WW v Severin Kinyanjui Njoroge & Jane Wambui Kibaru [2021] KEELC 3085 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CIVIL APPEAL NO. 17 OF 2019

WW................................................................................................APPELLANT

VERSUS

SEVERIN KINYANJUI NJOROGE...............................1ST  RESPONDENT

JANE WAMBUI KIBARU................................................2ND RESPONDENT

(Being an Appeal  from the Judgment and Decree of the Chief Magistrate Court  of Kenya  at Thika (Mr. M.W Wanjala delivered on 8th February  2019 in Thika Civil case  No. 708 of 2011)

BETWEEN

SEVERIN KINYANJUI NJOROGE................................................PLAINTIFF

VERSUS

JANE WAMBUI KIBARU......................................................1ST DEFENDANT

WW...........................................................................................2ND DEFENDANT

JUDGMENT

The  Appellant  was the  2nd Defendant and the 2nd Respondent was the 1st Defendant  wherein the 1st Respondent had filed  Civil Case No. 708 of 2011  at the Chief Magistrates Court Thika,  against Defendants. The Claim sought for;

a) That the  Land Registrar  Thika be ordered  to lift any caution (restriction on  Ruiru/Ruiru East Block  [...], and  [...]) and register the Plaintiff and  cancel the names of 2nd Defendant   from the register (Green card)  and dispense  with production  of old title deeds in respect  of Parcel number Ruiru/Ruiru East Block  [...] and Ruiru /Ruiru East  Block  [...].

b)  That the Defendants, agent, servant or anybody  claiming under  the Defendants be restrained by way of injunction  from interfering  with the said land  AND the Plaintiff be allowed  to deposit balance  in Court  of Kshs. 120,000/=.

c)  That the Executive Officer to sign all transfer documents to facilitate transfer of the said land on behalf of the Defendants.

d) Costs of the suit be borne by the Defendants  and any other order Court deem fit  to grant.

In his statement of Claim, the Plaintiff (1st  Respondent)  averred that on  4th October 2007, he  entered into an agreement with the 1st  Defendant (2nd Respondent)  for the sale of the suit properties  for Kshs. 320,000/=. That on 4th October 2007, he paid  Kshs. 100,000/=  and on 12th October 2007, he paid another Kshs.100,000/=and a balance was  to be paid upon attending  the Land Control Board for Consent. He contended that the 1st Defendant (2nd Respondent) refused to attend the Board.

Further that on 2nd June 2009, he visited the lands office with the original title deeds and he was informed they are genuine only to be told that the green cards reflect the name of the 2nd Defendant (Appellant). Further, that  the 1st Defendant (2nd Respondent)  informed him that there was  a case filed  in Nairobi HCCC 2809/93, by the 2nd Defendant , and the 2nd Defendant  lost the case as per the Decree dated 29th December 2009. That the Land Registrar ordered the 2nd Defendant (Appellant)  to surrender  the title deed for cancellation  as per the letter dated 15th February  2010,but he has refused to comply.

The suit was contested   and the 2nd Defendant   filed a  Defence dated  20th February 2013, and   denied that  she is of sound mind and averred that   one WKW,  the guardian and the manager of her Estate would represent her. It was denied that the Plaintiff (1st Respondent) was in possession of the of the suit property.  The Court was urged to cancel the title  dated 22nd July 2012, registered in the name of the Plaintiff as the  suit properties legally belong to the 2nd Defendant(Appellant).

From the proceedings of the Lower Court, the 1st Defendant’s (2nd Respondent’s)  Defence was struck out from the records.

After Close of Pleadings, the matter proceeded by way of Viva Voce evidence wherein the  Plaintiff (1st Respondent) called one witness and the  Defendant(Appellant)called one witness

PLAINTIFF’S CASE (1ST RESPONDENT’S)

PW1  Severin  Kinyanjui Njoroge,  adopted his witness statement dated  17th October 2011, and Replying Affidavit dated  3rd May 2011. He produced the share Certificate   No. 3267 and 3268 as Exhibit 1 and testified that the same were issued by Nyakinyuaand he got land as a result.  That he bought land from the 1st Defendant and she gave him  a Certificate and Clearance Certificate  which are   for parcels No. 3082 and  3079  That the two Clearance Certificates were issued  on 28th September 2009and were produced as Exhibit 2. Receipts from Nyakinyua as Exhibit  3. That they entered into  a Sale Agreement with the 1st Defendant dated4th October 2007, and 13th May 2009, which he  produced as exhibit  4. He further produced titles for the two parcels issued on 2nd October 1992, as Exhibit 5.

It was his testimony that he got his title through a Court Order, which was issued on 22nd June 2012. He produced the Decree as exhibit 7.  That there were two  titles issued to WW  on 26th August 1988,  and the Land Registrar ordered their recall and cancellation. Letter dated 15th February 2010, was produced as Exhibit 8. That there were other cases in which the  2nd Defendant was suing the 1st Defendant and  2 others  in 1993,  and that she was not of unsound mind in 1993. That the Decree was never reviewed.

He further testified that the earlier Judgment as against the 2nd Defendant was set aside in his absence. That Mr. W had appeared without authority, but eventually got order to act on behalf of W.That he is not a shareholder of Nyakinyua, but only bought the land. That the titles issued to the 1st Defendant were issued in 1988, and the one issued to the 1st Defendant was issued in 1992 and his in 2012. That the 1st Defendant told him that there was case that had been dismissed and the High Court held that the land should remain in the name of the 1st Defendant. That the Share Certificates do not indicate parcel Nos and the register  of Nyakinyua Shareholders did not  indicate the two parcels numbers.   That the 2nd Defendant averred in her affidavit that she did not have  a title  and cannot later claim that she had a title in1988. That the 1st Defendant’s Defence was struck out.

DEFENCE CASE (APPELLANT)

DW1  WKW,  testified that WWis her sister  and she is of unsound mind. He adopted his witness statement dated 20th February 2013. He produced his list of documents as Exhibit 1 to 9. That the parcels number have not been indicated in the register. It was his testimony that for one to get a  title,  a person was required to have a clearance certificate  and he did not have the clearance letters, but he had a share certificate. That he filed the suit with a Power of Attorney and his sister has been of unsound mind from 1979. That his sister was not represented in the High Court Case and she indicate in a Replying Affidavit that the title to the land had already been given to someone else. That they used to till the land, but they have never lived on it until they learnt the Plaintiff had taken it. That he did not participate in the High Court case.

After the viva voce evidence, the parties filed their written submission the and trial Court entered Judgment in favour of the Plaintiff (1st Respondent herein) and stated;

“The Court had occasion to look at the two title documents that were allegedly issued to WW on the 26th  June 10988 (for parcel 3082)  and on 28th June 1988(for parcel  number 3079). Both Titles indicate at the left bottom corner on the 3rd and 4th pages that they were printed in 1990. Two hundred million copies were printed that year. The 2nd Defendant did not render an explanation to Court how the titles were issued before they were printed.

The above observations lead to a conclusion that unlike the plaintiffs case, it is probable that the defendant is not telling the truth as regards ownership of the two parcels of land herein. I am convinced that the Plaintiff’s case has been proven  to the required  standards. I do hereby enter Judgment for the Plaintiff as per the prayers in the Plaint. The Plaintiff shall recover costs from both  Defendants  jointly and severally  together with interest thereon at Court rates from the dates hereof.

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 filed on 20th  February 2019.

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

1. That  the learned Magistrate  erred in Law  and in fact in holding  that the Appellant  had not proved on a balance  of probability that she is the owner  of the suit parcel  of land despite  the overwhelming evidence  and uncontested documents  tendered before him  which sufficiently proved  her case  on a balance of probability  that she is the registered owner of the  suit property.

2. That the Learned Magistrate erred in Law  and in fact  by not taking  into consideration  that the Appellants title to the suit property  was a first registration issued in the year 1988 while the Plaintiff’s title  was issued in 2012.

3. That the earned Magistrate erred in Law and un fact in failing to consider that the 1st Respondent  title as issued  based on a Decree which was later  set aside by the Honourable Court and thus  the said title should be cancelled.

4. That the Learned Magistrate erred in law and in fact by holding that the Appellant’s title was a forgery without subjecting the said Title for authentication yet  an Original Title was tendered in Court.

5. That the Learned Magistrate  erred in Law and in fact  by relying  on a Ruling  of case Number  CMCC Case No. 2809 of 1993  yet the same was not decided on merits but dismissed for want for prosecution  yet the Appellant had satisfactorily explained to the Court  the reasons why the matter  was not prosecuted on time.

6. That the Learned Magistrate  erred in Law and in fact  by conclusively  relying on  the clearance certificate  issued to the 1st Respondent  as the only document  to prove ownership  disregarding  the facts  that there were  two rival  groups of Directors in Nyakinyua Company  and the same could have been issued  by either of them to try and defeat justice being done.

7. That the Learned Magistrate  erred in Law and  in fact  by failing to consider  the principle of  first in time  in that the Appellant had  purchased the property  known as Land  reference Number  Ruiru/Ruiru East Block  [...] and [...]   in 1988 whereas  the 1st  Respondent  claim of the land  is of the year  2009.

8. That the Learned Magistrate  erred in Law and  in fact by failing  to consider  the Appellants  submissions and  exhibited actual bias against the Appellant.

9. That the Learned Magistrate  erred in Law and  in fact by shifting  the burden of proof  to the Appellant herein.

10. That the Learned Magistrate  orders have occasioned  grave injustice

The Appeal was canvassed with by way of written submissions and the  Appellant filed his written submissions through the Law Firm of  Bwogo Manoti  & Associates Advocates  and submitted that the fraud alleged by the 1st Respondent was never proved and neither were the Appellant’s documents  found  to be inauthentic or fraudulently acquired. That a letter to the Appellant purported  to cancel the Appellant’s documents is void  as the Land Registrar has no power  to cancel and or revoke title. That the Court ought not to have cancelled the Appellant’s title for failure to produce a Clearance letter.

It was further submitted that the High Court already made a decision that the Appellant was of unsound mind and it was unjust for the trial Court to visit  on the Appellant’s  mental incapacity as that was not within her mandate and thereby  laying an unnecessary burden of proof  regarding the Appellant’s mental  soundness. The Appellant relied  on the case of Raila  Amolo Odinga & Another….Vs…. IEBC & 2 Others (2017) eKLRand submitted that  by failing to adduce  evidence to show  fraud and or forgery  of the Appellant’s documents,  there was no basis for cancelling the title.

It was the appellant’s submission that the trial Court  erred in  giving a lot of prominence  to a Clearance letter/ Certificate  that was issued in 2009 to the 2nd Respondent  way after both parties had processed title deeds in their names. That the said Clearance Certificate did not serve any evidential purpose as the Court had been called upon to determine  ownership and the Registrar never  considered these documents when issuing titles. The Appellant urged the Court to  find that she holds  the indefeasible title  to  the suit property whose root had not been challenged..

It was further submitted that the Learned Magistrate applied the wrong principle of the evidential  burden of proof  by shifting  it to her to demonstrate how she   acquired her title when  it was the 1st Respondent’s duty to show that it was not genuine. That the trial Court erred in failing  to appreciate the fact  that the Appellant’s title  was issued  back in 1988,  and no evidence adduced to warrant its cancellation.   That the trial Court  ignored the Principle of Stare decisis as set out in  the case of  Gitwany  Investment Limited….Vs….Tajmal  Limited & 3 others s(2006) eklrwhere the Court held that;

“Like equity   keeps  teaching us, the first  in time prevails  so that in the event  such as this one where , by a mistake  that is admitted, the Commissioner  of lands issues two titles in respect of the same parcel of land, then  if both are apparently  and on the face of them  issued regularly and procedurally without fraud save  for the mistake, then the first in time must prevail. it must prevail because without cancellation of the Original Title it retains  its sanctity .”

It was therefore the Appellant’s submissions that she holds an indefeasible title  to  the suit property and no evidence has been adduced to   warrant its invalidation.

The 1st Respondent through the Law Firm of Ishmael & Co Advocates filed his written submissions dated 1st April 2021, and submitted that the  submissions as filed are fatally defective  having been filed by a stranger not on record.

It was submitted that the Appeal is  unmerited and engaging the Court  in a circus without  any terminate position. It was further submitted that  although the  suit properties were intertwined, L.R Ruiru/Ruiru East Block [...],  was not for consideration by the subordinate Court  as the Court in HCCC 2809 of  1993, issued a Decree on 29th December  2009, dismissing  the Appellant and affirming that  Jane Wambui Kibaru  to remain as the registered owner. That the 1st Respondent sued the Appellant and the 2nd Respondent for transfer of the two properties and the 2nd Respondent  upon whomL.R  [...],  was affirmed in her favour  did not contest the title  and thus its ownership should not be reopened.

That the Appellant did not produced any document  showing the trail of how she acquired  the titles to  the suit properties as the register produced in evidence was merely a piece of paper with people’s names. Further that the witness in his evidence confirmed that the share certificate and ballot cards produced in evidence did not indicate the suit properties. The Court was urged to find that the Appellant failed to demonstrate the root of her title. That the Appellant’s witness indicated that the document he was holding  was printed by the Government Printers in 1990, while  the title was issued in1988.  That the green cards produced show different dates in which each one was opened leading to the conclusion that the same were not authentic.

Further the 1st Respondent’s submitted that the issue was  not of titles issued earlier  in time than others,  but whether  one holds a forgery  as title.  That  the Appellant  did not discharge her evidential burden of proof to demonstrate the title as was held in the case of Ahmed Mohammed Noor ...Vs… Abdi Aziz  Osman  where the Court held that;

“…..on the other hand, if evidence  is adduced to  the satisfaction  of the Court  that an election ought to be impugned, then it becomes the burden of the Respondent(s)  to adduce evidence  rebutting the allegation  and to demonstrate  that the law was complied with  and/or that   the irregularities did not  affect the result  of eh election. At that point  the burden is  said  to shift to the Respondents. That is the evidential burden of proof.

The Court was further urged to take Judicial Notice  of the fact that the Appellant  has in other suits utilized  share certificates numbers [...] & [...]and ballot card No. [...]  purportedly from Nyakinyua Investment Group, to acquire other parcels of land, and it is impossible that  the two Certificates can  have one acquire  four parcels of land and counting . The Court was therefore urged to dismiss the Appeal with costs.

The Court has also carefully considered the findings of the trial court, the submissions by the Counsels and finds as follows;-

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 123where 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).

Further as the Court determines this Appeal, it takes into account that it will only interfere with the discretion of the trial Court where it is shown that the said discretion was exercised contrary to the law or 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 ofMbogo vs Shah (1968) EA at Page 93 where the Court held that:-

“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior Court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted on because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

The Court will also take cognizance of the fact that it neither saw nor heard the witnesses and must give allowance to that.

It is not in doubt that both the Appellant and the 1st Respondent are laying claim to the suit property.  It is further not in doubt that both parties have a title deed to the suit property. While the Appellant clams to have been allotted the suit property by Nyakinyua Company Limited and as per the title deeds produced in evidence, she was registered as the owner  in 1988. The 1st Respondent also produced in evidence a  title deed that he bought the suit property from the  2nd Respondent, who was issued with a title deed dated 2nd October  1992.

In the case of Hubert 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.”

From the above decided case, it follows that for  this Court to make a decision on whether the trial  Court erred in its Judgment and either dismiss or uphold the  said Judgment, it must determine which party was able to show that it had a good foundation for the root of their title.

It is evident that both the Appellant and the 1st Respondent produced in evidence their share Certificates. That the Appellant  produced in evidence  two share certificates, a ballot  card  and a copy of the register  of Nyakinyua  Investments Company showing  that she is a member, copies of a green card and  title deeds. The 1st Respondent who testified that he bought the suit property from the 2nd Respondent also produced in evidence share certificates. Sale agreement showing he bought the suit property and a clearance letter dated 28thSeptember 2005, in which the said Nyakinyua Company Limited indicated that  after scrutinizing the documents, it has found that the suit properties were issued to the 2nd Respondent.

From the above, it is clear that while both parties have produced documents to show the root of their title, none of them called any official from the said Nyakinyua Company to shed more light on the situation. However, the 1st Respondent produced in evidence the Clearance Certificate wherein the Company was categorical that the 2nd Respondent was the person who was allotted the suit property. The Court having dealt with various cases that involves land buying Company is cognizant of the fact that a Clearance Certificate is necessary for the registration of a person as a proprietor. And the fact that the Company confirmed that the  2nd Respondent is the bonafide owner of the suit property it would only mean that  the 1st Respondent was able to show the root of her title.

Further  the Court  considers that in showing the root of her title, a party ought to show the right procedure was followed and that the process did not have any flaws. The Court concurs with the   observation of the trial Court that  while the Appellant claims to have acquired title over the suit property in 1988, in 1994  she was swearing an Affidavit stating that she found that the 2nd Respondent had already been registered as the proprietor, when she sought  to have  the suit properties registered to her. How could that be, while the 2nd Respondent was registered as a proprietor in 1992and she claims to have been registered in 1994. Further the trial Court which Court was the one that had the evidence and had the benefit at looking at all the original documents further notes that the  Appellant’s title deeds were  printed in 1990, while she was issued with the same  before they were printed. In her submissions, the Appellant has not controverted these observations by the trial Court and therefore this Court has no reason to interfere with the trial Court’s findings.

In her submissions, the Appellant rightfully submitted that if there are two competing title deeds, the first in time will prevail. It is not in doubt that the Appellant has produced in evidence title deeds issued in 1988. However, the Appellant had the onus of proving the root of her title. She had the burden of proving that her title was acquired procedurally and without any fraud, which in the Court’s considered view, she failed to prove. It follows that the same then seizes to be a case of competing title as  one was not properly issued.

The registration of person as a proprietor vests in them the absolute rights and privileges .However this 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 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.

The law protects title to land, but there are two instances wherein such title can be challenged.  The first is where the title is obtained by fraud or misrepresentation, to which the person must be proved to be a party. The second is where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.  The Court of Appeal in 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.”

Having found that the Respondents properly acquired the title to the suit property, and the Appellant having failed to satisfactorily explain the root of her title, the Court finds that the  title held by the  Appellant ought to be impugned as it was acquired unprocedurallyhaving failed to  satisfactorily show the root of her title, and the trial court did not err in finding for the 1st Respondent.   It is apparent the documentations for allocation of the suit land to the Appellant  are suspect.

Having now carefullyre-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 arrived at a proper determination and this Court finds no reason to upset the said determination.

The upshot of the foregoing is that the Appellant’s Appeal is not merited and consequently the instant Appeal is disallowedentirely and the Judgment and Decree of the trial Court is thus upheld.

On the issue of costs of this Appeal, it is trite that costsusually follow the event and the 1st Respondent being the successful party, the Court awards costs of the Appeal to him.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 3RD DAY OF JUNE 2021.

L. GACHERU

JUDGE

3/6/2021

Court Assistant – Lucy

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 Judgmenthas 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. Njuguna holding brief for M/s Chepngeno for the Appellant

No appearance for the 1st Respondent

No appearance for the 2nd Respondent

L. GACHERU

JUDGE

3/6/2021