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Kariuki v Ndung’u (Land Case Appeal 14 of 2022) [2023] KEELC 17428 (KLR) (16 May 2023) (Judgment)
Neutral citation:
[2023] KEELC 17428 (KLR)
Republic of Kenya
Land Case Appeal 14 of 2022
MAO Odeny, J
May 16, 2023
Between
Julius Ndegwa Kariuki
Appellant
and
Beth Wanjiru Ndung’u
Respondent
(Being an appeal against the Judgment delivered by Hon. T A SITATI 7th March 2022 Lamu PMCC No 6 of 2020)
Judgment
JUDGMENT
1.This appeal arises from the Judgment dated 7th March 2022 by Hon. T A Temba Principal Magistrate Lamu delivered in Lamu PMCC No 6 of 2020. The Appellant herein being aggrieved by the Judgment lodged a Memorandum of Appeal dated 4th April 2022 on the following grounds: -
2.The Respondent herein had sued the Appellant alongside two other parties vide a Plaint dated 14th July 2020 seeking Judgment against the Defendants for;
3.The Trial Magistrate heard the case and entered judgment in favour of the Plaintiff therefore necessitating the filing of this Appeal.
4.Counsel agreed to canvas the Appeal vide written submissions which were duly filed.
APPELLANT’S SUBMISSIONS
5.Counsel submitted on the grounds of Appeal and stated that the Trial Magistrate erred in finding that there was an outstanding balance payable to the Respondent while the same had been paid in full. Further that the consideration was paid by way of bankers cheques, Mpesa, RTGS and cash money on diverse dates.
6.It was counsel’s submission that the entire judgment and decree fell short of the weight of evidence adduced as there was no evidence to substantiate and/or prove the allegation of fraud other than assumptions postulated majorly by the Respondent. Counsel submitted that he who alleges must prove and cited the case of Sinohydro Corporation Ltd v George Kisivo Mulei [2018] eKLR.
7.Mr. Omwancha submitted that the orders granted by the Trial Magistrate were not supported by the pleadings hence were ultra vires and relied on the cases of Equity Bank Ltd –Vs- Gerald Wang’ombe Thuni [2015] eKLR and PRIMEAU V. MEAGHER, (1923) CanLII 117 (SK CA), cited in Civil Appeal 70 of 2018, Lucy Watiri Nduati v. George Kamau (2021) eKLR.
8.Counsel further submitted that the order directing the Appellant to give vacant possession of the suit property to the Respondent was in violation of express terms of a valid contract and relied on the case of Pius Kimaiyo Langat versus Co-operative Bank of Kenya Ltd [2017] eKLR, where the court held that it is not the business of courts to rewrite contract for parties.
1ST RESPONDENT’S SUBMISSIONS
9.Counsel for the 1st Respondent submitted that the judgment of the lower court was sound as the Magistrate correctly established from the evidence tendered by the Respondent that the full amount received was Kshs. 2,000,000/= only which was proved by production of the copies of the Bank Cheques as well as the admission by the Respondent of receiving the initial Deposit.
10.On grounds 3 and 4, Counsel submitted that fraud was specifically pleaded as required by law and the same was duly proved in court to the required standard. The Advocate who was acting for both parties in the said transaction was called as a witness and he duly produced the Original Title Deed for LAMU/HINDI MAGOGONI/1379 which was the subject matter of the contract.
11.It was Mr. Soita’s further submission that the said title deed had been deposited with the Advocate during the signing of the contract and the Appellant was present and duly aware of this. That the Appellant in effecting his fraudulent transfer did not collect the said Title Deed from the mutual advocate and as such the only way he could have had the Title Deed transferred in his name was through a fraudulent scheme in collusion with the office of the then Land Registrar.
12.Counsel submitted that it was on record that the Respondent nether signed any Transfer document in favour of the Appellant nor appeared before the Land Control Board for the purpose of procuring a consent for the transfer of the suit property to the Appellant as the original Title Deed in the name of the Respondent did not leave the office of the mutual advocate at any time for the purpose of effecting a transfer in favour of the Appellant.
13.Further that the Land Registrar, Lamu County, was also called as a witness who confirmed to the Court that the original Title Deed which was in the possession of the mutual Advocate was the genuine one for the suit property. He further confirmed that the Parcel file as regards the Title Deed that was in the Appellant’s the name did not contain the necessary required documents such as copies of the transfer documents, stamp duty forms, LCB Consent.
14.Counsel also submitted that the Land Registrar informed the court that the particular parcel file for LAMU/HINDI MAGOGONI/1379 in the name of the Appellant had an anomaly as there was mischief involved at the very least because there was no cancelled Title Deed when the purported transfer was being made in favour of the Appellant herein.
15.Counsel therefore urged the court to dismiss the appeal with costs to the Respondent.
ANALYSIS AND DETERMINATION
16.This being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record as was held in the case of Selle & Another v Associated Motor Boat Co. Ltd. & Others (1968) EA 123 as follows:
17.Similarly the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424 Sir Kenneth O’Connor stated as follows:-
18.This appeal raises three major grounds namely whether the Trial Magistrate erred in finding that the transfer in respect of the suit property was fraudulent, whether the court erred in declaring that the Appellant breached the contract of 13th October 2014 and whether the court erred in finding that the purchase price was never paid in full.
19.This is a case involving a contract between the Appellant and the Respondent on purchase of the suit land. It is trite that courts do not rewrite contracts for parties however bad or unfair the terms would be. It is further acknowledged that parties are bound by the terms and conditions of the contracts.
20.In the case of National Bank of Kenya Ltd vs. Pipe Plastic Samkolit (K) Ltd (2002) 2 E.A. 503, (2011) eKLR the Court of Appeal stated as follows: -
21.Similarly, in the case of Pius Kimaiyo Langat vs. Co-operative Bank of Kenya Ltd (2017) eKLR the Court of Appeal further stated that: -
22.It should be noted that there is no dispute that the Appellant and the Respondent entered into a sale agreement in respect of the suit property which terms are not disputed. It is further not disputed that the Appellant paid to the Respondent Kshs. 2000,000/- and there was a pending balance of Kshs. 2,000,000/. The Appellant in his testimony at the trial court admitted that the amount paid was Kshs. 2,000,000/.
23.From the evidence on record, it shows that the Appellant entered into an agreement whereby he gave a deposit of Kshs 500,000/- and wrote postdated cheques for the balance which record and the evidence show that some of the cheques were returned unpaid due to insufficient funds especially one dated 6th June 2016 for Kshs 500,000/-. There was no evidence that the bad cheque was replaced with cash or another cheque. It was incumbent upon the Appellant to prove that this was done and how he paid the outstanding balance due to the Respondent.
24.Secondly on the issue as to whether the court erred in finding that the Respondent proved fraud, there is evidence that the Respondent specifically pleaded fraud and that it was proved by the evidence of the Advocate who gave evidence as one who had acted for both parties and further that the original title had been deposited in his office.
25.The Advocate who testified as PW2 it is suspect how the Appellant obtained title in respect of the suit property which he charged at the Bank yet he still had the original title with him. It was his evidence that the Respondent neither signed any transfer documents nor went to Land Control Board for a consent to transfer.
26.The Land Registrar Lamu County also confirmed to the Court that the original Title Deed which was in possession of the mutual Advocate was the genuine one and that the Parcel file as regards the Title Deed that was in the Appellant’s name did not contain the necessary required documents such as copies of the transfer documents, stamp duty forms and LCB Consent. That the title deed in the Appellant’s name had anomalies.
27.The evidence on record shows that the Appellant acted fraudulently as the Trial court had found and there would be no reason to interfere with such finding. The Respondent specifically pleaded and proved fraud against the Appellant. What is the explanation of producing another title in respect of the suit land while the original title is in place? The act of transferring the suit land fraudulently and taking a loan which the Appellant has continued to default as per the demand letters on record is suspect. This was in furtherance of a fraudulent activity.
28.It is trite that the registration of a person and Certificate of title held by such 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 maybe impeached under circumstances provided for under Section 26 (1) of the Land Registration Act, which provides;
29.The Trial Magistrate correctly held that the title fell under the category of those that have been acquired through fraud or misrepresentation acquired illegally, unprocedurally or through a corrupt scheme as was held in the case of Alice Chemutai Too Vs Nickson Kipkurui Korir & 2 Others [2015] eKLR, where the Court held that: -
30.The upshot is that the appeal lacks merit and is therefore dismissed with costs to the Respondent.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 16TH DAY OF MAY, 2023.M.A. ODENYJUDGENB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.MALINDI ELCA CASE NO.14 OF 2022 JUDGMENT Page 4
