Peter Njuguna Kariuki v James Njogu Kagunda [2021] KEELC 3758 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC APPEAL NO. 38 OF 2018

PETER NJUGUNA KARIUKI.............APPELLANT

VERSUS

JAMES NJOGU KAGUNDA.............RESPONDENT

(Being an appeal from the judgement and decree delivered by Hon. G. OMODHO, in Chief Magistrate Court Civil Suit No. 1008 of 2009 on the13th December, 2018)

JUDGEMENT

The Appellant herein Peter Njuguna Kariuki was the Plaintiff in  Thika CMCC No. 1008 of 2009. The Respondent James  Njogu Kagunda was the Defendant.

By a Plaint dated 18th November 2009, the Plaintiff (Appellant) brought this suit against the Defendant (Respondent) and sought for orders that;

a. The Defendant/Respondent do hand over the title deed of Land Parcel RUIRU WEST BLOCK 1/GITHUNGURI/386 to the Land Registrar Thika District for cancellation.

b. Cost of this suit.

c. Interest on (b) at court rates.

In his statement of claim, the Plaintiff (Appellant) averred that he was the registered allotee of the suit property having purchased it from John Riitho Mwaura. That upon payment of the relevant clearance fees, he was issued with Certificate Number 232,Ballot Number 386 and Clearance certificate. That on  30th October 2009,  with the intention of  registering the title, he was informed that  somebody else had fraudulently obtained title deed in his name relating to the suit land. He particularized fraud by the  Defendant(Respondent) as;  registering the suit property   with the Knowledge  that the Plaintiff ( Appellant)  was the owner, colluding with the land office to be so registered; accepting to be registered in the suit land  when the Plaintiff (Appellant)  was cleared by Githunguri Constituency  Ranching Company  Ltd as the owner of the same, accepting title to the same and disregarding the same was  cleared to the Plaintiff (Appellant). That as a result of the fraud, there is a fraudulent title deed and the Plaintiff (Appellant) was apprehensive that the Defendant (Respondent) is likely to carry out prejudicial acts.

The suit was contested and the Defendant (Respondent) filed an Amended Statement of Defence and Counter Claim dated5th May 2016,and denied all the allegations made in the Plaint. He averred that he was the registered owner of the suit property and there was no fraud involved in the transfer. That the Plaintiff (Appellant) fraudulently obtained the sale agreement, ballot paper No. 386 and the Clearance Certificate.

In his Counter Claim, he stated that he bought the suit land from one Wilfred Kaggia  on 1st October 2007,  for Kshs. 360,000/= who originally bought it from John Riitho Mwaura on 29th March 2004. That John Mwaura was the owner of Plot No. 386, denoted by share certificate  No. 341 through Githunguri Constituency Ranching Company Limited. That the registration of the suit property was done in the year 2004, to Wilfred Kaggia  Mwangi, then to the Defendant  in the year 2008.  That the Plaintiff’s/ (Appellant’s) claim lies with the said  John Ritho Mwaura,  who  sold the land twice having sold the same to  Wilfred Kaggia Mwangi in 2004 and a title deed was issued. That the Plaintiff (Appellant) fraudulently entered or encroached on the suit land and put up illegal structures.

In his Counter Claim he sought for orders that;-

a. an order of eviction to issue against the Defendant  his servants, or agents and to be permanently restrained from trespassing, interfering or encroaching on the plaintiff’s parcel of land number RUIRU WEST BLOCK 1/ GITHUNGURI /386.

The matter proceeded by way of Viva voce evidence wherein the Plaintiff (Appellant) testified for himself and closed his case and the Defendant(Respondent) called two witnesses.

PLAINTIFF’S (APPELLANT’S CASE)

PW1 Peter Njuguna Kariukiproduced the witness statement of the late John Riitho filed on 21st October 2011 . He testified that he entered into a Sale Agreement dated  27th March 2009,at the Law Firm of  PW MurageAdvocate  for Kshs. 300,000/= and  he produced the Sale Agreement  as exhibit 1. That he got a Certificate of shares from Githunguri Constituency Ranching Company Limited,which he produced as exhibit 2, Clearance Certificate Exhibit 3 and a letter dated 25th September 2009as Exhibit 4.  That he went to the Lands Registry and  found that the  land was registered to James Kagunda  and there was a previous agreement dated2018 and documents  attached.  Further that  Riitho had been paid Kshs. 50,000/=. That as per the green card entry No. 2, 14th April 2004, Kaggia was to pay by July and that the title is not properly obtained. Further that there is an agreement dated 1st  October 2007, at which time the full purchase price had not been paid.  That they got the title on 22nd January 2008, having bought the land  on 1st October 2007.  He testified that he got the suit property legally from   John Riitho.

He denied ever working at Githunguri Constituency Ranching Company Limited. That he is a shareholder and he bought the land on 27th March 2009 from John Riitho who gave him ballot  No. 386  and share Certificate No. 282. That Riitho’s share Certificate was No. 341and  his was 282.  That he was not present whenRiitho bought the land.  That a charge was  done on  14th April 2004, and there is bankers cheque of  Kshs. 250,000/=.  Further that the property had 4 rooms where Kaggialived.  It was his testimony that at the institution of the suit, he was  in possession of the suit property and he constructed when the suit was ongoing.

On re-examination, he testified that when he bought the land, John’sshare was No. 341, but on agreement for sale it was indicated as 282and the ballot was 386.  That the Defendant had paid Kshs. 50,000/=  but never cleared and John Riitho brought him the documents.

DEFENDANT’S(RESPONDENT’S)CASE

DW1 James Njogu Kagunda testified that he bought the land from  Wilfred Kaggia Mwangi  vide a sale agreement dated  1st October 2007,  for Kshs. 360,000/=. That he conducted a search that confirmed that Kaggia was the owner, but it was charged to Family Bank for Kshs.250,000/=  which  was paid and the title was released. That they went to the Land Control, Board, and processed the title  and  got a title deed in his name.  Further that the suit property had two incomplete rooms, but he never took possession but left a caretaker who informed him that someone was dropping building materials on the site. He produced the sale agreement as Exhibit 1, title deed Exhibit 2, Green Card Exhibit 3,  Cheque of Kshs. 250,000/= as Exhibit 4, receipt  for LCB  dated 18th October 2007 as Exhibit 5, receipt for search as  Exhibit 6  and the Official Search as Exhibit 7. That he was not in occupation of the land because of a Court order.

Further that he bought land fromKaggiaand he was never shown a title deed but it was at the bank and upon payment he got it. That he never got clearance from Githunguri Constituency Ranching Company Limited as it had no role in the transfer.

DW2 Wilfred Kaggia Mwangi testified that   he bought the suit property  on 29th March 2004 for Kshs. 350,000/= and he had no title deed . That it had a share Certificate No. 341 and allotment. Ballot No. 386. That he paid  Kshs.50,000/=  and paid the balance through Family Bank. That they were with Ruth Nzula Riitho,  who signed the  agreement by thumb printing  after which he proceeded to Githunguri Constituency Ranching Company Limited  with Riitho  and handed over original documents to Githunguri Ranching Company  Limited. That he was given title on 14th April 2004,and he processed a loan at Family Bank. That he finished paying Riitho. He produced the Sale agreement as Exhibit 8 and Application for loan as Exhibit 9, banks letter as Exhibit 10. That they gave their original documents to Githunguri Constituency Ranching Company Limited  and they processed the title.

That when they did the agreement, it acknowledged payment of Kshs.50,000/= and another Kshs. 50,000/=  was to be paid on  29th April 2004, and another in July 2004. That he did not have any documents to prove payments of the balances. That he paid Kshs.250,000/=  to  Family Bank when  the Defendant deposited the  balance of the purchase price. That he did not have a copy of the title deed as he already sold  the land. That it is impossible to charge land without any title.

After the viva voce evidence, the parties filed their written submissions and on 13th December  2018, the trial Court entered Judgment in favour of the Defendant (Respondent) and stated as follows;

“In this case   by the chronology  of events  and having had  a chance  to peruse  the said title of the Defendant, the Plaintiff bought  the parcel of land  after the defendant had processed his title and all transactions  were closed. The  evidence availed  by the Defendant  about the sale transaction  seems to me a case for double sale  of the same parcel of land  by the late Riitho. The Defendant has demonstrated good history of the suit land through  the green card  and I am convinced on the balance of probability  that the Defendant title was not obtained through any fraud. I would have no good reason to doubt his exhibits as corroborated by DW2 testimony. Having considered the Plaintiff’s case, I am afraid it would not stand for lack of proper justification against the Defendant so I dismiss the plaintiff’s case. In the circumstances, I proceed to enter Judgment  in favour of the defendant as follows……”

The Appellant was aggrieved by the above determination of the Court and Decree thereon and he has sought to challenge the said Judgment through the Memorandum of Appeal dated14th December 2018, andfiled on even date The Appellant sought for orders that the appeal be allowed, and the Judgement and Decree delivered on the 13th December, 2018 by Hon. G.Omodho (SRM)be set aside and be substituted with;

a.  An order directing the Respondent to hand over the title deed of parcel no. RUIRU WEST BLOCK 1/ GITHUNGURI/386 to the Thika District for cancellation.

b. Costs of this Appeal.

The grounds upon which the Appellant sought for the Appeal to be allowed are;

a. The Learned Trial Magistrate erred in law and fact by failing to apprehend the facts of the case and the applicable law hence making a wrong decision.

b. The Learned Trial Magistrate erred in law and fact by admitting and granting a counter claim that was filed without leave of court thereby making a wrong decision.

c. The Learned Trial Magistrate erred in law and fact by failing to find that the defendant’s title was tainted by fraud having been obtained through a corrupt scheme and therefore a candidate for cancellation under Section 26 of the Land Registration Act thereby making a wrong decision.

d. The Learned Trial Magistrate erred in law and fact by dismissing the appellant’s case against the weight of evidence thereby making a wrong decision.

e. The Learned Trial Magistrate erred in law and fact by failing to analyze the evidence and rival submissions of parties and failing to give reasons for believing one party as against the other and made a wrong judgement.

f. The Learned Trial Magistrate erred in law and fact by demonstrating open bias in favor of the Defendant and against the Plaintiff, harassing the plaintiff in the course of proceedings thus did not create a conducive environment for a fair hearing.

g. The Learned Trial Magistrate erred in law and fact by dismissing the Plaintiff’s case thus making a wrong decision.

In response to the appeal, the Defendant James Njogu  Kagundaswore a Replying Affidavit  on 25th June 2019  and averred that he is the  registered owner of the suit property . That the land was initially owned by Githunguri  Constituency Ranching Company Limited  for the benefits of its members and that it was initially owned by  John Riitho Mwaura  who held ballot No. 386  and share Certificate 341. That the said Mr. Riitho entered into a sale agreement  with Wilfred Kaggia  Mwangi, who was given all the requisite documents  and he charged his title to Family Bank to secure a title  of Kshs. 150,000/= . That the said Kaggiathen sold the suit property  to him and the  same was transferred to him .

That the Appellant’s case is tainted with contradictions and manufactured documents. That when the Appellant was buying the suit property it was already registered in the names of  Wilfred Kaggia Mwangi, a charge registered to it and land sold to him. That Mr. Riitho’s  share Certificate was 341as depicted by the Appellants documents. ThatRiitho’s statement also had its anomalies  as it stated that he as selling  share certificate  282.  That as per the clearance certificate, the same having been signed  by a Karianjawho was a Secretary of the Board  between 2003 and 2009and acted ultra vires  and signed as Chairman to the Board hence not authentic  as he is facing  mirage of criminal charges  ranging from forging  Company documents.

The Court directed that the Appeal be canvassed by way of written submissions and the Appellant through the Law Firm ofL. Maina Irungu & Co. Advocates, filed his written submissions on the 24th February 2020, and urged the court to abandon clause 2 of the Memorandum of Appeal which states that. The learned trial magistrate erred in law and fact by admitting and granting a counter claim that was filed without leave of court thereby making a wrong decision.

It was submitted that the Appellant’s interest to the land is valid and the title held by the Respondent is not genuine. It was further submitted that when the Respondent was served with a Record of Appeal, the Respondent sought to file a Reply and introduced new evidence which had not been tendered before the trial Court. That the Appellant ought to be given a chance to test the new evidence through cross examination and or offering evidence in rebuttal. The Appellant relied on the case of Kenya  Anti Corruption Commision…Vs… Willesden Investments Limited & Others (Civil Appeal No. 325 of 2013).

It was further submitted that the major flaw in the trial Court Judgment started with phrasing of the issue  for determination as it does not capture the real issue  in dispute. It was the Appellant’s submission that the issue in dispute was whether the agreement between John Riitho  and DW2 had been fully performed and completed or whether it had been breached by  DW2.  Further whether the full purchase price had been paid and the relevant documents executed. That having not grasped the real issue in dispute, the trial Court could not and did not properly analyze the evidence.

It was further submitted that there was an issue of Advocate/ Client confidentiality  and the trial seemed to not have been fair. The Court was urged to allow the Appeal and set aside the decision of the lower Court.

The Respondent through the Law Firm ofKanyi Kiruchi Co. Advocates, filed their written submissions on the 29th June 2020,and submitted that  the Appellant did not take out letters of Administration for the Estate of Mr. Ritho,so at to claim on behalf of his Estate. That the Appellant’s documents are not authentic to warrant the cancellation of the Respondent’s title. It was further submitted that the Appellant has failed to prove that his documents are genuine and his Appeal has no grounds to stand, as the Court is  bound to analyze all evidence as adduced  by the parties. It was the Respondent’s submissions that the Appellant should be condemned to pay costs and ordered to vacate the suit premises .The Court was urged to dismiss the Appeal.

The Court has now carefully considered the instant Appeal and the Supplementary Record of Appeal filed on29th July 2019,and the annexures thereto. The Court has also considered the Respondent’s Replying Affidavit to the Appeal filed on 25th June 2019, opposing the said appeal. In general, the written submissions, cited authorities and the relevant provisions of law and the adduced evidence plus the decision of the Lower Court have been factored in.

As this is a first appeal, it is the Court’s duty to analyze and re-assess the evidence on record and reach its own independent decision in the matter as provided by Section 78of theCivil Procedure Act. See the case of Selle v Associated Motor Boat Co. [1968] EA 123 where the Court held that;

“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif vs. Ali Mohamed Sholan(1955), 22 E. A. C. A. 270).

The Court acknowledges that it  will only interfere with the decision of the trial Court where it is shown that the trial Magistrate misapprehended the applicable law and failed to take into account a relevant factor or took into account an irrelevant factor or that on the facts and law as known, the decision is plainly wrong. See the case of Ocean Freight Shipping Co. Ltd….Vs.. Oakdale Commodities Ltd(1997)eKLR, Civil App.No.198  of 1995,where the Court held that:-

“This is of course not an appeal to us from the decision of the single Judge. The discretion given by Rule 4 is exercised on behalf of the court by a single Judge and for a full bench to interfere with the exercise of the discretion, it must be shown that the discretion was exercised contrary to law, i.e. that the single Judge misapprehended the applicable law, or that he failed to take into account a relevant factor, or took into account an irrelevant one or that on the facts and the law as they are known, the decision is plainly wrong.”

It has been submitted by the Appellant that the Respondent has introduced new evidence at the Appeal stage, which evidence was not adduced at trial. The Appellant also further went ahead to introduce new evidence in rebuttal to the evidence produced by the Respondent. The Court notes that the Appeal stage, an Appellate court is called upon to determine whether the trial Court exercised its discretion properly in arriving at a decision based on the evidence before it. It is thus not in doubt that before a party can adduce new evidence, leave of Court must first be sought. See the case of Otieno, Ragot & Company Advocates ….Vs… National Bank of Kenya Limited [2020] eKLRwhere the Court of Appeal held that;

“Therefore, for a party to adduce additional evidence on appeal, leave ought to be granted by the said court.

In the present appeal, the respondent did not seek leave to adduce additional evidence. It filed an application for review on which it purported to introduce new evidence. No additional evidence could be produced before the learned Judge unless they formed part of the record before the taxing officer as correctly submitted by the appellant. Admission of documents in taxation proceedings is a preserve of the taxing officer under Rule 13A of the Advocates Remuneration Order and on reference, the Judge only deals with what was on record before the taxing officer.”

In the instant case, none of the parties sought the leave of Court to introduce additional evidence at this appeal stage and it is thus the Court’s considered view that since it did  not have an opportunity to determine whether or not the additional evidence introduced by both parties was relevant,  and as no leave was sought and granted before the introduction of the same, the additional evidence introduced are null and void. This is so as the court  sitting as an appellate Court cannot  be called upon to make a determination  on whether or not the trial Court misapprehended the law or took into account irrelevant factors  with introduction of materials that were not before the trial Court.

It is not in doubt that both the Appellant and the Respondent claim to have bought the suit property from John Riitho Mwaura. It has been acknowledged by both parties that the said  John Riitho was the owner. It is further not in doubt that the said John Riitho Mwaura got the said suit property from Githunguri Constituency Ranching Company Limited. The Appellant claims to have entered into a Sale agreement with the said John Riitho in 2007,while the  Respondent alleges that he bought the suit property from Wilfred Kaggia who had bought the suit property from the said John Riitho.

During the trial, the Appellant produced in evidence the witness statement of John Riitho,who stated that  he had sold the suit property from him. The Defendant also produced in evidence through DW2  a Sale agreement that showed that the Wilfred Kaggia  bought the suit property from John Ritho. The Appellant contended that though Wilfred Kaggia  had bought the suit property from  John Riitho, he did not finish paying for the balance of the purchase price and thus the same necessitated the  said  John Riitho to sell the same.

In her judgment the trial Court  opined that the issue for determination, is who did John Riithosell the suit property to and further held that the case seemed to be a case of the vendor selling the suit property twice. It is not in doubt that when a party’s title to property is called into question, the party needs to prove the root of his title. It is therefore the Court’s considered view that the issues for determination are;

1. Who  has proved the root of their title

2. Should the Respondent’s title be cancelled

3. Is the Appeal merited.

1. Who  has proved the root of their title

The Appellant has laid claim to the suit property so has the  Respondent. Respondent contends that he bought the said property from Wilfred Kaggia,who had bought the suit property from John Riitho. In his statement, the said John Riitho(Deceased) stated that he had sold the suit property to the Appellant. Both parties root of title have been called into question as the Appellant has alleged there was fraud while the Respondent has also alleged there was fraud. It thus follows that each has to prove their root of title See the case of Munyu Maina…Vs.. Hiram Gathiha Maina [2013] eKLR, held as follows:

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

Further in the case ofHubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others[2016] eKLR,the Court held that;

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

The Respondent’s root of title stems from that of Wilfred Kaggia. It is the Court’s considered view that the root of Kaggia’stitle must be investigated. The said Wilfred Kaggia avers that he bought the suit property from John Riitho  and had the same transferred to him, To support his claim, he produced in evidence a Sale Agreement dated  29th March 2004. The Court has gone through the said Sale agreement, and Clause 4provides that the handover of the original  Certificate  and to effect transfer  in favour of the purchaser at the Company’s offices was upon receipt of full payment of the balance.  Further  under clause 5,  possession was to be taken upon full payment.

In the said sale agreement, the said John Riitho acknowledged having received only Kshs. 50,000/=.The Respondent has not produced in evidence any document to show that he paid the full purchase price. Further the said Wilfred Kaggia did not produce evidence that clause 4 of the sale agreement was adhered to in that he was handed over the original documents to enable him transfer the suit property in his name. The Court has seen the letter dated 25th September 2009, from Githunguri Constituency Ranching Company Limited, in which it indicates  that Peter Njugunawas the owner having been transferred to by John Riitho. The letter further  states that the Company  did not give any clearance to any other party.

It is not in doubt that for the said Wilfred Kaggia to have the title registered in his name, he needed to get Clearance from the Company. He further needed to have the said John Riitho transfer the said  property to him by giving him all the necessary documentations. No evidence was produced in trial to show how the transfer was effected to the said Wilfred Kaggia,as he did not possess the requisite documentation to  effect the transfer. It is not enough to just waive the sale agreement and the title, the process through which the title was transferred and if the  terms of the agreement were  complied with is key to the root of a proprietor’s title. The Court therefore finds and holds that  the Respondent failed to prove his root of title as the  person he bought from  did not have a proper title having failed to show how the suit property was transferred to him.

On the other hand the Appellant produced in evidence a sale agreement dated 27th March 2009 in which he bought the suit property from John Riitho. The Court has seen the letter dated 25th September 2009, in which the Company acknowledged that suit property was transferred to the Appellant by John Riitho. In his statement, the said John Riithoacknowledged having sold the same to the Appellant. While it is unfortunate that the said John Riitho is no longer available to  shed more light as to how  the transaction between him  and the  said Wilfred Kaggia never came into fruition, the evidence adduced  indicates that  he indeed transferred the suit property to the Appellant. While there is evidence that there was a transaction between him and the said Wilfred  Kaggia, there is no evidence that the transfer  was ever effected to  Kaggiaand therefore  the Court finds and holds that the Appellant has been able to prove the root of his title as he produced documents that show the root of his title and the  same has been backed by the Company.

2. Should the Respondent’s title be cancelled

The Court has already held that  the Respondent has failed to prove the root of  his title. Registration is not absolute as a person must prove that the said Registration was one that was in accordance with the law and the laid down procedures. Section 26(1) of the Land Registration Act which was imported from Section 28 of the Registered Land Act(Repealed) provides;

“The Certificate of Title issued by the Registrar upon registration, to a purchaser of land upon a 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 the proprietor shall not be subject to challenge, except–

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.

In this instant, the Court has already held and found that theroot of Wilfred Kaggia’s title has not been proved  and therefore his title was acquired illegally. The said Wilfred Kaggiacould therefore not be able to pass that which he did not have. See the case of Esther Ndegi Njiru & another …Vs.. Leornard Gatei [2014] eKLR where the Court held that;

“As regards the issue whether the registration of the plaintiffs as the owners of the suit property is absolute and indefeasible and not liable to be challenged.  I would answer in the negative.  Having held and found that the 2nd Defendant fraudulently processed and acquired the title to the suit property in his name my view is that he did not acquire a good title to the property and no interest in the property could pass to him.  The 2nd Defendant therefore not having any good title or interest in the suit property could not pass a good title to the plaintiffs.  The plaintiffs have submitted that the title held by James Kinuthia Waiharo being a first registration was protected under the law and could not be defeated and in that regard make reference to section 28 and section 143 (1) of the repealed Registered Land Act Cap 300 Laws of Kenya.  I have earlier on in this judgment stated that the repealed Acts ceased to have any application from the date of commencement of the Land Registration Act NO. 3 of 2012.

Section 143 Registered Land Act (repealed) for this proposition which provided thus:-

143. (1) subject to subsection (2) the court may 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”

The equivalent to section 143(1) of the repealed Act is Section 80(1) of the Land Registration Act which provides:-

80. (1) subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake”.

The Court having held that the Respondent  did not possess a good title asWilfred Kaggia,could not have passed a good title, therefore finds and holds that the title held by the Respondent ought to be cancelled.

Is the Appeal merited.

The Appellant has sought for the setting aside of the trial Court’s Judgment. In her Judgment the trial Court held that the Respondent had proved that there was enough evidence to uphold his title as the case was that of a double sale. However, this Court has found and held that the Respondent was not able to prove the root of his title.  Therefore the Court finds that the Learned Magistrate misapprehended the Law and facts and arrived at a wrong Conclusion. The Appellant having sought for the cancellation of the Respondent’s title and the Court having allowed the same by finding that the same should be cancelled finds and holds that the Appeal herein is  merited.

The Appellant has also sought for Cost of the Appeal. Section 27 of the  Civil Procedure Act gives the Court discretion to grant costs, but also recognizes that cost must follow the event. While it may be that the   Respondent is an innocent purchaser, there is no doubt that the Appellant has incurred costs and therefore is entitled to the same.

Having now carefully re-evaluated and re-assessed the available evidence before the trial court and the Memorandum of Appeal,together with the written submissions, the Court finds that the trial Magistrate did err and arrived at a wrong decision.

For the above reasons, the Appellant’s Appeal is found merited and consequently the said Appeal is allowed entirely and the Judgment   and Decree  of the trial court are hereby  set aside.

The Appellant’s having  proved his  case, the Court enters Judgment in his favour as prayed in his Plaint dated 18th November 2019, in terms of prayers (a), (b) and(c) of the said Plaint.  The Appellant is also entitled to costs of this Appeal.

It is so ordered.

DATED, SIGNEDAND DELIVERED AT THIKA THIS 8TH DAY OF APRIL 2021

L. GACHERU

JUDGE

8/4/2021

Court Assistant -  Phyllis

ORDER

In view of the declaration of measures restricting court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Ruling has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Njoroge holding brief for Mr. Maina Irungu for the Appellant

No appearance for the Respondent

L. GACHERU

JUDGE

8/4/2021