Hezekiah Omondi v Vincent Ogutu Onyango [2014] KEHC 5554 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUSIA.

ELC. NO. 108 OF 2013 (Formerly HCC.67/2013)

HEZEKIAH OMONDI ……………….………….………………. PLAINTIFF

=VERSUS=

VINCENT  OGUTU ONYANGO……………………………..  DEFENDANT.

J U D G M E N T

HEZEKIAH OMONDI, hereinafter referred  to as the Plaintiff, filed this suit against  Vincent  Ogutu Onyango, hereinafter  referred to as the Defendant,  through M/S. Namatsi & company Advocates for;

‘’ (a)     Cancellation  of the Defendant’s  name from land parcel number South Teso/Angoromo/2834.

(b)     The costs of this suit.’’

The Plaintiff claim  is based  on allegations of fraud attributed to the Defendant, whom  he had given the title deed as security for a Kshs.53,000/= debt his son owed in 2007, after which  the Defendant had the land transferred to his names.

The defendant denied the claim and filed a defence. Defendant denied the allegations of fraud and avers that the Plaintiff and his son voluntarily transferred the land to him as payment  for the Kshs.100,000/= the Plaintiff’s  son owed him.  He prays  for the plaintiff’s case to be dismissed with costs.  The defence was filed through M/S. Bogonko, Otanga & co. advocates.

In reply  to the defence  , the Plaintiff denied voluntarily transferring the land to the Defendant.

The Plaintiff testified as PW 1 and had also filed an affidavit sworn on 19th August, 2013 summarizing his evidence.  He called Joseph Joshua Mwanza, who testified as PW 2 and  who had also filed evidence affidavit sworn also on 19th August, 2013. Defendant testified as DW 1 and relied on his evidence affidavit sworn on 15th August, 2013.

SUMMARY OF PLAINTIFF’S  CASE.

That  some years back, PW 2, who is a son to the Plaintiff was contracted by Defendant to do some furniture  at Kshs.107,000/=.

That  PW 2 did work valued at Kshs.54,000/= but was unable to clear the remainder. The defendant  reported the matter to the police who started looking for PW 2.

That  Plaintiff offered the Defendant a security  for the debt of Kshs.53,000/= in the form of his title deed for land parcel south  Teso/Angoromo/2834 as he feared PW 2  would lose his job with Teachers Service Commission if he  was arrested for the debt.

That later, Defendant asked  the plaintiff to sign some  documents and copy  of his identity card claiming that they needed  an agreement to allow him hold the title deed.

That  in the year  November, 2010,  PW 2  called Defendant  to pay him the debt but Defendant  declined.  Later, when  Plaintiff and PW 2  went to lands  office to check the status of the land, as  Plaintiff wanted to sell a portion to meet the expenses of his daughter’s  burial, he  found the land had been transferred into the Defendant’s  names.

That  when  he approached the Defendant,  he was  unco- operative and demanded to be paid  Kshs.1,000,000/= if plaintiff wanted the land back.

That Plaintiff instructed counsel to make a follow up and when he got copies of the documents used in the transfer, he  discovered they were forgeries as he had not given Defendant his  passport photograph yet  there was one. That  the  PIN number used was different from his. That  he had not attached the Land Control Board Consent. That he had not gone to Ingosi N. Luhombo advocate who  had allegedly witnessed the transfer form.

That  his PIN certificate was number A006232912C while the one on the transfer  documents was A001189484D.

That  the Plaintiff filed a caution on the land on finding Defendant  had transferred it to his name but the caution was later lifted by the Land Registrar in 2012.

10. That Plaintiff  had not sold the land to the Defendant and that he had not  transferred it to him knowingly.

SUMMARY OF DEFENDANT’S CASE.

That  in 2003 he contracted PW 2, who is his cousin, to do some furniture for him and  paid  him Kshs.100,000/=.

That over a year later, PW 2 had not completed the work and that he reported matter to the police.

That Plaintiff, on  discovering that the matter had been reported to the police, offered a security for the remaining work by depositing the title deed with Francis  Wafula.

That PW 2 failed to do the work and when Defendant wanted to revive the matter with the police, Plaintiff  pleaded with him and  offered to transfer the land to him in settlement of the matter.

That Defendant accepted and in the company of  plaintiff and PW 2 went to Land Office and signed all the relevant forms and left them with one Barasa who works in the lands office.

That he  was subsequently issued with the title deed on 23rd July, 2008 and that  the transaction was therefore  lawful.

That he had no land sale agreement with Plaintiff and did not pay him any money for the  land.

That  Plaintiff was to transfer to him another piece of land whose size   was two plots but sold it to another person instead. He added that he should be allowed  to keep the land subject matter of the suit.

That all the papers for Land Control Board and transfer were signed at the lands office and none at the Plaintiff’s home.

10.  That the  Plaintiff and his son attended the Land Control Board.

11. That he could not remember how the transfer  forms were taken to M/S. Ingosi & company Advocates

SUMMARY  OF PLAINTIFF’S COUNSEL SUBMISSIONS.

That Plaintiff gave the Defendant  the title deed of the suit land as security for the money paid to his son, PW 2, by the Defendant. This  was to safeguard PW 2  job with the Teachers Service Commission as Defendant  had involved the police in the matter.

That the events described and anomalies found in the documents of transfer shows that the plaintiff did not voluntarily transfer  the land to the Defendant.

That  section 3 of the Law of Contract, Cap 23 of Laws of Kenya requires agreement for  sale of land  be in writing  and there was no written sale agreement between the Plaintiff and Defendant in this case.

That  Defendant had engaged in illegal and fraudulent transactions when he transferred  the land to his names.

SUMMARY OF DEFENDANT’S  COUNSEL SUBMISSION.

That the suit land was transferred to the Defendant by the Plaintiff  in lieu of Kshs.100,000/= PW 2  owed Defendant.

That  the Plaintiff signed all the necessary documents to enable Defendant  transfer the land  to his names at the lands office.

That Plaintiff has failed to prove fraud on the part of the Defendant and asked the court to follow the Court of Appeal  decision of IDDI NDOMBI –VS- WILLIAM MAERO KISUMU C.A.C.A NO. 254 of 1997 where the court  confirmed  the High court  finding that the Appellant had failed to prove that the Respondent  had defrauded him out of his land. The court added that it was the Appellant who was seeking to do defraud the Respondent.

That Plaintiff has  failed to proof fraud  on the part of the Defendant and his case should be dismissed with costs.

ISSUES FOR DETERMINATION.

Whether Plaintiff gave the defendant  the title deed for land parcel South Teso/Angoromo/2834 as security/ guarantee or satisfaction/payment  for his son’s  debt to the Defendant.

Whether  Plaintiff voluntarily transferred  the said land to the Defendant.

Whether  Defendant acquired good title  to the land.

Whether  Plaintiff is entitled  to the prayers or any of the  prayers sort.

FINDINGS.

That  the son of the Plaintiff, who testified  as PW 2, had  an agreement with  Defendant to make him some furniture for which  he was paid for in advance.

That  PW 2  failed to complete  the work forcing Defendant to seek the assistance  of the police.

That  when plaintiff  learnt that police were looking for his son, PW 2, he  approached Defendant and  offered his title deed for the suit property as guarantee for the uncompleted  works value.

That  PW 2  failed completely to complete the work and Defendant indicated he would revive the matter with the police.

That  the Plaintiff and the Defendant never entered into a legally recognized  and enforceable agreement  that could have led  to the Defendant acquiring proprietorship  of the suit land.

That  whatever transfer  documents plaintiff signed  and or handed over to the Defendant, either  at his home or the Land’s  office, were not signed or given out  of the Plaintiff’s free will.  They were obtained by coercion as the Defendant  had involved  the police in a purely commercial transaction with  the aim of forcing PW 2 to pay up or face penal consequences which  would have had negative repercussions on  his  employment as a teacher.

That Plaintiff had no obligations in the agreement entered into  between PW 2 and Defendant  and in the absence of a legally binding arrangement, the Defendant coerced the  Plaintiff into  signing some documents which he used to transfer  the suit land to his names.  The fact that Defendant  and Plaintiff admitted that  they  did not go to M/S. Adungosi Advocate for the signing  of the transfer  forms and the  difference in the PIN  number used to the one in the Plaintiff’s  PIN certificate, goes to confirming  that the process used in effecting the transfer was  not above board. That the admission by the Defendant  that he was to initially only get  two plots but Defendant ended up transferring  the suit land that  is larger  goes to show the Plaintiff did not voluntarily transfer the land to the Defendant.

That unlike the Appellant in Kisumu C.A.C.A No. 254 of 1997,IDDI NDOMBI –vs- WILLIAM  MAERO,  who  had in previous judicial  proceedings  admitted to having sold the six acres  of land to the Respondent, there  is no evidence  to suggest the existence  of a land sale agreement  between the parties in this case over the suit land.  If anything  the plaintiff in this case was not involved in the deal between PW 2 and Defendant and only came in to help his son, PW 2, from being arrested for the debt by offering his title deed as guarantee or security for the outstanding works. However, when finally PW 2 wanted to pay the outstanding debt, Defendant declined and Plaintiff later discovered that the Defendant had transferred the land to his names and hence this suit. The foregoing  facts shows Defendant  did not acquire a good title  over the suit land  as the process was  tainted with fraud and misrepresentation.

From  the foregoing, I find  that the Plaintiff has proved  on a balance probabilities that he was coerced and tricked  by the Defendant through  the involvement  of the police and being asked to sign some document which were used to transfer the suit land  to the Defendant’s names without  his consent. This  amount  to a fraudulent transaction which was attained through misrepresentation.  The Plaintiff is therefore entitled to the prayers sort and l enter judgment  for him against the Defendant in the following terms.

That the Land Registrar,  Busia County,  do rectify the register for South Teso/Angoromo/2834  by deleting the names of the Defendant, Vincent  Ogutu Onyango  and reverting the proprietorship of the suit  land to the names of the Plaintiff, Hezekiah Omondi M. Mwanza.

That the Defendant do pay the Plaintiff the costs of this suit.

It is so ordered.

S. M. KIBUNJA,

JUDGE.

DATED AND DELIVERED ON 3RD DAY OF  APRIL, 2014

IN THE PRESENCE OF;