA 314 which established the  threshold on  the  burden of proof  required in Civil cases founded on fraud.

"There is  one  preliminary observation  which  we must  make on  the  learned Judge's treatment  of this   evidence:  he does  not  anywhere in the judgment expressly  direct himself  on the burden of  proof  or  on  the  standard required.  Allegations of   fraud must be  strictly proved, although the standard  of   proof   may  not   be   so  heavy  as   to require proof  beyond reasonable doubt, something more  than  a   mere  balance of probabilities is required...."...

Conclusion

33.     In  conclusion and in  light of  the   findings in issues  1-3 above, I find and hold  that that the  Plaintiff is  entitled to  the prayers that he  has sought in  his plaint. I also find that the counter- claim by the defendants has no basis either in fact or in law and dismiss the same with costs to the plaintiff.

34.   On   the  question of  costs  under  Section 27   of  the   Civil Procedure Act,  costs follow  the  event unless the  court for good reason to  be  recorded, orders otherwise. I find no good reason to ordering otherwise. As the   plaintiff has been successful on all the   issues raised, he shall also have the   costs of the suit herein.

Dated signed and delivered in open court at Nakuru this 10th day of October 2014

L N WAITHAKA

JUDGE

PRESENT

M Ngure   for the plaintiff

N /A for the   defendants

Tabitha Nganga 1st defendant: present

Njuguna Nganga 2nd defendant: present

Emmanuel Juma: Court Assistant

L N WAITHAKA

JUDGE