1.This is an Appeal arising from the decision of the Honourable R. Kefa, Senior Resident Magistrate, Nyeri delivered in Nyeri CMELC Case No. 160 of 2018 on 6th May, 2019. By its Memorandum of Appeal dated 28th May, 2019 as lodged herein on 30th May 2019, Kingsbond investments Limited (the Appellant) urges this Court to set aside the entire Judgment and to declare itself the legal and bona-fide owner of the suit properties on the following 15 grounds:
2.Following directions issued herein on 6th December, 2021 it was agreed that the Appeal be disposed of by way of written submissions. I have accordingly perused and considered the Record of Appeal as well as the rival submissions and authorities placed before me by the Learned Advocates representing the Appellants and the 1st Respondent M/S Homelane Properties Limited. Paul Nthinwa Mumbi, the Nyeri County Land Registrar and the Nyeri County Surveyor named herein as the 2nd, 3rd and 4th Respondents respectively did not take part in these proceedings.
3.By a suit filed in Nyeri Chief Magistrates Court as Environment and Land Court Case No. 160 of 2018, Homelane contended that the property known as Thegenge/Karia/1081 belonging to itself was fraudulently transferred to the 2nd Respondent who thereafter sub-divided the same and thereafter disposed the resultant parcels being Title Nos. Thegenge/Karia/4470, 4471 and 4472 (the suit properties) to the Appellant - Kingsbond Investments Limited. On account of that contention the 1st Respondent sought the intervention of the Court to have those titles cancelled.
4.In rebuttal, the Appellant who was sued as the 2nd Defendant in the said case challenged the 1st Respondent’s claim to the suit properties and asserted that it was the legal, bona-fide and absolute owner thereof having lawfully and properly acquired the same. it was further the Appellant’s position that the 1st Respondent had in its claim made vague and general allegations of fraud against the Appellant and that the claim was hence without basis and that it ought to be dismissed with costs.
5.The 2nd Respondent herein who was sued as the 1st Defendant in the Magistrates Court neither entered appearance nor did he participate in the said case.
6.On the other hand, the 3rd and 4th Respondents denied the 1st Respondent’s accusations of fraud and stated in their Statement of Defence that any action taken by themselves in the transfer, sub-division, registration and issuance of titles was undertaken in the exercise of their statutory duties and were therefore lawful, regular and procedural.
7.In her decision rendered on 5th May 2019, the Honourable R. Kefa, Senior Resident Magistrate found for the 1st Respondent and ordered as follows:
8.Aggrieved by the determination which also awarded costs to the 1st Respondent herein, the Appellant lodged the present Appeal. In their submissions filed in support of the Appeal, the Appellants have reduced the issues raised in their lengthy Memorandum of Appeal to a determination of three issues, namely:
9.Those three are therefore the issues that shall guide this Court in the determination of this Appeal. As was stated in Selle & Another v Associated Motor Boat Company Limited & others  EA 123:
10.From my review and evaluation of the evidence placed before the trial Court, it was apparent that the original parcel of land Title No. Thegenge/Karia/1081 measuring some 0.61 Ha was initially on 10th July, 1989 registered in the Name of a Company known as Bullians Property Consultants Limited. By a Sale Agreement dated 16th November 2010, the said Company sold the land to the 1st Respondent who was subsequently issued with a title therefore on 16th June, 2011.
11.Testifying before the trial Court as PW1, Antony Gichu Wahome, a director of the 1st Respondent told the Court that Bullians Property Consultants Limited was actually a company that was owned by hisparents – Ngatia Wahome and Alice Wahome. It is those two Directors who in 2011 sold the land and transferred it to the 1st Respondent Company in which PW1 and his wife are co-directors.
12.PW1 told the Court they fenced off the property after acquiring it and leased out some semi-permanent structures that were thereon. Sometime in January, 2017 when he visited the land with a contractor intending to carry out some works thereon, he was told that the property was now owned by someone else. PW1 then visited the Land Registry at Nyeri from where he discovered from the Green Card that the land was apparently transferred to one Paul Nthindwa Mumbi (the 2nd Respondent) before being sub-divided into three portions being Nos. 4470, 4471 and 4472 Thegenge Karia.
13.Copies of the Green Cards referred to by PW1 are at Pages 213 to 221 of the Record of Appeal. A perusal thereof reveals that on 7th December 2011, the 2nd Respondent had himself registered as the owner of land parcel No. Thegenge/Karia/2018 and that subsequently on 27th October, 2014 the said title was closed upon sub-division of the land into the three parcels beingThegenge/Karia/4470, 4471 and 4472.
14.The record for the sub-divisions is at Page 216 to 220 of the Record of Appeal and they reveal that the 2nd Respondent – Paul Nthinwa Mumbi was registered as the proprietor thereof on 28th October, 2014. Some four (4) months later on 26th February 2015, the 2nd Respondent is shown to have transferred the three parcels of land to the Appellant herein.
15.As it turned out, the said 2nd Respondent couldt not be traced for service of summons and following an application made in Court, he was served through substituted service in a newspaper. He did not however file any appearance or Statement of Defence. That being the case and given that the 1st Respondent herein denied having sold or transferred the land to the 2nd Respondent, it was unclear how the 2nd Respondent had come to be in possession of the land.
16.While the Appellant herein denied any knowledge of fraud and insisted that it was a bona-fide purchaser for value without notice of any defect in the 2nd Respondent’s title, the Appellant too did not call the said 2nd Respondent as a witness at the trial to demonstrate his bona-fide ownership of the property.
17.Through its director King’ori Mwangi (DW1) the Appellant told the trial Court that they purchased the suit property from the said 2nd Respondent at the sum of Kshs.4.2 Million after conducting due diligence on the same and that an official search on the title revealed that the same belonged to the 2nd Respondent.
18.While that may be true, the official records of the suit property were held by the 3rd Respondent herein – the Nyeri County Land Registrar. The 3rd Respondent produced those records through one Susan Mwanzawa (DW2). In her testimony as contained at Page 22 to 25 of the Record of Appeal, DW2 was categorical that the transfer to the 2nd Respondent was fraudulent. At Page 24 of the Record, DW2 is captured by the trial Court stating as follows during cross-examination by the 1st Respondents Advocate:
19.That having been said, it was apparent that the Appellant did not deal with the registered proprietor of the land in dispute. It was also difficult to agree with the contention that they are innocent purchasers of the land for value without notice of defect in the 2nd Respondent’s title. I say so because at Page 27 of the Record, it is clear from the testimony of the Appellant’s director that they knew the whereabouts of and were in contact with the said 2nd Respondent whom they told the Court was in the United Kingdom. No reason was given for their failure to call him as a witness to come and defend the authenticity of the title he purported to transfer to the Appellant.
20.The evidence of the 1st Respondent is that they remain in possession of the original title deed to land parcel Thegenge/Karia/1081 and that the said land was never transferred to either the 2nd Respondent or to the Appellant. There were no documents in support of any such transfer in the 3rd Respondents records and it is evident no such transfer took place.
21.The law is now settled that a bad title has no property that can pass to a purchaser. It is the duty of that purchaser to conduct full andeffective due diligence to ensure that the person purporting to sell the property is indeed the true owner of the same and that when push comes to shove, the person purporting to sell would be in a position to defend the authenticity of his title. A Party who falls prey to fraudsters by failing to conduct effective due diligence cannot wave his dubious title in the face of the Court and claim to hold a good indefeasible title. It would be absurd if the Courts were to hold that such titles are impeachable.
22.The upshot is that I did not find any basis upon which to disturb the Judgment of the Learned Trial Magistrate as delivered on 6th May, 2019. This Appeal fails and it is dismissed with costs to the 1st Respondent.