Godfrey N Nyaga v Margaret W Theuri, Eugene Gitonga Kamau & Lands Registrar Nyeri [2015] KEELC 47 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NYERI

ELC  CASE NO. 61 OF 2015

(Formely HCC NO. 96 OF 2012)

GODFREY N. NYAGA ................................... PLAINTIFF

-VERSUS-

MARGARET W. THEURI ...................... 1ST DEFENDANT

EUGENE GITONGA KAMAU ............... 2ND DEFENDANT

LANDS REGISTRAR NYERI ................ 3RD DEFENDANT

JUDGMENT

Introduction

1.     The suit herein is in respect of the parcel of land known as   Aguthi/Gatitu/1144 situated in Nyeri town (hereinafter   referred to as the suit land). The plaintiff who claims to   have been the registered proprietor of the suit land,    together with the 1st defendant, explains that sometime in   September, 2010 he got information that somebody was    fencing the suit land. After conducting inquiry on the        matter, the plaintiff discovered that a person called   Maureen Wachera Macharia was in the process of  purchasing the suit land from the 2nd defendant. The inquiry also revealed that it was the 2nd defendant who    was selling the property to Macharia, purporting to be the  legal owner of the suit land.

2.     Upon conducting a search at the lands registry Nyeri, the  plaintiff discovered that the suit land had been fraudulently   transferred into the name of a person called Dorcas Nduta   Macharia who had in turn sold it to another person.

3.     Pointing out that the 2nd defendant is in the process of  transferring the suit land to other parties, the plaintiff prays     for judgment against the defendants jointly and severally      for:-

1.     An injunction restraining the 2nd defendant from  transferring, alienating, using, leasing or in any  other way dealing with the suit land.

2.   An order of inhibition inhibiting any dealings with   the suit land till this suit is heard and determined.

3.    A declaration that the transfer of the suit land    from the joint names of Godfrey N. Nyaga and  Margaret W. Theuri into the name of Margaret W.   Theuri alone and the subsequent transfer of the    suit land to Dorcas Nduta Macharia and then to  Eugene Gitonga Kamau were fraudulent and      illegal.

4.     An order directing the 3rd Defendant to cancel the    subsequent titles issued to any other person     other than the first one in the name of Godfrey W.   Nyaga and Margaret W. Theuri.

5.     Damages for trespass.

6.     Costs of the suit.

4.     In her statement of defence dated 16th June, 2012 the 1st   defendant denies having been involved in the transfer of       the suit land into her name alone or into the names of   Dorcas Nduta Macharia. The 1st defendant states that if     any transfer was done, it must have been done     fraudulently by either the 2nd defendant or the said Dorcas   Nduta Macharia.

5.     The 1st defendant further states that to the best of her knowledge the suit land is still jointly owned by the plaintiff   and herself.

6.     In his statement of defence dated 4th June, 2012 the 2nd    defendant states that he was registered as the proprietor    of the suit land after he bought it from Dorcas Nduta   Macharia. Explaining that he has been in occupation of the     suit land from the time he bought it (8th March 1994), the  2nd defendant explains that on 20th January, 2010 he sold   it to Maureen Wachera Macharia.

7.     Concerning the alleged fraud in transfer of the suit property to him, he denies having engaged in the alleged fraud and    contends that he was a purchaser for value from his   predecessor in title.

8.     With regard to his attempt to transfer the suit property to a    third party, Maureen Wachera Macharia, he states that   being the proprietor of the suit land he has every right to   transfer the suit land.

9.     On behalf of the 3rd defendant, the Office of the    Honourable Attorney General filed the statement of         defence dated 2nd January, 2013in which it denied all the allegations contained in the plaint and put the plaintiff to    the strict prove of those allegations.

EVIDENCE

The plaintiff's case

10.   When the matter came up for hearing, the plaintiff   reiterated that the first defendant and he were the initial     registered proprietors of the suit land before it was    fraudulently transferred to other persons including the 2nd defendant. To prove his entitlement to the suit land, the  plaintiff produced the following documents:-

a)     Title deed issued in respect of the suit land, as Pexbt  1;

b)     Copy of the green card in respect of the suit land, as  Pexbt 2;

c)     Official search certificate dated 27th April, 2007 as   Pexbt 3;

d)     Proceedings and judgment dated 17th February,     2012, as Pexbt 4

e)     A letter from the Director of Criminal Prosecutions      dated 30th March, 2012, as Pexbt 5.

11.   Concerning the entries in the green card that showed that  he transferred the suit land to the 1st defendant, he stated   that he did not transfer it to anybody.

12. Concerning his acquisition of the suit land, the plaintiff    stated that the first defendant and he bought the suit     property in 1978 from a Mr. Hamisi and later got it  registered in their joint names. He denied having  transferred it as a gift to his co-registered properietor, as    indicated in entry 5 of the green card.

13.   The plaintiff further stated that when he contacted the 1st     defendant about the transfer, she denied having any   knowledge about the transfer or having been involved in the transfer.

14.   The plaintiff informed the court that even though he has  never lived in the suit land he had been cultivating on it.

15.   When he discovered the fraudulent dealings concerning   the suit land, the plaintiff complained to the police but no    action was taken against the 2nd defendant.

16.   P.W.2 Maureen Wachera Macharia, informed the court   that she was approached by agents to buy the suit land.    The agents told her the land belonged to Eugene Gitonga Kamau (the 2nd defendant). She did a search which   revealed that the land belonged to the 2nd defendant. As a   result, she entered into a sale  agreement with the 2nd    defendant. After she had entered into the agreement for   sale of the suit land with the 2nd defendant, she was    informed by the owners of the parcels of land adjacent to      the suit land that the 2nd defendant was not the owner of    the land. For that reason, she lodged a complaint with the  police which resulted in arrest and charging of the 2nd  defendant and his wife with the offence of obtaining by    false pretences.

17.  P.W.2 further  informed the court that she was refunded the   Kshs. 300,000/- she had paid to the 2nd defendant in   respect of the suit land.

The defence case

18.   In her testimony, the 1st defendant, Margaret Wanjugu  Theuri, informed the court that she bought the suit land     with the plaintiff and reiterated her contention that she was    never involved in the transfer of the suit land to herself   and/or any other person. Like the plaintiff, she stated that         the suit land, which was jointly registered in her name and    in the name of the plaintiff, was transferred without their    knowledge.

19.   Like the plaintiff, the 1st defendant stated that they bought   the suit land in 1978 from an old man whose name she     could not remember. Although she could not remember the   plot number of the parcel of land they bought, the 1st     defendant described the physical location of the suit land     as near Namachaki PCEA Church near Skuta area in   Nyeri.

20.   Concerning the entries in the green card which showed   that a person called Margaret Theuri transferred the suit   property, she stated that that person is not herself.    Explaining that she cultivated the land  between 1978 and   1980, the 1st defendant stated that she had left the land in     the care of her neighbours and that in 2005, she carried     out a search that revealed that they were still the  registered properietors of the suit land.

21. On his part, the The 2nd defendant, Eugene Gitonga     Kamau, informed the court that he bought the suit land      from Dorcas Nduta Macharia. Before buying the suit land,    he conducted a search which revealed that Dorcas Nduta   Macharia was the registered proprietor of the suit land.  Thereafter he got registered as the proprietor of the suit        land.

22.   Pointing out that in 2010 he sold the suit land to P.W.2, he    explains that owing to that transaction, he was arrested      and charged with a criminal case but after trial was acquitted of the charges against him.

23.   Explaining that he got to know the plaintiff during the said  criminal case and the 1st defendant during the hearing of   this case, he stated that he has no claim against them.

24.   In support of his case, the 2nd defendant produced the   sale agreement executed between him and Dorcas Nduta Macharia and the search he had carried out  before   entering into the sale agreement as Dexbt 1 and 2    respectively.

25.   Maintaining that the suit land is his, the 2nd defendant stated that he has already transferred it to Joel Karimi   Warutere.

26.   Concerning the title held by the plaintiff, he conceded that    it was issued before his.

27.   On whether he obtained the history of the suit property from the person who allegedly sold it to him, he stated he   never did so.

28.   Concerning sale of the suit land to Joel Warutere during   the pendency of this suit, he explained that he did so because his title was recognised in the criminal case filed  against him and that there was no order restraining him   from utilising the suit land or selling it.

29.   The testimony of the 3rd defendant was given by the Nyeri   County Land Registrar, Mr. W. R. Ngaine. Concerning the entries shown in the green card, Mr. Ngaine stated that   they are made by registration clerks and signed by the   Land Registrar. In respect of those entries, he stated entry   No.1 to 4 are as should be. Concerning entries No.5 to 8,   he stated that his office had received a complaint from       Criminal Investigations Department (CID) concerning  them.

30.   Explaining that he cannot verify the authenticity or  otherwise of entries No.5 to 8, he explained that the title    held by Margaret Theuri and Godfrey Nyagah ought to    have been surrendered, yet there was no evidence that it  was surrendered. He further stated that entry No. 6 should   not have been done without entry of an Identity card     number.   He produced a certified copy of the green card in respect of the suit land as D.W.3 Exhibit 1.

31. Concerning the transfer of the suit land from the 2nd    defendant to Joel, he stated that they received the title    deed held by the 2nd defendant and transfer documents   but could not effect transfer in favour of Joel because of  this case.

The Registrar produced the original title deed issued in  favour of  the 2nd defendant and held by County Registrar    as 2nd defendant's exhibit 1.

32.   Upon cross-examination by the plaintiff’s counsel, the Land Registrar stated that according to their records, they did   not have any transfer from Dorcas to the 2nd defendant   and from Margaret to the 2nd defendant, yet such a  transfer is a mandatory document for their records. In view   of that fact, he stated that those transactions are      unsupported.

33.   Terming failure to indicate identity card number in entry No. 6 unprocedural, he opined that the entry could have been   effected negligently.

34.   Given the fact that the original title deed is with the original   proprietors of the suit property, he stated there is     something wrong with the issuance of the 2nd title deed.

35.   Concerning entry number 5 in the green card, he stated   that their records have no entry to show that the original      title deed was surrendered yet a surrender of the original  title  was mandatory. He also pointed out that entry    Number 5 is missing in their presentation book.

36.   He stated that according to Pexbt 3, the plaintiff and the 1st defendant were the registered proprietors of the suit      property, yet that is not the position in the green card.   Commenting on that situation, he stated that the entries in    the register were either back-dated or the search issued in     respect thereof was issued with the ommission of the    subsequent entries.

37.   Mr. Ngaine informed the court that entries No.1 to 4 have  supporting documents. The said entries are also in the   presentation book. He pointed out that there was variance     between the Identity card produced by 1st defendant and  that purported to be hers in the transfer in favour of Dorcas. (1st defendant’s I.D according to I.D Produced in     court is 1425634. The I.D used to transfer the suit land to Dorcas is 1424366/65).

38.   Terming the title issued to 2nd defendant genuine on face    value, he admitted that sometimes their office issues two     title deeds, an occurrence he explained to be irregular.

39.   At the conclusion of the case, advocates for the plaintiff  and the 1st defendant  filed written submissions, which I have read and considered.

40.   From the pleadings, evidence and the submissions filed in   respect thereof, I find the sole issue for determination to be  whether   the plaintiff has made up a case for being  granted the orders sought.

Analysis and determination

41.   It is not in dispute that the suit land was originally registered in the names of the plaintiff and the 1st    defendant before it was purportedly transferred to the 1st  defendant alone as a gift.

42.   Both the plaintiff and the 1st defendant denied having been parties to the purported transfer of the suit property to   Margaret W. Theuri as a gift. The evidence on record shows that the Identity card  used in effecting the transfer   of the suit property to the said Margaret W. Theuri is  different from the one held by the 1st defendant to whom the suit land was allegedly transferred to, as a gift, by the   plaintiff.

43. According to the testimony of the Land Registrar, the  transfer of the suit land to Margaret W. Theuri and   subsequently to Dorcas Nduta Macharia and the 2nd  defendant was irregular on the following grounds:-

a) Titles held by the transferrors were not surrendered as   is normally the norm;

b)     Entries in respect thereof are not supported by the   necessary documents like transfer forms;

c)     Entries were not entered in the presentation book

d)     Some entries, like entry number 6 in the green card, were entered without indication of the Identity card   number of the transferee.

The Law applicable

44.   Under Section  143 of  the Registered Land Act, Cap 300     Laws of Kenya (now repealed) which by dint of the  provisions of Section 107 of the Land Registration Act, 2012 applies to the suit land, this court has power to order  rectification of the register by directing that any registration   be cancelled or amended where it is satisfied that any   registration (other than a first registration) has been  obtained, made or omitted by fraud or mistake.

45.   There being evidence that the plaintiff and the 1st  defendant were the first to be registered as the proprietors  of the suit property and there being no evidence that    registration in favour of the 2nd defendant and his predecessors in entitlement, namely Dorcas and Monica,  was lawful or bonafide, I find the plaintiff’s claim to have     been proved on a balance of probabilities.

46.   Concerning the title held by the 2nd defendant, I can do no    better than adopt the judgment of J.M Mutungi J., in the  case of Esther Ndegi Njiru & Another v. Leonard Gatei  (2014)e KLR thus:-

“In the present case the plaintiffs cannot shield  themselves with the title that they hold though without any doubt they were bona fide and innocent purchasers from the 2nd Defendant.  The act of the 2nd Defendant of processing the title to his name using fake or forged documents were patently illegal and the      2nd Defendant must have known they were.  The   processing of the title in his name and thereafter  selling the parcel of land to the unsuspecting plaintiffs was illegal and unprocedural.  The 2nd Defendant must  have known what he was doing.  He was simply a  conman otherwise he would have appeared to defend    and/or clear his name.  While it is clear the title held bythe plaintiffs cannot be impugned under section 26(1)a) of the Act as they were not party to any fraud or  misrepresentation the title is nonetheless impeachableunder section 26(1) (b) as the title transferred to them  by the 2nd defendant was obtained illegally and unprocedurally.

Whereas the law respects and upholds sanctity of title   the law also provides for situations when title shall not be absolute and indefeasible.  The rampant cases of  fraudulent transactions involving title to land has rendered it necessary for legal practitioners dealing with transactions involving land to carry out due    diligence that goes beyond merely obtaining a certificate of search.  Article 40(6) of the Constitutionremoves protection of title to property that is found tohave been unlawfully acquired.  This provision of the  constitution coupled with the provision of section 26(1) (a) and (b) of the Land Registration Act in my   view places a responsibility to purchasers of titled  properties to ascertain the status of a property beyond    carrying out an official search.  In this era when there    are many cases of what has been described as  “grabbed public lands” it is essential to endeavour to ascertain the history and/or root of the title.”

47.   Since there is evidence that the requisite legal procedures   and processes of registration of title were not followed in  registration of the title held by the 2nd defendant and there  being no evidence that the original proprietors of the suit      land namely the plaintiff and the 1st defendant were parties     to the impugned transfer, I find and hold that the title held  by the 2nd defendant does not enjoy legal protection. Consequently, I find the plaintiff’s suit to have merit and  allow it in terms of prayers 1, 3 and 4 with costs, against the 2nd and 3rd defendants.

Dated, signed and delivered at Nyeri this 18th day of November, 2015.

L N  WAITHAKA

JUDGE.

In the presence of:

Mr. Ng'ang'a for the plaintiff

Mr. Kingana h/b for Mr. Muhoho for the 2nd defendant

Mr. Karingithu h/b for the 1st defendant

Mr. Makori for the 3rd defendant

Court assistant - Lydia