REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC CASE NO. 32 OF 2018

TERESIA WANGARI MBUGUA..........................................................................PLAINTIFF

VERSUS

JANE NJERI NDUATI................................................................................1^ST DEFENDANT

THE LAND REGISTRAR, THIKA...........................................................2^ND DEFENDANT

JUDGMENT

By a Plaint dated 5^th February 2018, the Plaintiff sought Judgment against the Defendant for the following orders:-

1. That a mandatory order  be issued against the  2^nd Defendant to cancel  and/or  annul the registration made on  the Register in respect  to land parcel  Title No. Ruiru Kiu Block 2 (Githunguri)2622, including the illegal and  fraudulent  subdivisions  resulting  to plot numbers  19506-19525 in the 1^st defendant’s name.

2. That In the alternative  to prayer (1) above, there be reversion of registration  and proprietorship  into the name of  Teresiah   Wangari  Mbugua, as the proprietor.

3. A Perpetual injunction do  issue  against the 1^st defendant, her servants, agents, beneficiaries and/or any persons claiming through them from entering, encroaching, constructing, barricading, occupying, trespassing, destroying, alienating or in any  manner whatsoever dealing with parcel  Title No. Riu Kiu Block 2 (Githunguri) 2622.

4. Mesne profits at Kshs,10,000/= per month  from January 2018.

5. Costs of the suit and interest

In her statement of Claim, the Plaintiff averred that her husband Solomon Mbugua Kiguongo, bought some shares in Githunguri Constituency Ranching Company Limited,  and was issued with a share Certificate No.  4092 and participated in land allocation, balloted and was issued  with ballot No. 2173.   The plaintiff further averred that upon her husband’s  demise on 12^th May  1995,  she approached the land buying  Company and paid Kshs.10,000/=, to have the suit property  transferred in her name  as the rightful heir  and paid for the survey fees.  Being a new shareholder,  she was issued with a Share Certificate  No. B-528,  a clearance certificate  and was granted the go ahead to process the title deed in her name.   That the officials of the Company executed vesting transfer instruments to have the land transferred into her name and registered in her favour.

That upon presenting the  completion documents  for registration  at the 2^nd Defendant’s office,  the documents were declined.  She was informed that  the register of the suit property  had been previously  opened in the name of the 1^st Defendant  and closed on the subdivision of the same into plots No. 19506-19525.   Therefore, the registration in favour of the Plaintiff was untenable. The Plaintiff further contended that the registrations  made by the Defendants were made through fraud, misrepresentation, illegally and unprocedurally  and cannot be allowed to stand. She particularized fraud by the  1^st defendant as; causing the suit property to be registered in her name fraudulently,  forging completion documents and misrepresenting to the 2^nd Defendant  to irregularly cause  to be registered  illegal dispositions, and illegally and unprocedurally  obtaining an illegal  title.

Further that she attempted to take possession but she has been inhibited  by  the 1^st Defendant  who  has bifurcated her from taking possession  pegged on an illegal claim of ownership. The Plaintiff particularized prejudice, damage and loss  as; continued interference with the suit property without reasonable cause,  subdivision of the suit property devoid of  any lawful authority, obstruction of user of the suit property.  That she has suffered  loss and damage and she particularized damages as mesne profit  in the tune of Kshs. 10,000/=.

The suit is contested and the  2^nd Defendant filed  its statement  of Defence dated 25^th April 2018,  and denied all the allegations made in the Plaint. It was its contention that the registration of the  suit land in favour of the 1^st Defendant  was not fraudulent, Illegal nor unprocedural  as it was on the  basis of the documents presented before the 2^nd Defendant  by the 1^st Defendant.  That should the Court find that  the suit land was illegally  and fraudulently registered  in the name of  the 1^st Defendant, then the 1^st Defendant  should indemnify  the 2^nd  Defendant of any liability  arising from such finding. The Court was urged to dismiss the Plaintiff’s suit.

Though served with the suit papers, the 1^st  Defendant did not enter appearance  nor file any Defence.   The matter proceeded by way of viva voce evidence  wherein the Plaintiff gave evidence for herself and called one witness.  The 2^nd Defendant  called one witness and closed their case.

PLAINTIFF’S CASE

PW1 Teresiah Wangari Mbugua adopted her witness statement dated  5^th February 2018  as her evidence  in Court. It was her testimony that  the suit property is hers and that it was balloted  by her husband, one Solomon Mbugua.   She produced the list of documents as Exhibit 1. That after Mbugua died, she paid  Kshs. 10,000/= for the title and she produced the receipt dated 4^th October 2013 as Exhibit 2. Further that she was issued with a share certificate on 11^th October 2013, which she produced as Exhibit 3 and the land was to be registered in her name and was issued with  clearance certificate on 10^th February 2017. It was her  further testimony that when she took the clearance certificate  to the Lands office at Thika Land Registry, she found that the land was registered in the name of the  1^st  Defendant.  Then she instructed her Advocate to file this suit. She denied selling the suit property and that she did not know the 1^st Defendant who is in her land illegally.

That she reported the matter to Githunguri  Ranching Company  Ltd and when she went to the Lands offices, she found that the  land was subdivided  in the names of other persons, but that the lands office noted that the  title was in  the name of the 1^st Defendant.

PW2 John Maina Mburu, the Chairman  of Githunguri  Ranching Company Limited since  12^th September 2009, testified that the suit property is Ruiru Kiu Block 2/ Githunguri/2622,  that it originally belonged to Mbugua Kiguongo, who was issued with a member’s receipt and the ballot card. It was his testimony that on 11^th September 2013, the land was  transferred to Teresiah   Mbugua and they issued her  with a share certificate  No,  B528 dated 11^th October 2013 and a clearance  certificate  dated 10^th February 2017. That the transfer form was prepared and signed by the Director  and it was submitted to the lands office for purpose of issuance of title deed.   That there was no title deed at the lands office.

Further that  another person was fraudulently  issued with a title deed as there was another  green card for a person known as Jane  Njeri Nduati. It was his further testimony that the green card was prepared on 21^st January 2017, in the name of Githunguri  Constituency Ranching Company Limited and was transferred to Jane  Njeri who was not their member. That it is Githunguri Constituency Ranching Company Ltd that submitted the documents to the Lands office and they submitted for Teresiah Wangari and so the land belongs to Teresiah Wangari.

Further that he did not sign the transfer form in the bundle of documents and that the same is a forgery.  That Document No 4, a certificate of incorporation for Githunguri  Constituency Ranching Company Ltd  is certified by an Advocate,  but that they do not do that. That the certificate was certified by an Advocate on 15^th June 2015,  and the  title is issued  on 21^st February 2017. It was his testimony that the transfer forms were certified  in  2015. Further that document No. 5 is another forgery as the handwriting is not for any of their Directors.

DEFENCE CASE

DW1 Robert Mugendi Mbuba testified that he is a Land Registrar stationed at Ruiru  Land Registry.   That he relied on the witness statement by Bernard Leitich,  the former Land Registrar dated 31^st October 2018. He produced the list of documents as Exhibit 1 to 10.

It was his testimony that the suit property is  Ruiru/Kiu Block 2(Githunguri)/2622, and  the registered owner is Jane  Nduati of  ID No. xxxx.   That the register was opened on 21^st February 2017 in the name of Githunguri Constituency Ranching Company Limited and on the same day the land was allocated to Jane Njeri Nduati and a title deed was issued. Further that the documents needed were duly signed transfer form  from Githunguri Ranching Company Limited to the allotee, a clearance certificate and a certified copy of the Identity Card  and Pin of allotee.  That the said documents were submitted and they were used for registration  on 21^st February 2017.

He further testified that he had certified copies of the  Original Documents  and  the said documents emanated  from Githunguri Ranching Company Ltd  as the lands Registry has a seal of the Company and passport photos are affixed.  That they had no reason to doubt their authenticity. He further testified that the land has since been subdivided  into 20 plots  bearing titles no 19506-19525 and the green cards have restrictions in favour of  DCIO Ruiru  prohibiting any dealings  pending investigations on ownership. Further that there is a Caveat Order in ELC 32 of 2018, prohibiting any dealings until the case is heard and determined. He produced the green cards as Exhibit No. 11.

He testified that he has been a Land Registrar from 23^rd February  2015 and he served  in Thika Lands Registry from 7^th March 2016 to 22^nd May 2019  and so he is conversant with the  registration of land in Githunguri and one needed to be a member of the Company. He confirmed that Jane Njeri Nduati did not produce any share certificate but the clearance certificate was from Githunguri Ranching Co. Ltd.  It was his evidence that the copy of the transfer had a  signature that resembles that of the Chairman of Githunguri Ranching Co. Ltd and the seal belongs to the Company.  Further that it took about 5 days for the title to be issued and it was possible for documents to be lodged and a title issued on the same day. It was his further testimony that the title on the document must match  the document lodged and that the title is in the name of  Jane  Njeri Nduati.

Thereafter, the  parties filed written submissions which the Court has  carefully read and considered.  The Court finds the issues for determination are as follows;

1. Who is the Lawful owner of the suit property

2. Whether the Plaintiff is entitled to the orders Sought

3. Who should bear the costs of this suit

1. Who is the Lawful owner of the Suit property

The Plaintiff has laid claim to the suit property and averred that she is the owner of the suit property having bought shares from Githunguri Ranching Company limited, and was issued with a share certificate, a clearance certificate and a transfer form signed in her favour. She also averred that when she presented the said documents before the 2^nd Respondent to enable her to be registered as the proprietor, she learnt that the 1^st Defendant had already been registered as the proprietor of the suit property which registration was fraudulently done.

In  this regard, the plaintiff averred that the registration of the suit property in favour of the 1^st Defendant was fraudulently done and the same ought to be impeached. When a person’s ownership to a property is called into question, it is trite that the said proprietor has to show the root of his ownership. See the case of Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others [2016] eKLR, where 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.’

In the case of Munyu Maina..Vs..Hiram Gathiha Maina, Civil Appeal No.239 of 2009, the Appeal Court held that:-

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

Who between the Plaintiff and 1^st Defendant has certainly shown the root of her title? The Plaintiff has averred that   her deceased husband had bought the shares at Githunguri Constituency Ranching Company Limited and after his death, she took over to which she paid Kshs. 10,000/= which she produced a receipt for.  That as a new member, she was given the share certificate issued on 11^th October 2013, being Share B528 and  she was further given a clearance certificate that was issued on 10^th February 2017. Her evidence has been corroborated by the evidence of PW2, who is the Chairman of the  land buying Company that was the initial allotee of the suit property. The Court is therefore satisfied that the Plaintiff has been able to explain the root of her title.

On the other hand the 1^st Defendant did not defend the suit and therefore   the Plaintiff’s evidence against her remains uncontroverted. However, the 2^nd Defendant had produced some documents in favour of the 1^st Defendants that attempted to show that the 1^st Defendant was  lawfully  registered as the proprietor of the suit property.   It was PW2’s evidence that the documents produced by the 2^nd Defendant that were used by it to register the 1^st Defendant as the proprietor were forgeries. He denied signing the transfer that was certified in 2015, and given that he  was the Chairman of the Company since 2013, the Court is satisfied that  the said documents were forgeries as the purported person who is alleged to have signed it has since denied signing the same.

Further DW2 acknowledged that   for a person to be a member of the land buying Company, the said person needed to possess a share certificate. It was his evidence that in the documentations that were presented for registration of the  1^st Defendant as the  proprietor , she did not present a share certificate and therefore the Court finds and holds that the 1^st Defendant’s root of title has not been established.

The Plaintiff has averred that  the 1^st Defendant has fraudulently registered the suit property in her name.

Was the suit land therefore transferred fraudulently to the 1^st Defendant? ‘Fraud’ has been defined in Blacks Laws Dictionary as;

“Fraud consists of some deceitful practice or wilful device, resorted to with intent to deprive another of his right, or

in some manner to cause him an injury.’’

Further Black’s Law Dictionary Ninth Edition at Page 731 also defines ‘fraud’ as:-

“A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.”

With the definition of fraud in mind and having held that  the 1^st Defendant  documents were forgeries based on the fact that the person that was alleged to have signed them denied signing, It then follows that there were deceitful acts of providing documents that were not genuine or whose authenticity is in doubt and that amounts to fraud.

Having carefully analyzed the available evidence, the Court finds and holds that the Plaintiff herein is the lawful owner of the suit property having satisfactorily explained the root of her title.

2. Whether the Plaintiff is entitled to the orders Sought

The Plaintiff has sought for the cancellation of the proprietorship of the  1^st Defendant and  reversion of the  registration and proprietorship to her.  The Court has already held and found that the Plaintiff is the  lawful owner of the suit property, the registration of the 1^st defendant  having been procured  fraudulently and therefore null and void ab initio.

It is trite that the registration of a person and Certificate of title held by such a person as a proprietor of a property is conclusive proof that such person is the owner of the property. However, the holding of such title is not absolute as the same may be impeached under certain circumstances. Section 26 (1) of the Land Registration Act, which provides;

“The certificate of title issued by the Registrar upon registration, or 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 that 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.

This Court having held and found that the transfer of the suit property to the 1^st Defendant was done through fraud as the root of her title could not be explained, the Court further finds that the titles held by the 1^st Defendants fall under the category of titles that must be impeached. The protection that was provided to the 1^st Defendant by law must then be lifted once the Court holds that there was fraud and misrepresentation of facts. See the case of Alice Chemutai Too …Vs… Nickson Kipkurui Korir & 2 Others [2015] eKLR, where the Court held that:-

“It will be seen from the above that title is protected, but the protection is removed and title can be impeached, if it is procured through fraud or misrepresentation, to which the person is proved to be a party; or where it is procured illegally, unprocedurally, or through a corrupt scheme

I do not see how a person with a perfectly good title should be deprived of his title by activities of fraudsters. It is in fact time to put down our feet and affirm that no fraudster, nor any beneficiary of fraudulent activities, stands to gain for his fraud, and no title holder will ever be deprived of his good title by the tricks of con artists.”

The Court having found and held that the Certificate of title held by the 1^st Defendant was procured by fraud and therefore null and void must then determine whether the said title can be cancelled.

Section 80(1) of the Land Registration Act comes into play herein.  It provides:-

“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.”

This Court is satisfied that the Certificate of title held by the 1^st Defendant was procured by fraud and as such it is impeachable and ought to be cancelled. Further this Court has already held and found that the Plaintiff is the legal owner of the suit property and it is only fair that the register be rectified to cure the fraud perpetrated by the 1^st Defendant and return the suit property to its rightfully owner who has demonstrated how she purchased or earned the same.

The  Plaintiff has also sought for mesne profits. Section 2 of the Civil Procedure Act Cap 21  Laws of Kenya defines mesne profits as follows:-

“mesne profits”, in relation to property, means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but does not include profits due to improvements made by the person in wrongful possession;

Further in the case of Attorney General …Vs… Halal Meat Products Limited [2016] eKLR considered when mesne profits could be awarded.

The court stated as follows:-

“It follows therefore that where a person is wrongfully deprived of his property he/she is entitled to damages known as mesne profits for loss suffered as a result of the wrongful period of occupation of his/her property by another. See McGregor on Damages, 18^thEd. para 34-42.”

The Court notes that the Plaintiff  has specifically pleaded  mesne profits and further  that the plaintiff has proved that the 1^st Defendant has been in wrongful occupation of her property. Therefore the Court finds and holds that the  Plaintiff is entitled to the  prayers   for mesne profits as pleaded.

It is the Court’s considered view that the Plaintiff is entitled to the orders sought.

3. Who should  bear the Costs of the Suit

It is trite that costs usually follow the events. Section 27 of the Civil Procedure Act gives the Court discretion to grants costs. As the successful party is always entitled to costs except in exceptional circumstances, no exceptional circumstance exists in this suit, and thus the Court finds that the Plaintiff being the successful litigant is entitled to the costs of the suit.

Consequently, the Court finds that the Plaintiff has proved her case on the required standard of balance of probability and is entitled to the prayers as sought in the Plaint dated 5^th February 2018.

Having found that the Plaintiff has proved her case on the required standard, the court enters judgment for the Plaintiff against the

Defendant herein jointly and severally in terms of prayers no. 1, 2, 3, and 4 of the Plaint herein.   The Plaintiff is also entitled to the costs of the suit.

It is so ordered.

Dated, signed and Delivered at Thika this 14^th  day of December, 2020.

L. GACHERU

JUDGE

14/12/2020

Court Assistant - Lucy

ORDER

In view of the declaration of measures restricting court operations due to the COVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15^th March 2020, this Judgment has been delivered to the parties online with their consents. They have waived compliance with Order 21 rule 1 of the Civil 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

No appearance for the Plaintiff

No appearance for the 1^st Defendant              Though Notice was issued.

No appearance for the  2^nd Defendant

L. GACHERU

JUDGE

14/12/2020