Paskal Ouma Mudaki & 3 others v Habil Ndisi & 10 others [2014] KEHC 3545 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA

AT BUSIA.

ELC. NO. 122  OF  2013. (FORMERLY HCC. NO.5B OF 2006)

PASKAL  OUMA MUDAKI & 3 OTHERS.........................PLAINTIFF

=VERSUS=

HABIL NDISI  & 10 OTHERS....................................DEFENDANTS

(CONSOLIDATED WITH BUSIA CMCC. 482 OF 2010 –

FREDRICK O. ADEMBA & ANOR –V- THE LAND  REGISTRAR, BUSIA & ANOTHER.)

J U D G M E N T.

Through the ‘’second Amended plaint’’ dated  16th February, 2011, Paskal Ouma Mudakhi, Michael Juma Mudakhi, Grace  Auma  Sikuku and Mary Sikuku, hereinafter referred  to as 1st to 4th Defendants  sued Habil Ndisi, Calisto Aleri, Alicio Canory O. Oloo, Moses  Wambani Okwalo, James  Omolo, Joshua  Collins  Nyulia, Pamela  Ademba, John Leonard Okunga, Margaret  Tatu  Olunga and Samuel  Khatenya hereinafter referred  to as 1st  to 11th Defendants  for a declaratory  order that  Bukhayo/Kisoko/740 is property of the estate of Mudakhi Munene Ndege.  They also  pray for eviction orders against Defendants and costs.

The 1st Plaintiff  avers that he was appointed  the administrator  of the estate of Mudakhi Munene  Ndege, hereinafter  referred  to as the deceased, in  requisite  documents for  transmission of the deceased’s  properties to his names. That in about 2006, he discovered the transmission had not been effected. That between 1998 and 2010, the Defendants took possession of portions of Bukhayo/Kisoko/740 without the administrator’s consent claiming they had bought their portions from Teresa Nyangweso Mudakhi, one of the deceased’s widows.  The Plaintiffs avers that the said Teresa Nyangweso Mudakhi did not have the capacity to sell the land to the Defendants as her interest over the land was limited. The Plaintiffs sets out the particulars of fraud attributed to the Defendants under  paragraph 8B of the seconded Amended plaint summarized as follows;-

1. Forging  land sale agreements to show  Teresa Nyangweso  Mudakhi  had carefully  acquired Bukhayo/Kisoko/740  under  the Law of Succession.

2. Forgoing  Land Control Board applications, mutations and transfers’  of portions  subdivided from Bukhayo/Kisoko/740.

3. Corroborating with the surveyor, Land Registrar, District Officer and area Chief  to falsely assort  Teresa Nyangweso’s rights  over Bukhayo/Kisoko/740 to illegally advance their claim over  the suit land.

The Plaintiffs  therefore avers that the agreements  for sale of land do not confer  rights of a purchase  to the Defendant. That  the transfers executed  by Teresa  Nyangweso  did not confer to the Defendants legal title  to the land and therefore none of the Defendant is legally  and lawfully registered as owner  of the portions of  land they occupy. That had  any of the Defendants  occupied the land under license from Teresa Nyangweso, the license ended on 27th April, 2007 when Teresa died.

‘’The Defendants filed their defence  to the second Amended Plaint’’ dated 25th May, 2011.  They  aver that the suit land Bukhayo/Kisoko/740  was at all material  times owned by Teresa Nyangweso Ndaki who  in 1993  obtained the Land Control Board Consent to subdivide it and did subdivide it to Bukhayo/Kisoko/3291 to 3294 and registered  the parcels as follows;

a. Bukhayo/Kisoko/3291 and 3292 - Gabriel Barasa Mudakhi.

b. Bukhayo/Kisoko/3293 – 7th and 8th Defendants.

c. Bukhayo/Kisoko/3294 – Teresa Nyangweso  Ndaki.

The Defendants further aver that the titles to the said parcels were issued by the Lands office which however failed to close the register of the parent title Bukhayo/Kisoko/740.  That the Teresa Nyangweso  latter subdivided Bukhayo/Kisoko/3294 into parcels 4823 to 4825 and registered  them as follows;

a. Bukhayo/Kisoko/4823 – 4th Defendant.

b. Bukhayo/Kisoko/4824 – Teresa Nyangweso Ndaki.

c. Bukhayo/Kisoko/4825 – 1st Defendant.

They further aver that Teresa Nyangweso further subdivided  Bukhayo/Kisoko/4824 and registered  the two parcels arising  there from as follows;

a. Bukhayo/Kisoko/5825 – Teresa Nyangweso  Ndaki.

b. Bukhayo/Kisoko/5826 – 2nd defendant (Calisto Aleri)

That 2nd Defendant  then subdivided  parcel  Bukhayo/Kisoko/5826 and registered the two  parcels  arising  thereform as follows;

a. Bukhayo/Kisoko/5927 – 9th Defendant.

b. Bukhayo/Kisoko/5928 – 3rd Defendant.

That in 1998, one Haron Nyaiyeni Myuliah purchased a portion of land Bukhayo/Kisoko/5035 from Gabriel Barasa Mudakhi which is used by  6th Defendant.

The Defendant’s aver that they took possession of their respective portions and developed them with the knowledge of the Plaintiffs who never challenged their titles during the life time of Teresa Nyangweso Ndaki. That the Defendants are bonafide purchasers for value without notice of fraud and have been in possession for long and Plaintiffs’ suit should be dismissed with costs.

While this suit was subsisting Busia PMCC. NO. 482  of 2010  was filed in that suit Fredrick  O. Admeba and Pamela N. Ademba, who are 8th and 7th Defendants in this suit  are indicated as the plaintiffs  while the land Registrar, Busia  and Attorney General  are indicated as the Defendants the 8th and 7th Defendants prayers is that the District Land Registrar, Busia  be directed to close the  register for Bukhayo/Kisoko/740 and costs. A defence dated 8th November, 2010 filed for the two defendants in Busia PMCC. No.482 of 2010 averring to the following among others.

‘’    7.  The defendants deny  that L.R Bukhayo/Kisoko/740  has given rise to several  other titles  and that the defendants  have failed  to close the register.

8.  In the alternative and without prejudice  to  the foregoing, the  Defendants aver that all action taken  with regard to L.R. No. Bukhayo/Kisoko/740 has been lawful, procedural, and  devoid of mistake.’’

The two Defendants goes to pray that the suit be dismissed with costs.

This court allowed the application dated 19th January, 2011 to consolidate Busia PMCC. 482  of 2010 with this  suit.  I however notice that the status of the Defendants in Busia PMCC. 482 of 2010 was not stated and as they did not participate in the subsequent proceedings they will be taken as Interested Parties.

M/S. Balongo & co. advocates and Bogonko, Otanga & co. advocates  appeared for the Plaintiffs  and Defendants respectively while the Litigations Counsel  filed memorandum of appearance and defence for the Interested Parties. The Plaintiffs counsel filed evidence affidavits of the following;-

1. Paskal Ouma  Mudakhi as PW 1.

2. Florence  Nasimiyu as PW 2

3. Michael  Juma Mudakhi as PW 3

4. Gilbert  Ondari  Ondigo, the  Land Registrar, Busia  as PW 4.

5. Betty Maloba as PW 5 to produce the affidavit of Emmanuel  Murere now deceased which she commissioned on 28th July, 2010.

6. Grace Auma  Sikuku as PW 6 and

7. Mary Nekesa  as PW 7.

For  the Defendants case, their  counsel called the following to the witness box;

1. Habil Ndisi as DW 1

2. Calistus  Cuinis Aleri as DW 2.

3. Alcanory Okwara Oloo as DW 3.

4. Moses  Wambani Okwqaro as DW 4.

5. Harun Myanjeni as DW 5 in support of the defence  of 6th Defendant who is his son.

6. Fredrick  Odemba as DW 6.

7. Christopher  Wabwire Okitwi as DW 7.

8. Serafina Auma Otsieno as DW 8.

Counsel for the Plaintiffs and Defendants had  on 25th June, 2009  filed their eleven statement of agreed issues  dated 22nd June, 2009 which l have considered when coming up with the following issues for determination.

ISSUES.

1. When the 1st Plaintiff was appointed the administrator of the estate of Mudakhi Juma Ndege.

2. Whether the suit land Bukhayo/Kisoko/740  was still in the names of Mudakhi Juma Ndege when 1st Plaintiff was appointed the administrator  of the deceased’s  estate.

3. Whether Teresa Nyangweso  Ndaki  got registered as proprietor  of the suit land Bukhayo/Kisoko/740  and if so when.

4. Whether Teresa Nyangweso Ndaki subdivided  the suit land and transferred the parcels arising therefrom to  among others, some of the Defendants.

5. Whether there was fraud in the process through which  Teresa Nyangweso Ndaki  got registered with the suit land and her subsequent  dealings with the suit land and subdivisions thereof and if so whether the Defendants  knew or were involved in the fraud.

6. Whether  the Plaintiff knew  of Teresa Nyangweso Ndaki  transactions in the suit land Bukhayo/Kisoko/740 and if so whether they are entitled to the orders sort.

7. Whether  the Defendants were bona fide purchasers of their respective parcels and if so whether the 1st  Interested Party  should be ordered to close the register for the suit land Bukhayo/Kisoko/740.

8. Who pays costs in the suits.

SUMMARY OF PLAINTIFFS CASE.

1. That the suit land Bukhayo/Kisoko/740  was first registered  on 21st May, 1971 in the names of Mudakhi Murere, the deceased, who died in 1984.

2. That the deceased also owned Bukhayo/Kisoko/737.

3. That the deceased  had before his death apportioned  parcels Bukhayo/Kisoko/737 to the house of his first wife, Wilimina  Nyongesa Mudakhi and Bukhayo/Kisoko/740  to the house of 2nd and 3rd wives namely Philista  Nyongesa and Teresa Nyangweso.

4. That the 1st Plaintiff who is the elder son of the deceased and the first wife filed a Succession Cause number 75 of 1993  and annexed the  certificate of confirmation of a grant dated 28th November, 1996 in Nairobi H.C. Succession Cause No. 75 of 1993.

5. That  the families of Teresa Nyangweso and Philista Nyangweso to subdivide Bukhayo/Kisoko/740 for subdivision and distribution  but the 1st widows family subdivided  and distributed Bukhayo/Kisoko/737.

6. That the 1st  Plaintiff discovered that the documents he had lodged with the lands office  to transmit the  suit land from the deceased to his names and those of other beneficiaries on 28th September, 1996 had not been registered and were missing.

7. That the 1st Plaintiff obtained certified copies of the grant, form LR 7 and 30  and t6ook them to the Land Registrar and were  registered upon paying Kshs.250 under receipt number 446205 on 2nd December 2006 in settlement  of Busia PM CC. No.298 of 2006 in which he had sued the land Registrar and Attorney General.

8. That the 1st Interested Party registered  the 2nd, 3rd, 4th  Plaintiffs  and Barasa Mudakhi  as registered owners in equal shares  of Bukhayo/Kisoko/740  on 28th September, 2006.

9. That Defendants had all along knew that the land they had bought from Teresa Nyangweso  belonged to the deceased and that Teresa Nyangweso  had no capacity  to sell it.

10.  That Teresa Nyangweso  had  sold the land at throw away prices and the Defendants who have made permanent        constructions on the land did so while aware of the Plaintiffs claim.

11.  That Teresa Nyangweso  and deceased had three sons namely, Peter Michael Sikuku, Gabriel Barasa and Jomo     Mudakhi and five daughters namely Florence Nasimiyu Auma,Seraphina  Auma Otsieno, (Sorofina Tabu),Alexina Anyango,  EVerlyn Nabwire and Beatrice  Auma are  now deceased.

12, That the 3rd and 4th  Plaintiff’s  were widows to Michael Shikuku Mudakhi.

13.   That the 2nd  Plaintiff and other male beneficiaries of Bukhayo/Kisoko/740 have  residences on that land but no title         to the land.

14.  That none of the daughters of the two houses who were to inherit Bukhayo/Kisoko/740  have houses  on that land.

15.  That 3rd Plaintiff had not separated from Michael Shikuku Mudakhi by the time he died.

16.  That the 2nd Plaintiff was to inherit from Bukhayo/Kisoko/740.

17.  That Teresa Nyangweso  had sold and transferred  portions  of Bukhayo/Kisoko/740 to the Defendants before she died  on 24th      April, 2007.

18.  That the  Nairobi H.C. succession Cause  No.75 of 1993 involved  the two parcels of land Bukhayo/Kisoko/737 and 740 but two different certificates of confirmation for each parcel had been issued. Only  the copy of certificate of confirmation for parcel Bukhayo/Kisoko/740  was  however  attached to the evidence affidavits.

19.  That the 1st Plaintiff registered the certificate for confirmation for Bukhayo/Kisoko/737 on 11th June, 1996 under receipt number 530807 and that for Bukhayo/Kisoko/740 on 28th September, 2006 under receipt number 0706443.

20.  That Defendants started taking possession and developing the land they had bought from Bukhayo/Kisoko/740 in 1998 but 1st Plaintiff could not stop them as the Succession Cause documents had gone missing from the Lands Office.

21.  That even though this suit was commenced when Teresa Nyangweso was alive the Plaintiffs could not enjoin her as a Plaintiff as they were not in good terms for having done the transactions involving Bukhayo/Kisoko/740 secretly without involving them.

22.  That PW 2 learnt that the Defendants had settled on her mother’s land (Bukhayo/Kisoko/740 ) in 2000 but took no action to stop or evict them.

23.  That 2nd Plaintiff (PW 3) is the only child of Philista  Nyongesa and has lived in Uganda since 1999 though he retains  a house on Bukhayo/Kisoko/740 he had  built when the deceased was alive.  That his mother Philista   lives in a rented house at Kimilili  whose rent he pays.

24.  That the register  for Bukhayo/Kisoko/740  had been indicated to have been closed  on subdivision to 3293 and 32 94  under entry number 2  on 22nd May, 2006 but that entry was not signed. |that the entry  had thereafter been cancelled by being      cross-out but again  the cancellation was not signed for.

25.  That PW 4, the Land Registrar Busia,  upon being shown the copies  of  titles and certificate  of official searches in respect of the parcels of land registered in the Defendants names, agreed that was an indication that Bukhayo/Kisoko/740  had been subdivided and parcels arising  thereform transferred to various persons.

26.  That PW 4 did  not know why his predecessors  had declined to register the transmission documents issued in Nairob HCC.Succession Cause No. 75 of 1993 until the order compelling the registration was issued in Busia PM.CC. No. 208 of 2006.  The  witness denied having seen the Defendants’ counsel’s  letter dated 13th June, 2013 asking for documents relating to parcels  Bukhayo/Kisoko/3291 to 3294 and all resultant subdivisions  thereof.

27.  That the  3rd and  4th Plaintiffs  were chased away by Teresa Nyangweso  in 1998 after the death of their husband Michael    Peter Shikuku in 1996.

28. That Teresa Nyangweso and her sons Gabriel Barasa and Michael Peter Sikuku sold parcels of Bukhayo/Kisoko/740  after the death of the deceased  but without involving  the 1st Plaintiff who had been appointed the administrator of the estate.

29. That upon  the death of the deceased, all his assets including the suit land Bukhayo/Kisoko/740 became  subject to the   application of the Law of Succession Act,  Cap 160 of L.O.K. To this  end the Plaintiffs  complied with the require mental of the Law and were validly registered as proprietors of the suit land under section 119  (3)  of the Registered Land Act (Repealed).

30.  That Teresa Nyangweso  never acquired  the rights of a proprietor under the Registered land Act (Repealed) and therefore lacked capacity to subdivide  and sell the suit land.  Further the title deeds issued to the Defendants were irregular and illegal as they are not  anchored to know parcel registers contrary to section 32 (1)  of the Registered Land Act     (Repealed).

31.  That the prayers to close the register for Bukhayo/Kisoko/740 cannot  be granted as the Plaintiffs  were not enjoined  as parties to Busia CM.CC 482  of 2010 and were the registered proprietors.

32.  That the transactions between Teresa Nyangweso  and the Defendants  were criminal and in breach of section 45 (1) of the Law of Succession Act.

33.  That the  developments  done by the Defendants  on the suit land cannot be a bar to their eviction.

34.  That Teresa Nyangweso  was not a proprietor of the suit land in terms of the definition of the terms ‘’proprietor’’  in Registered Land Act (Repealed) and had no capacity to execute dispositions documents in respect of the suit land as required under S. 109 (1) of Registered Land Act (Repealed).

35. That the Defendants should not have been issued with title deeds to the portions subdivided from Bukhayo/Kisoko/740  as their names had not been entered in the register as proprietors.

36. That as Teresa Nyangweso  did not confer title of portions subdivided from Bukhayo/Kisoko/740 and as the Defendants did not obtain  the Plaintiffs authority prior to taking possession of those parcels, they should be evicted irrespective of the developments carried out on their respective portions.

37. That Defendants  aided and abetted in forging land sale agreements, letters of consent, transfers, title deeds and   breached the legal provisions relating to dealings in a deceased persons property and the transactions were ineffectual to transfer interest in land as provided  for under section 38 of Registered Land Act (Repealed).

38.  That  to allow the prayers in Busia CM.CC.482 of 2010 without enjoining the Plaintiff’s tantamount to bypassing the Plaintiffs who are registered proprietors and transfer the land to Defendants in contravention of section 37 (1) of the Land Act number 3 of 2012 which requires a proprietor to execute  the document to dispose interest in land.

39.  That the consolidation of Busia  CMCC. No.482 of 2010  with this case did not make the Plaintiffs parties  to that case.

40.  That the certificate of confirmation issued to the 1st Plaintiff in respect of the deceased’s  estate has not  been  challenged and that failure to produce  the letter of administration is not fatal to the plaintiffs  case.

41.  That  the Defendants  had not counterclaimed for cancellation, rectification or closure  of the register of the suit land in this case.

42.  That the two authorities cited by the Defendants’ counsel are irrelevant and in applicable to the circumstances of this case.

SUMMARY OF THE DEFENDANTS CASE.

1. That before Mudakhi  Murere Ndege died in 1984 he had  settled the family of his first wife Wilimina Nyongesa on Bukhayo/Kisoko/737 and that of his second wife Teresa Nyangweso on Bukhayo/Kisoko/740. The acreage for Bukhayo/Kisoko/737 was 4. 0 hectares and that of Bukhayo/Kisoko/740 was 3. 4 hectares.

2. That Teresa Nyangweso succeeded and caused Bukhayo/Kisoko/740 to be registered in her names and on 10th February, 1993 applied to  the Nambale Land  Control Board for consent to subdivide it into four portions. The board granted her consent dated 11th February, 1993 and she subdivided the land into parcels 3291 to 3294.

3. That Teresa Nyangweso retained Bukhayo/Kisoko/3294 in her names and transferred Bukhayo/Kisoko/3293  to 7th  and 8th Defendants names on 17th July, 1996 and Bukhayo/Kisoko/3292 in names of her son Gabriel  Barasa  Mudakhi as trustee for his deceased brother’s  Michael Sikuku Mudakhi’s  family  and  parcel Bukhayo/Kisoko/3291 to Gabriel  Barasa Mudakhi.

4. That 2nd Plaintiff was a child of the deceased born out of wedlock who deceased brought home and stayed with the family of the first wife Wilimina. That deceased later bought an acre of land from Edewa Mania and built a house for him there. That when 2nd plaintiff’s wife  died, he buried her there and moved to  Mbale in Uganda.

5. That the Plaintiffs did not object to Teresa Nyangweso  subdividing  and transferring portions  of Bukhayo/Kisoko/740 and the complainants lodged to the Land Registrar and subject  matter of the letter dated 27th April, 2006 was addressed and transactions cleared by the District Officers  as shown in the letter dated 19th May, 2006.

6. That Teresa Nyangweso  entered into a sale agreement with 1st Defendant on 4th December, 1998 under which she sold 0. 20 hectares  from Bukhayo/Kisoko/3294 to him. She then applied  for and obtained Land Control  Board consent to transfer Bukhayo/Kisoki/4825 to 1st Defendant on 3rd December, 1998.  The 1st Defendant was on 23rd April, 1999 registered as proprietor of the said parcel and title deed issued.

7. That on 12th February, 1999 Defendant made a sale agreement  under which 2nd Defendant bought 0. 2 hectares of land at  Kshs.20,000/= from Bukhayo/Kisoko/3294. That Teresa Nyangweso first subdivided the land to cater for other transactions and was left with Bukhayo/Kisoko/4824 which she subsequently subdivided into parcels Bukhayo/Kisoko/4824 which she subsequently subdivided into parcels Bukhayo/Kisoko/5825 and 5826. That the former parcel was retained in the names of Teresa Nyangweso and the latter parcel was registered in the names of 2nd defendant.

8. That the 2nd Defendant  subsequently subdivided Bukhayo/Kisoko/5826 into  Bukhayo/Kisoko/5927 and 5928. That he transferred the former parcel to  9th Defendant  and the latter to 3rd Defendant.

9. That the 3rd Defendant took  possession of the land he bought from 2nd Defendant  and built a three bed roomed permanent  house on it in 2003. That  upon this suit being filed, he  conducted a search at the land office and obtained  a certificate  of search dated 12th September, 2006 showing he was the registered proprietor of Bukhayo/Kisoko/5928. The  3rd Defendant  also attached  to his evidence affidavit  a letter  from the District Surveyor  Busia/Teso dated 18th April, 2006 resubmitting mutation forms for subdivisions of Bukhayo/Kisoko/740 and 3294  to replace the earlier ones that had gone missing after registration.

10.  That in 1998, the 4th Defendant purchased 0. 86 hectares from Teresa Nyangweso  out of Bukhayo/Kisoko/3294. That  Teresa Nyangweso applied for and obtained  Land Control Board Consent to subdivide    the parcel and subdivided the parcel into Bukhayo/Kisoko/4823 to 4825.  That parcel 4823 was meant to be for 4th Defendant and he    took possession for it in 1996 and has put up permanent building on  it.

11.  That on 10th June, 1998, the father of 6th Defendant  named Harun Nyanjeri  Nyuliah bough 0. 41 hectares of land from Gabriel Barasa Mudakhi out of parcel Bukahyo/Kisoko/3938 at Kshs.37,000/=. That parcel  Bukhayo/Kisoko/3938 was a subdivision  from Bukhayo/Kisoko/740 and the vendor applied  and obtained  Land Control Board consent to subdivide  Bukhayo/Kisoko/3938 into two parcels namely Bukhayo/Kisoko/5034 and 5035 and transferred the later to him after obtaining  Land Control Board Consent  to transfer . that it is on parcel Bukhayo/Kisoko/5035  where the 6th Defendant     resides.

12.  That Bukhayo/Kisoko/3293 which is a  subdivision  from Bukhayo/Kisoko/740  was transferred  to the names of  7th and 8th   Defendants  who are wife and husband  on 17th July, 1996. That the 7th and 8th Defendant took possession of Bukhayo/Kisoko/3293 in 1996 and have  developed it with full knowledge of the plaintiffs who     are taking advantage  of the lands office failure to close the register for Bukhayo/Kisoko/740.  A certificate  of official search for parcel  Bukhayo/Kisoko/3293  dated 27th January, 1999 shows the 7th and 8th Defendant as the registered proprietors and has a note of stay of    registration in the register.

13.  That when Teresa Nyangweso  died in 2007, she  was buried  on   land parcel Bukhayo/Kisoko/5625 which  was a subdivision from      Bukhayo/Kisoko/740.

14.  That Defendants did not know the land Teresa Nyangweso  was selling to them was part of the estate  of the deceased whose administrator was 1st Plaintiff. That the Defendants did not file objection proceedings in the Succession Cause filed by 1st Plaintiff as the  land they had bought was not part of the deceased’s estate.

15.  That the Chief  called a meeting in 2006 which 3rd  Defendant attended. That 3rd Defendant did not hear any of the deceased’s   family members raise objection to the sale of the land by Teresa Nyangweso.

16.  That 7th and 8th Defendants  had bought Bukhayo/Kisoko/3293  from Teresa Nyangweso  without knowing it had come from a parcel registered in the names of a deceased person. That they had conducted an official search on Bukhayo/Kisoko/3293  and found  it was in the names of Teresa Nyangweso  making them believe she had the capacity to sell it to them. That they  filed Busia CMCC. No.482 of 2010 and still prays that the Land Registrar, Busia be directed to close the register  for Bukhayo/Kisoko/740 to reflect  the subdivision arising  from it including  Bukhayo/Kisoko/3293.

17.  That Teresa Nyangweso  had consulted  her children including  the two sons before selling portions of the land she inherited  from the deceased as confirmed  by DW 7 and DW 8.

18. That 1st Plaintiff  filed a Succession Cause in respect  of his mother’s land parcel Bukhayo/Kisoko/737 and 740.

19. That the plaintiffs did not challenge Teresa Nyangweso when she caused Bukhayo/Kisoko/740 to be registered into her names. They also did not challenge  Teresa Nyangweso in the manner she dealt with the suit land up to her death in 2007.

20. That the Defendants  acquired title to the portions they acquired and extensively developed them without the Plaintiffs raising any objections.

21.  That the land  transactions between  Teresa Nyangweso  and the Defendants received the requisite consents of Nambale  Land Control Board and that Defendants obtained title to their parcels after paying valuable considerations and without knowledge of omission, fraud  or mistake on the part of the vendor and or the lands office.

22.  That the 1st Plaintiff  have failed to produce  a copy of letters of administration as required under section 79 of the Law of Succession Act Cap 160  L.O.K and has therefore failed to prove he is the administrator of the deceased’s estate.

23. That at the time of issuance of confirmation of grant on 28th November, 1996 to the Plaintiffs, Bukhayo/Kisoko/740  was not a  ‘’free property’’ of the deceased’s estate as the same had been  registered in the names  of Teresa Nyangweso and subdivided  into Bukhayo/Kisoko/3291 to 3294.

24.  That the title  of Teresa Nyangweso  to Bukhayo/Kisoko/740 could only have been challenged through  a direct suit against her and not by Suing the Defendants who had acquired  title to the land for valuable consideration and taken possession.

25.  That the court should exercise  its powers under section 143 of Registered Land Act  (Repealed)  and order rectification as no fraud attributable  to the Defendants  has been proved. The Defendants counsel referred to the Ugandan  case of Kampala Bottlers ltd –V- Damanico  (U) E. ALR (1990 -1994)141 where  the court held;

‘’ To impeach the title of a registered proprietor of land, fraud must be attributable to the transferee, either directly  or by necessary implication. The transferee must be guilty of  some fraudulent act or must have known of some act by somebody else and taken advantage of such act. The burden of proof of fraud must be heavier than a balance of  probabilities generally applied in Civil matters.’’

26. That the Plaintiffs  have admitted that the Defendants paid monies to Teresa Mudakhi as purchase price for the portions of the land they occupy and that Teresa Mudakhi executed  the instruments  of transfer to the Defendants  favour  but counter that  by saying the documents  of transfer were null and void and could not confer any interests to the Defendants in respect  of the suit land.

27.  That it is  not the duty of the Defendants  to explain  how Teresa Nyangweso  got registered with the suit land  without obtaining letters of administration in the estate of the deceased. That the plaintiffs should have taken the issue up with Teresa Nyangweso when she was selling the land. This was especially so for the 1st Plaintiff if   indeed he was the administrator of the deceased’s estate.

28That the Defendants were not under an obligation to inquire as to how  Teresa Nyangweso  acquired the registration with the land she was offering to sell to them.  It  was enough for the Defendants to satisfy themselves that indeed  she was the registered proprietor  and  that the land exists  on the ground.

29.  That if Teresa Nyangweso  obtained  the registration  of the suit land in her names by omission, fraud or mistake, the plaintiffs  have not   proved that are Defendants were implicated and had  any knowledge of the omission, fraud  or mistake or that the Defendants  caused such omission, fraud or mistake or substantially contributed to the omission, fraud or mistake.  The Defendants  counsel cited the Court of Appeal decision in Maingi Mutisya Nzioka  -V- Mbuki Kisavi  Nairobi. C.A.C.A No. 97 of 2004 where the court held;

‘’  Under Section 143 of the Registered Land Act, the High Court (by dint of Section 159  of the said Act) has jurisdiction to order rectification of the register of land where  it is proved that a particular registration, not being a  first registration, was obtained, made or omitted by a fraud or mistake.  As the Appellant  herein was himself implicated in the fraud, and not being an innocent purchaser for value, he  would be unable but for the first registration, to resist the rectification by order of court  that should flow from the  finding of fraud.’’

30.  That the Plaintiffs  are stopped  from challenging  the Defendants title      to the suit land as they failed to challenge the transactions done by Teresa Nyangweso and Gabriel  Barasa  Mudakhi when they were     selling the portions from the suit land Bukhayo/Kisoko/740.

31.  That the register for Bukhayo/Kisoko/740 was left open by omission and or mistake  on the part of the Lands Office and this court should order  its closure  as prayed for by 7th and 8th Defendant in Busia CMCC. 482 of 2010.

32.  That the 1st, 2nd, 4th, 7th and 8th Defendants  bought their portions of  land from Teresa Nyangweso  while 3rd and 5th Defendants  bought  theirs  from the 2nd  Defendant and the portion occupied by the  6th Defendant was bought from  Gabriel Barasa  Mudakhi. That  at the time of the sale, the sellers/vendors were the registered proprietors of the parcels  they sold to the respective  Defendants.  That Plaintiffs  have not prayed for an order to cancel the Defendants titles and the court cannot grant prayer not sought by the parties.

33.  That the prayers  sought by the plaintiffs in the second Amended  Plaint cannot be granted against Defendants  as they are holders of valid titles to parcels  of land created from Bukhayo/Kisoko/740.

FINDINGS.

Having heard the evidence  adduced by the  parties and witnesses who testified before the court,  the contents of the evidence  affidavits filed by the parties and the annextures thereto plus  the submissions by both counsel, the court finds as follows;

1. That as  confirmed by the Land Register, Busia County, who testified  as PW 4, the suit land Bukhayo/Kisoko/740  was on first   registration registered in the  names of Mudakhi  Murere, who is the deceased herein, on 21st May, 1971. That the deceased also owned Bukhayo/Kisoko/737 by the time he died in 1984.

2. That upon the death of the deceased, his  estate including the two parcels of land listed in (10 above  were to be dealt with as provided under the Law of Succession Act Chapter 160 Laws of Kenya.

3. That the deceased family members are  an agreement that the deceased had indicated his preference when alive on how he wished  his estate to be  shared among his widows and their children. That Bukhayo/Kisoko/7378 was to be inherited by the house of his first widow Wilimina while Bukhayo/Kisoko/740was to be inherited by the house of the second widow Teresa Nyangweso. There was mention of a third widow namely, Philista, by the Plaintiffs but those from Teresa’s house  disputed. It is notable  that the  said Philista was reported to have left the deceased’s  properties and gone to live in a rental premised paid for by PW 3 and that she has not lodged any claim over the decease estate.

4. That the deceased, having made his preference on how he wished his estate to be shared , and his family members not apparently appeared to disagree with  his arrangement,  what remained of the heirs of the  estate was to move in accordance  with the law of Succession Act Cap 160 and distribute  the estate. The Plaintiffs  case is that the 1st Plaintiff being the deceased’s  eldest son, filed a Succession Cause and was appointed the administrator of the deceased estate in Nairobi H.C. Succession Cause No. 75 of 1993.

5. That though the 1st Plaintiff claim that he had after obtaining the necessary documents from the Succession Cause filed them in the Lands office for purposes of transmitting the title for Bukhayo/Kisoko/740 to the names of the heirs in 1996, this  claim is not supported by evidence availed before this court.  Unlike  in respect of Bukhayo/Kisoko/737 where  he exhibited a filing receipt  dated  11th June, 1996, the  relevant receipt  in respect o f Bukhayo/Kisoko/740 he annexed  is dated 28th September, 2006.

6. That the certificate of confirmation of grant exhibited by the 1st Plaintiff and said to have been issued in Nairobi H.C. Succession Cause No. 75 of 1993 has only one parcel of land that is Bukhayo/Kisoko/740 for distribution. The court was only told of one succession Cause having been filed for the estate  of the deceased and is left wondering of the whereabouts of the certificate of  confirmation of grant in respect to Bukhayo/Kisoko/737. This is a critical and important  issue that the Plaintiffs ne3eded to set straight as the process  this court knows is that only one certificate of confirmation of grant is issued in each Succession Cause setting out the distribution of an estate.

7. That the Succession documents were filed in Bukhayo/Kisoko/737 on 12th June, 1996 and 2nd December, 1996 as confirmed in the copy of the register annexed to the evidence affidavit of DW 7. The 1st Plaintiff has indicated that he had also lodged similar set of papers in respect of Bukhayo/Kisoko/740 which were later found missing in 2006.  It is also in that year that he found the documents had not been registered meaning the heirs as ascertained in the certificate of confirmation of grant had not been registered as proprietors.  On conducting further enquires he discovered that the Defendants had occupied portions of Bukhayo/Kisoko/740 without his consent or that of the other Plaintiffs and commenced these proceedings.

8. That it is clear the Defendants  were not authorized by the 1st Plaintiff  as administrator or  the other Plaintiff as heirs of the deceased estate to occupy the suit land.  The 1st, 2nd 4th, 7th and 8th Defendants  claim their right from Teresa Nyangweso  who was one of the widows of the deceased. The 3rd and 5th Defendants claim their right from the 2nd Defendant  as  he sold to them  the portion he had bought from Teresa Nyangweso. The father  to the 6th Defendant claim his right for the portion occupied by 6th Defendant from Gabriel  Barasa Mudakhi now deceased and a son to Teresa Nyangweso.  Gabriel  Barasa  had also obtained  the land from which he sold a portion to 6th Defendants father from his mother Teresa Nyangweso.   The foregoing  shows clearly that all the parcels  the Defendants occupy, hold title to and from which the Plaintiffs  want them evicted  arose from Bukhayo/Kisoko/740.

9. That there is no evidence  presented  before this court to show the process Teresa Nyangweso  followed to have the  land  that her deceased husband had left  for her family’s  distribution transferred to her names. The brother to Teresa Nyangweso  and daughter  to Teresa Nyangweso  testified as DW 7 and DW 8  respectively and neither of them had any information. They only said what  the Defendants have consistently said that Teresa Nyangweso  had title  to the parcels  of land she was selling and that due  process including written sale agreements, Land Control Board Consents and official searches at the lands  office were conducted.

10. That as  the deceased had died in 1984 and  the Law of Succession Act Cap 160 of L.O.K  had commenced  on 1st July, 1981, the interest of Teresa Nyangweso  as a widow to the property meant for her house, that is, Bukhayo/Kisoko/740  was only  life interest as  provided for  under sections 35 of the said Act.  A surviving spouse power  to dispose of property under section 37 of the Act which states;

1. ‘’ 37. A surviving spouse entitled  to a life interest   under the provisions of section 35 or 36, with  the  consent of all co-trustees and all children of full age, or  with the consent  of the court, may,  during  the period  of the life interest, sell any of the property subject  to that interest if it is necessary for his own, maintenance;

Provided that, in the case of immovable property, the exercise of that power shall always be subject to the consent of the court.’’

There is nothing provided to this court to show that indeed Teresa Nyangweso had followed  the provisions of the Law in the process of being registered  as proprietor of   Bukhayo/Kisoko/740. Had  that been the case, the title would have noted that her interest  was only  a life interest would have been forced to seek the concurrence of her children including DW 8 or consent of the court to  sell the said land.

11.  That having found as in (10) above and noting that some of  the Defendants had been issued with title deeds to the parcels which are subdivisions from  Bukhayo/Kisoko/740, the court can only conclude that Teresa Nyangweso  had in collusion with a person or persons in the Land Registrars  office, Busia, without following the due  process got registered as the proprietor  of parcel Bukhayo/Kisoko/740. That in the process the lands office created registers under which Bukhayo/Kisoko/740 was subdivided with further sub divisions on the parcels arising therefrom.  It was from the registers created  through this process that the certificates of official searches obtained  by some of the Defendants herein were  delved from.  All along, the original  register  for Bukhayo/Kisoko/740  was left intact as confirmed  by PW 4.

12.  That the  process by which Teresa Nyangweso  got a register created showing, she  was the registered  proprietor of Bukhayo/Kisoko/740  must have been through fraudulent means involving an officer  or officers in the Busia  County Land office. It was through the collusion of the Lands office that subsequent titles from subdivisions  arising  from   Bukhayo/Kisoko/740 continued to be processed and certificates of official searches  issued. Had  the Plaintiffs especially the 1st Plaintiff been diligent enough, Teresa Nyangweso could have been prosecuted  for intermeddling with the property of a deceased person under Section 45 (2)  (a) of Law of      Succession  Cap 160 of L.O.K.  Alternatively action would  have been taken early enough to stop the intermeddling  as the property of a deceased person is protected under section 45 of  said Act which states.

‘’  45(1) Except  so far as expressly authorized by this Act, or by any other written law,  or by a  grant of representation under this Act, no person shall for any purpose, take possession or dispose off, or otherwise  intermeddle with,  any free  property.’’

13. That for reasons not disclosed  to this court by the Plaintiffs,   they did not find it necessary to enjoin  Teresa Nyangweso in   this suit. Even the Defendants did not apply to enjoin  her even   though  she was alive until April, 2007 when she died. The  Defendants must have know about the history of the suit land as they have all except the 8th Defendant  indicated that they hail from Nambale. It is in that neighbourhood that the suit land     is situated.  There was also the complaint that resulted to the   Land Registrar and District Officer writing the letters dated 27. 4.2006 and 19. 5.2006. |The 7th and 8th Defendants filed  Busia PM.CC No.482 of 2010  against the Land Registrar and Attorney General to compel  the office to close the register for Bukhayo/Kisoko/740 on the realization that it was still open.   The  fact that the register  had not been closed meant all the subdivisions that had been created from  that parcel had not    been registered.

14. That looking at the documents annexed to the evidence affidavit of 1st Defendant, the court notes the following;

a. That  the space for the signature or mark  for Teresa Nyangweso is blank.

b. The agreement is dated 4th December, 1998 while the letter of consent is dated 3rd December, 1998 which is the day before the agreement.

As usually a sale agreement should come before the Land Control Board consent is granted, the court would have expected the 1st Defendant to officer all explanation and did not. If a signature or mark attributable to the said Teresa is visible on the original copy of the agreement, the Defendant had a duty to present it to the court.

15. That the sale agreement annexed to the evidence affidavit of 2nd Defendant shows he was buying 0. 2 hectares from Bukhayo/Kisoko/3294 but his testimony showed the land he got was a subdivision from Bukhayo/Kisoko/4824. No sale agreement was availed in respect of buying 0. 2 hectares from Bukhayo/Kisoko/4824.

16. That the 4th Defendant did not avail any documentary evidence to   confirm the existence of a sale  agreement between  him and Teresa Nyangweso over 0. 86 hectares from Bukhayo/Kisoko/3294 or exhibit any  documentary evidence to confirm  that Bukhayo/Kisoko/4823 was a subdivision of Bukhayo/Kisoko/3294 and that it was transferred and registered  in his names as alleged in his evidence affidavit.

17.  That  in relation to the documents attached to the evidence  affidavit of Harun Nyanjeni Myuliah father  to 6th Defendant, the  court noted the following;

a. That while in the sale agreement dated  10th June, 1998 Gabriel  Barasa  Mudakhi  the vendor, wrote  his name as a signature  the space for the owner in the application for land Control Board consent to subdivide and no explanation  was offered.

b. There Land Control Board   Consent  to subdivide was not  annexed.

c. That mutation forms show the survey was done on 8th July, 1998 but at the top right corner bears the date of 27th February, 2006 as the date it was registered. The  top left corner carries  the date of 9th September, 1998.

d. The application for Land Control Board consent  to transfer  and the letter of consent  issued thereon are undated.

e. The copy of the transfer bears the date of 9th September, 1998.

The  discrepancies  set  about were not explained  and the     court is  left wondering whether all the transactions were done and   completed during  the lifetime of Gabriel Barasa Mudakhi who    reportedly  died in 1998.

18. That the evidence presented by the Plaintiffs  and the anomalies     noted on some of the documents annexed to the  evidence  affidavits of the Defendants  and their witnesses leads the court to conclude    that the Defendants were not bona fide purchasers for  value for the parcels they claim.  A bona fide purchaser for value  is one who buys a property without notice of another’s  claim to the property.  A  bona fide purchaser has no actual or constructive notice of any defects in or infirmities, claims pr equities against the sellers title  but is one who in good faith paid valuable consideration for property without notice of  previous  adverse claims. The Defendants  herein of the history of the suit land. They  knew of the claims of the Plaintiffs that had culminated to the complaint to the Land Registrar    prompting  the letters  of 27. 4.2006 and 19. 5.2006 and the hearing  that  took place before the chief. They  also knew there were  problems  with the registrations of their transactions at the Lands        Office as the register  to the suit land Bukhayo/Kisoko/740 , from which their parcels had  not been closed.  The Defendants’  may not     directly been involved in the fraudulent transaction under which  Teresa Nyangweso  acquired registration of Bukhayo/Kisoko/740.      They  however knew  that the title  to the suit land and the    subdivisions thereof had been illegally or un procedurally  acquired.   Section  26 of the Land Registration  Act No. 3 of 2012  is relevant     and states;

‘’26 (1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon transfer  or transmission by the proprietor shall be taken by all courts as prima facie evidence  that the person named  as proprietor  of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate and the title of that proprietor shall  not be subject  to challenge except –

a. on the ground  of fraud or misrepresentation  or which the person is proved to be a party, or

b. Where  the certificate of title has been acquired illegally. Un procedurally or  through a corrupt scheme.’’

The  import of this section was recently considered in Elijah Makeri Nyangwra _vs-  Stephen  Mungai  Njuguna & Another  [2013] eKLR whefre Munyao J, answered the question as to whether title is impeachable under section 26 (1)  (b)  of the said Act as follows;

‘’ First, it needs to be appreciated that for Section 26 (1) (b) to be  operative, it  is not  necessary that the title  holder be  a party to the vitiating  factors noted therein which are that the title was obtained illegally, unproceduarally or through a corrupt scheme. The  heavy import of section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder.  It means that the title  of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally or through a corrupt scheme.  The title holder need not have contributed to these vitiating factors. The purpose of section 26 (1) (b)  in my view is to protect the real title holders from being deprived of their titles by subsequent  transactions.’’

I concur with the Learned Judges view.

19. That the titles held by the Defendants for parcels  subdivided  from the suit land Bukhayo/Kisoki/740  were illegally  and unprocedurally    acquired as they are not based on any registers as confirmed  by the Land registrar  who testified  as PW 4. The certificates of official searches obtained by  the Defendants in respect of the parcels  they claim were likewise  illegally and unprocedurally acquired as the records maintained at the Lands office shows the suit land Bukhayo/Kisoko/740  has never been subdivided  to crate the parcels they claim to own.

20. That in view of the finding above especially in the (19) the prayers  sought by 7th and 8th Defendants in Busia PMCC. No.482 of 2010  cannot be issued as to  issue the orders would amount to giving  a clean bill of health to transactions that were illegal and unprocedural.

Based  on the foregoing the Plaintiff’s  in this case, ELC. 122 of 2013  (formerly  HCC. No.5B of 2006)  have proved their  case on a balance  of probabilities and the court issues the following orders;

a. A declaration  is hereby issued that the suit land, Bukhayo/Kisoko/740 is part of the property of the deceased  Mudakhi Murere Ndege.

b. That the Defendants  do vacate from the suit land  Bukhayo/Kisoko/740 in ninety (90) days  failure to which eviction orders to issue.

c. That Busia PMCC. No. 482 of 2010 without  merit and is dismissed  with no orders.

d. That due  to the fact that the main architect of the scheme that resulted to this case, that is, Teresa Nyangweso, was not a party  in this suit and in any has since passed on, each party will bear his/her own costs.

It is so ordered.

S.M. KIBUNJA,

JUDGE.

DATED AND  DELIVERED ON 10TH   DAY OF JULY, 2014

IN THE PRESENCE OF;

JUDGE.