IN THE COURT OF APPEAL

AT MOMBASA

[CORAM: KARANJA, GATEMBU & SICHALE, JJA]

CIVIL APPEAL NO. 48 OF 2018

BETWEEN

PETER KIM BAKER..............................................................1^ST APPELLANT

NISHA BALKRISHNA PATEL.............................................2^ND APPELLANT

ASHOK BALKRISHNA PATEL...........................................3^RD APPELLANT

AND

SIDI KATANA BONGO.......................................................1^ST RESPONDENT

BAHARI KATANA BONGO...............................................2^ND RESPONDENT

(Being an appeal from the judgment and decree of the Environment and Land Court of Kenya at Malindi (Angote, J) delivered on 12^th May, 2017

IN

E&LC No. 82 of 2013

***********************

JUDGMENT OF THE COURT

The  appellants  herein  laid   claim   on  two   parcels  of  land   namely, Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114, (the suit lands) by institution of a suit against Sidi Katana Bongo (Sidi) and Bahari Katana Bongo (Bahari) (the then 1^st and 2^nd defendants and now the 1^st and 2^nd respondents). In particular, all the 3 appellants laid claim on title Number Kilifi/Mtondia/1113 whilst the 1^st and 3^rd appellants laid claim on title number Kilifi/Mtondia/1114.

The appellants averred that they are the registered owners of the suit lands, the 1^st and 3^rd appellants having purchased Kilifi/Mtondia/1114 from Kenga Katana Bongo and Gaone Katana Bongo and all the 3 appellants having purchased Kilifi/Mtondia/1113 from Katana Bongo Masha (the deceased).

In a statement of defence and counter-claim, the respondents denied that there was a sale and further averred that Kenga Katana Bongo and Gaone Katana Bongo  (who  are   sons of  the deceased)  had no authority   to transfer Kilifi/Mtondia/1114.

The trial before Angote, J commenced on 12th November, 2015 and Peter Kim Baker, the 1^st  appellant relied on his witness statement filed on 24^th  July, 2015 in which he stated that on 1^st September, 2009, he, together with the 2^nd and 3^rd appellants entered into a sale/purchase agreement with the deceased in which they bought plot No. Kilifi/Mtondia/1113 for a sum of Kshs 7,857,780/= and obtained title on 21^st  January, 2010. Further, that on 15^th  September, 2010, he, together with the 3^rd  appellant   entered into a sale/purchase agreement with Gaone  Katana  Bongo   and Kenga  Katana  Bongo for sale/purchase of Kilifi/Mtondia/1114 for a sum of Kshs 6,000,000/=. They obtained title on 5^th May, 2011.

Then there was P.W.2 Joseph Katana Nzaro, an estate agent. His evidence was that on or about the year 2009, the deceased asked him to sell plot No. Kilifi/Mtondia/1113. He testified that he later obtained instructions from Kenga Katana Bongo and Gaone Katana Bongo for sale of Kilifi/Mtondia/1114. In brief, he is the one who identified the purchasers of the two suit lands, the appellants herein. He is also on record as having stated that towards the end of the year 2009, he attended the deceased’s burial.

In the respondents’ defence, Bahari testified as D.W.1.  It was his evidence that his father (the deceased) had land measuring 13 acres, out of which one acre was sold to one Saidi Hamisi Mohamed (Kilifi/Mtondia/1112); that the remaining 12 acres was subdivided into two parcels of 6 acres each for each of his two wives, one being the 1^st respondent (Sidi) and the other being the mother of Gaone Katana Bongo and Kenga Katana Bongo. According to him, the deceased died on 22^nd  June,  2009,   long before the alleged sale/purchase   of Kilifi/Mtondia/1113.

On her part, Sidi who testified as D.W.3 told the trial court that she was the 3^rd wife of the deceased and that she together with her children live on parcel No. Kilifi/Mtondia/1114. According to Bahari and Sidi, the two respondents, Kenga Katana Bongo and Gaone Katana Bongo are children of the deceased’s 1^st wife.

In a judgment dated 12^th May, 2017, Angote, J made the following findings:

“Considering that the plaintiffs knew or ought to have known before purchasing plot number 1114 that the defendants were living on the suit land and that the land initially belonged to Mzee Masha, they should have made further inquiries before entering into an agreement with the two vendors. The plaintiffs cannot therefore be said to be innocent purchasers for value without notice.

The totality of the evidence that was presented before the court shows that plot number 1114 was fraudulently transferred in favour of Kenga Katana bongo and Gaone Katana, who are the step sons of the 1^st defendant. The two sons of Mzee Masha then transferred the said

land to the plaintiffs, who knew or ought to have known, that the said land had been acquired by the two sons fraudulently.

“For those reasons, I find that the two plots that is Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114 were fraudulently transferred to the plaintiffs.

In the circumstances, I dismiss the plaintiff’s suit and allow the defendants’ counter-claim as follows:

(a) A permanent injunction be and is hereby issued restraining the plaintiffs, their servants, employees, agents or anybody acting through them from interfering with the defendants’ occupation of parcels of land known as Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114.

(b) An order be and is hereby issued to the Kilifi Land Registrar to cancel the Title Deeds that were issued to the plaintiffs in respect of parcels of land known as Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114 and replace them with the names of Katana Bongo Masha (deceased).

(c) An order be and is hereby issued to the Kilifi Land Registrar to rectify the register by cancelling the entries transferring the suit properties to the plaintiffs.

(d) The plaintiffs to pay the costs of the suit and the counter-claim”.”

Aggrieved with the decision of the learned Judge, the appellants moved to this Court and in a Memorandum of Appeal filed in this Court’s Registry on 9^th April, 2018 listed seven (7) grounds faulting the Judge for:

(i) failing to appreciate that the appellants were innocent purchasers for value who had no knowledge whatsoever of any alleged fraud;

(ii) failing to determine the issue of the purchase price paid by the appellants to the registered owners of the two properties and which proceeds of sale the respondents had partly benefitted from;

(iii)  failing to appreciate that the vendors in both Plots were the registered owners at the time and were represented by counsel who executed and attested the sale agreement and transfer thereof as well as the disbursements of the proceeds of sale and no complaint has been made against the said counsel;

(iv) making drastic orders in relation to Plot No. Kilifi/Mtondia/1114 when the vendors thereof had not been enjoined in a Counter-Claim and had not been heard as to the manner in which they acquired the property prior to the disposal thereof to the appellants;

(v) entertaining the Counter-Claim as relates to the title to Plot No. Kilifi/Mtondia/1113 when the respondents had no locus standi as they were not the Legal Representative to the Estate of the late Katana Bongo Masha;

(vi) failing to consider the evidence on record and further for failing to appreciate that the burden of proof lay squarely on the respondents in proving their Counter-Claim.

In their written submissions filed on 28th June, 2018, it was contended that a  written  statement  filed  by  the  1^st  appellant  showed  that  the  appellants purchased the Plot No. Kilifi/Mtondia/1113 from the registered owners, that is Katana Bongo Masha  through a Sale Agreement dated 1^st September, 2009 for a consideration of Kshs 7,857,780.00; that as regards Plot No. Kilifi/1114, this was purchased  from Kenga Katana Bongo  and Gaone Katana Bongo (the deceased’s two  sons)  for  a  consideration  of  Kshs  6,000,000.00 and  that  the  vendors rightfully owned the parcel of land as a share allotted to them by their late father; that upon registration of the transfer in the names of the two, a title deed was issued; that there was sufficient evidence to show that the documents used for the purchase and transfer of titles to the appellants were lawfully acquired; and that there were no registered impediments hindering  the vendors’ right to the transaction of the suit properties. They relied on this Court’s decision of Sophie Wanjiku John vrs. Jane Mwihaki Kimani [2013] eKLR where it was held:

“To succeed in the claim for fraud, the appellant needed to not only plead and particularize it, but also to lay a basis by way of evidence, upon which the Court would make a finding”.

It was contended that in this case, the appellants were in possession of Plot No. Kilifi/Mondia/1113 and were at all material times not in any way privy to any fraudulent acts in relation to the purchase of the suit properties. The appellants reiterated that having lawfully acquired the suit properties and having taken possession of the same, they had undertaken substantial developments thereon of which they are bound to suffer drastic loss in the event that the titles are cancelled and rectified.  It was further contended that the respondents were in temporary occupation of Plot No. Kilifi/Mtondia/1114 and the respondents had executed a deed to vacate the said plot upon receiving payments from the vendors of the suit property.  The appellants faulted the trial court for failure to uphold that the appellants had lawfully acquired title to the suit properties.

On the issue of locus standi, the appellants submitted that since the respondents had not applied for or acquired letters of administration in respect of  the  estate  of  the  deceased,  they  had  no  locus  standi  to challenge  the transactions relating to Plot No. Kilifi/Mtondia/1113 or sustain a Counter-Claim.

They cited Section 82(a) of the Law of Succession Act which provides:

“Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers:

“

(a) To enforce, by suit or otherwise all causes of action which, by virtue of any law, survive the deceased or arise out of his death for his estate”

The appellants submitted that for one to have authority and locus standi to represent and /or bring a suit on behalf of the estate of a deceased, they must have obtained letters of administration. They referred the Court to the Court of Appeal decision in Rajesh Pranjivan Chudasam vs. Sailesh Pranjivan Chudasama [2014] eKLR where it was held:

“It therefore matters not that the respondent had a cause of action. Indeed the issue was not whether he had a cause of action or not but that he lacked the requisite locus standi to seek relief from the Court with first obtaining letters of administration.”

The appellants therefore submitted that the respondents were not properly in Court as they lacked the locus standi to sustain a suit in respect to the estate of the late Mzee Katana Masha Bongo and urged the Court to allow the appeal with costs and to dismiss the respondents’ Counter-Claim with costs to the appellants.

The appeal came before us for plenary hearing on 27^th  May, 2019, Mr. Nyongesa Wafula, learned counsel for the appellants highlighted the appellants’ submissions filed on 28^th June, 2018. He also relied on the list of authorities filed on 4^th July, 2018. Counsel reiterated that the two suit lands were purchased in a span of one year; that Kilifi/Mtondia/1113 was purchased from the deceased vide an agreement dated 1^st  September, 2009; that the deceased attended the Land Control  Board,  who  gave  its  consent  on  3^rd  September,  2009;  that  P.W.2 confirmed that he attended the deceased’s burial towards the end of 2009 and hence the death certificate  dated 4^th April, 2011 indicating the date of death as 23^rd June, 2009 was suspect; that the appellants upon purchase took possession of the suit lands and established a quarry business which they operated for two (2) years prior to the court action.

As for plot No. Kilifi/Mtondia/1114, Counsel contended that this was purchased from Kenga Katana Bongo and Gaone Katana Bongo who had title issued in their names and hence the duo had every right to enter into the sale/purchase agreement of 15^th  September, 2010 with the 1^st  and 3^rd  appellant. Further,   that   the   2^nd   respondent  agreed   to   move   out   of   parcel   No. Kilifi/Mtondia/1114 upon the payment of Kshs 900,000/=. The appellants asserted that they were bona fide purchases for value. It was also the appellants’ position that the two respondents had no locus standi as they had no authority to act on behalf of the deceased before obtaining letters of administration.

In opposing the appeal, Mr. Muchiri, learned counsel for the respondents relied on the respondents’ submission filed on  7^th  September, 2018. It was counsel’s submissions that the sale/purchase of the suit lands and the subsequent transfers were tainted with illegality; that the death certificate No. 028001 issued on 4^th April, 2011 attested to the date of death of the deceased as 23^rd June, 2009; that subsequently,  the death  of the deceased was registered on 30^th June, 2009 and certificate issued on 4^th April, 2011); and, finally that the two brothers (Kenga Katana Bongo and Gaone Katana Bongo) had no capacity to sell land that belonged to their late father without having obtained letters of administration in respect of the estate of their late father.

We have carefully considered the record, the rival submissions of the parties, the authorities cited and the law.

As this is a first appeal, we are enjoined by law to re-evaluate the evidence relied on by the trial court and arrive at our own independent conclusion. In so doing however, we should never lose sight that unlike the trial court, we did not have the benefit of seeing or hearing the witnesses. In Selle vs. Association of Motor Boat Co. of Kenya & others [1968] EA 123 it was stated:

“I) an appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanor of a witness is inconsistent with the evidence generally.

An appeal to this court from a trial by the High Court is by way of a re-trial 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 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 EACA 270”.

Therefore, we would be hesitant to reverse the decision of the trial Judge on findings of facts.  We will only do so if, first, it appears that the Judge failed to take into account particular circumstances or probabilities material for the evaluation of the evidence, or secondly, that the Judge’s impression based on the demeanour of a material witness was inconsistent with the evidence in the case generally; or thirdly, the finding is based on no evidence, or the Judge is shown demonstrably to have acted on wrong principle(s).

For a start, it is common ground that the suit lands were properties of the deceased.  It is also not in contention that Sidi and Bahari were wife and son of the deceased respectively. Kenga Katana Bongo and Gaone Katana Bongo were also deceased’s sons being sons of the deceased’s first wife.  It is also not denied that     Sidi    and   her   children   lived   on   one   of   the   suit   lands,   namely, Kilifi/Mtondia/1114. From  the  record,  title  number  Kilifi/Mtondia/1113 was issued to the deceased (whose ID Number was [.......]) on 13^th March, 2009.

On 21^st  January, 2010, this title was transferred to the three appellants vide a transfer dated 19^th December, 2009 on the basis of an agreement allegedly dated 1^st  September, 2009. The application to the Land Control Board was allegedly signed /thumb printed on 6^th August, 2009 by the deceased and the Land Control Board consent obtained on 3^rd September, 2009. On the transfer document, there is a thumb print allegedly made by the deceased and witnessed by K. N. Waweru Advocate. It is noteworthy that this Advocate was not called as a witness to rebut the evidence that as at 19^th  December, 2009 when he issued the certificate attesting to the deceased’s thumb print, the deceased was no longer alive.

Title number Kilifi/Mtondia/1114, was similarly issued to the deceased on 13^th March, 2009. It is alleged that vide an instrument bearing a thumb print, the deceased transferred this parcel to Kenga Katana Bongo and Gaone Katana Bongo in  consideration  of  Kshs  300,000.00  This  transfer  is  alleged  to  have  been registered on 15^th  June, 2009. It is on this basis that Kenga Katana Bongo and Gaone Katana Bongo became the registered owners of Kilifi/Mtondia/1114. The learned judge summed up the position as follows:

“The totality of the evidence that was presented before the court shows that plot number 1114 was fraudulently transferred in favour of Kenga Katana Bongo and Gaone Katana, who are the step sons of the 1^st Defendant. The two sons of Mzee Masha then transferred the said land to the plaintiffs, who knew or ought to have known, that the said land had been acquired by the two sons fraudulently. For those reasons, I find that the two plots that is Kilifi/Mtondia/1113 and Kilifi/Mtondia/1114 were fraudulently transferred to the plaintiffs”.

Clearly, the two parcels of land belonged to the deceased who had at least two (or 3 wives) – as Sidi said she was a 3^rd wife. Although it was alleged that the deceased transferred plot No. Kilifi/Mtondia/1113, this was long after he had died.

The death certificate showed that the deceased died on 23^rd June 2009 and the registration of his death was made on 30^th June, 2009 and a certificate of death issued on 4^th April, 2011. Having died on 23^rd June 2009, the deceased could not possibly have been present on 1^st September, 2009 to execute the sale agreement, he was also not there to thumb-print the application to the Land Control Board dated 6^th August, 2009 neither did he attend the Land Control Board meeting on 3^rd September, 2009 nor execute the transfer witnessed by Waweru Advocate on 19^th December, 2009. He could not have done these from the grave. It is for these reasons that we find that the purported sale of Kilifi/Mtondia/1113 by the deceased was fraudulent.

As for plot No. Kilifi/Mtondia/1114, it was alleged that the 1^st  and 3^rd appellants purchased it vide an agreement dated 15^th September, 2010 from Kenga Katana Bongo and Gaone Katana Bongo.  It is common ground that the two are the deceased’s children from his 1^st wife. As stated above, this parcel is alleged to have been transferred to the two brothers on 15^th June, 2009 for a paltry sum of Kshs 300,000.00 as indicated on the purported letter of consent dated 19^th March, 2010. However, the undated application to the Land Control Board indicates the estimated value as Kshs 3,000,000.00 and that the land was given to the two by way of a gift. If this be the case, the land control Board consent should not have indicated that Kshs 300,000.00 was the “consideration” between the deceased and Kenga Katana Bongo and his brother Gaone Katana Bongo. It is this same parcel of land that the 1^st and 3^rd appellants allegedly purchased from the duo vide an agreement of 15^th September, 2010 for a sum of Kshs 6,000,000.00 Several issues arise. Sidi and her children live on this parcel of land. Kenga Katana Bongo and Gaone Katana Bongo are from the deceased’s 1^st wife and there is evidence that the 1^st  wife’s house lived on Kilifi/Mtondia/1113 and not Kilifi/Mtondia/1114.

Indeed,  an  attempt  was  made  to  pay  Sidi  money  so  as  to  move  out  of Kilifi/Mtondia/1114.   There is an agreement dated 12^th  July, 2011 allegedly by Kenga Katana Bongo and Gaone Katana Bongo on the one part and Katana Sidi Bongo, who it referred therein as “tenant”. She was to be paid Kshs 500,000.00 so as to move out of the “... property within 21 days”. This agreement is “signed by the owners” (Kenga Katana Bongo and Gaone Katana Bongo) and it is thumb-printed by the “tenants”. There is also  an agreement dated 25^th July, 2011 made before the Assistant Chief, Kilifi between Kenga Katana Bongo and Gaone Katana Bongo who were to pay Kshs 900,000.00 to Sidi. The agreement is referenced “MAPATANO BAINA YA KENGA KATANA BONGO NA MAMAKE MDOGO, SIDI CHANZERA”. Admittedly, Sidi was the deceased’s wife and she resided on parcel No. Kilifi/Mtondia/1114. It was therefore wrong for her to be referred by her two step-sons as a “tenant”. It is our considered view that the two agreements are proof that Sidi & her children lived on parcel known as Kilifi/Mtondia/1114. Contrary to what Kenga Katana Bongo and Gaone Katana Bongo depicted her in the agreement of 12^th July, 2011, Sidi was not a “tenant” on parcel of land known as Kilifi/Mtondia/1114.

Any attempt by Kenga Katana Bongo and Gaone Katana Bongo to sell land where their step mother (Sidi) and her household reside smacks of fraud. In any event, there was no evidence of payment of Kshs 300,000.00 to the deceased by his two sons, Kenga Katana Bongo and Gaone Katana Bongo and as stated above, the application to the Land Control Board indicated that this was a gift to the two by the deceased.  It could not be a gift as this was the land where Sidi and the children lived as opposed to parcel No. Kilifi/Mtondia/1113 where the deceased’s first wife and her children occupied. Again, as shown above, the two parcels of land belonged to the deceased. The position in law is that no person is permitted to deal with property of a deceased person without obtaining grant of letters of administration. Section 45 (1) of the Law of Succession provides:

“45(1) No intermeddling with property of deceased person 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 of, or otherwise intermeddle with, any free property of a deceased person”.

In this matter Kenga Katana Bongo and Gaone Katana Bongo sold property belonging to the deceased. They did not have letters of administration and hence had no authority to sell.  Any sale and/or transfer was therefore void ab initio.

As for the contention that Sidi and Bahari had no letters of administration and hence could not act on behalf of the deceased, our response is simple. It is the appellants who filed suit against the two on the basis that they occupied Kilifi/Mtondia/1114. The appellants cannot now turn round and say that the two have no locus standi having been sued by virtue of being in occupation of Kilifi/Mtondia/1114, they did not need to have letters of administration to defend their right of occupation.