IN THE COURT OF APPEAL

AT KISUMU

(CORAM: ONYANGO OTIENO, AZANGALALA & KANTAI JJ.A)

CIVIL APPEAL NO. 117 OF 2006

BETWEEN

PRAFULLA ENTERPRISES LIMITED............................................ APPELLANT

AND

NORLAKE INVESTMENTS LIMITED.................................. 1ST RESPONDENT

ATTORNEY GENERAL ….................................................. 2ND RESPONDENT

(Appeal from a Judgment of the High Court of Kenya at Kisumu

               (Tanui J.) dated 8th February, 2006

in

H.C.C.C. NO. 336  OF 1999)

  *******************

 JUDGMENT OF THE COURT

The genesis of the entire saga culminating into this appeal is the subsequent ownership of two pieces of land that resulted from the division of original land parcel Number KISUMU MUNICIPALITY/BLOCK VII/6 which originally belonged to E.A. Hardwares Limited.  It was later sold and transferred to Lake Investments Limited which subdivided it into several plots numbering from Kisumu Municipality/Block VII/413 to Kisumu Municipality/Block VII/440.  All of these smaller  plots except two were sold to the first respondent in this appeal Norlake Investments` Limited.  One of the remaining two which was either Kisumu Municipality/428 or Kisumu Municipality/438 was sold to the appellant herein Prafulla Enterprises Limited. We say either 428 or 438 because the main issue is based on the identity of which of the two plots was sold to the appellant notwithstanding the titles of documents that were issued to either party.  The record shows the appellant had been a tenant occupying the same premises and doing business therein since 1970 and that is to say it had been a tenant of E.A. Hardwares, before the property was transferred to Lake Investments Limited and thereafter at the time Lake Investments Limited subdivided it and sold the subdivisions to the first respondent and to the appellant and to one other entity.

Vide sale agreement dated 26th August, 1993, between Lake Investments Limited and the appellant, Lake Investments Limited through two of their directors Job Oyugi and Douglas Odhiambo Oyugi sold to the appellant and the appellant bought from Lake Investments Limited one of the plots arising from the subdivisions namely land parcel Number KISUMU MUNICIPALITY/BLOCK VII/428 for an agreed sum of Ksh.1,550,000/=.  We need to add here that to effect the subdivision of the original piece of land, survey plans were prepared.  It would appear to us that this is the stage where problems giving rise to the entire case started, for it is not clear as to which survey plan was genuine and how many were prepared as apparently there were two survey plans bearing the same number.  We will later discuss this aspect of the case.  Back to sale and transfer of Kisumu Municipality/Block VII/428 to the appellant. The lands  office, represented in this appeal by the second respondent, the Attorney General, upon the procedures of transfer being complied with by the appellant and Lake Investments Company, issued certificate of lease dated 1st September, 1993, to the appellant.  In the meanwhile, it would appear that of the many plots arising from the subdivision, sold to the first respondent, one was Kisumu Municipality/Vol VII/438.  Whereas the appellant continued its business as was usual in its place of business, with its directors feeling assured that that was the plot they had bought and thus were no longer tenants of anybody,  it was surprised when it received a letter from Nyachae & Co. Advocates, then advocates for the first respondent, dated 24th September, 1993, issuing the company with a Landlord's Notice under Section 4(2) of the  landlord and Tenant (Shops, Hotels and Catering Establishments) Act – Cap 301 which was a Statutory Notice under the Act – That was a Landlord's Notice to terminate or alter the terms of tenancy and was a notice of the increase of rent from Ksh.6,100/= per month to Ksh.18,300/= per month.  The subject property in that letter, in respect of which Notice was given was Kisumu Municipality/Block VII/438.

That Notice sparked a chain of legal activities which have resulted into this appeal. The appellant would not take that notice lying down, believing as it did, that it was occupying its own property which it had bought from Lake Investments for a price vide agreement dated 26th August, 1993, just below one month previously.  Through its then advocates, M/S Kohli, Patel & Raichura, it responded to that letter vide a letter dated 7th October, 1993, in which it stated inter alia:-

“Our clients state that they are not the tenants of the premises known as Kisumu Municipality/Block 7/438 therefore they do not agree to comply with the said notice.”

Those two letters, read with the certificate of lease on the background gave rise to a question as to whether the premises occupied by the appellant and which it believed was the subject of the land certificate issued to it, was indeed Kisumu Municipality/Block VII/428 as was cited in the land certificate or was Kisumu Municipality/Block VII/438 as was being claimed by the first respondent.  In other words, whether he got from Lake Investments Limited what he negotiated for which was to buy the land parcel in respect of which he had been doing business since 1970 or whether he ended up being in a plot which was sold to another person or whether the first respondent was mistaken in its insisting that the relevant plot was indeed sold to it and not to the appellant.  In the meantime, the appellant referred the tenancy matter to the Business Premises Rent Tribunal, but was not successful in stopping the first respondent from treating it as a tenant. The appellant's directors raised a complaint with the lands office.  These complaints however resulted into seriously conflicting assertions by the officers of the then lands ministry with some communications from that office confirming that two survey maps existed with the same number so that one must have been  genuine and the other fake and others saying that it was difficult to pinpoint at the genuine and non genuine survey map.  The survey map, it was believed, would help to identify the correct plot allocated to the appellant and whether that plot was fronting Obote road or not.  The lands office recalled the land certificates issued to both the appellant and the first respondent but whereas the appellant surrendered his certificate for cancellation, the first respondent did not do so.  After some communications however, the directors of the appellant formed the opinion that the plot No. 438 which was fronting Obote road, was the plot it negotiated for and not No. 428 allocated to it.  With that in mind, the appellant moved to court vide Court Case No. 396 of 1994 in which it sued Lake Investments Limited and Norlake Investments Limited and sought judgment as follows:-

 “(a)   A declaration that the property purchased by the plaintiff  from the first Defendant is KISUMU MUNICIPALITY/BLOCK 7/438 and not KISUMU    MUNICIPALITY (sic) 7/428.

  (b)   A further declaration that the 2nd defendant erroneously transferred KISUMU MUNICIPALITY/BLOCK 7/428 to  the plaintiff in purported compliance with the   instructions of the 1st Defendant. 

  (c)   An order that the transfer of KISUMU MUNICIPALITY/BLOCK 7/428 by the 2nd Defendant to the plaintiff to nullified (sic) and/or cancelled.

  (d)   A further order that property KISUMU MUNICIPALITY BLOCK 7/428 be transfered by the 2nd Defendant to the plaintiff.

  (e)   That all necessary documentation to effect declaration/orders (a) to (e) be carried out by the 1st Defendant and/or 2nd Defendant.”

These prayers were based on the assertion by the appellant that the land parcel No. KISUMU MUNICIPALITY/BLOCK 7/428 was transferred to it by error and the correct plot should have been KISUMU MUNICIPALITY /BLOCK 7/438.  That suit was defended by Lake Investments Limited and the first respondent in this appeal.  It will be noted that the Attorney General was not joined as a party to that suit.  That was perhaps because at that time the appellant had no reason to suspect any wrong doing by any Ministry of Lands officials that could have resulted into the error in registering the appellant as the owner of plot No. 428 instead of plot No. 438.  The first respondent and Lake Investments Limited filed defences and the first appellant which was the second defendant in that suit maintained that it was the rightful owner of plot No. 438, and sought dismissal of the appellant's suit.  Before that suit was set down for full hearing, the first respondent which as we have said was the second respondent sought particulars to be supplied by the appellant.  When these were not supplied to the satisfaction of the first respondent, it applied for the suit as against it to be struck out.  That application was heard by Wambilyianga J. (as he then was),  who in a ruling delivered on 23rd February, 1996, allowed it as against the first respondent and thus the suit was struck out as against the first respondent.  We note that in an orbiter, the learned Judge stated:- 

“At the outset I am constrained to point out that this plaint does not at all disclose any cause of action against the 2nd defendant.”

This remark was made on the basis that the first respondent in this appeal which was the second defendant in that case was a stranger to the contract which according to the learned Judge, was a contract between Lake Investments Limited and the appellant and the first respondent was not a party to the same contract.  Be that as it may, the appellant did not file any appeal against that decision because although the appellant applied for leave to appeal, the same application was refused.

The appellant proceeded to seek what it felt were its rights.  It filed H.C.C.C. No. 145 of 1998, against the first respondent alone claiming that the first respondent, purporting to be the owner of Kisumu Municipality/Block VII/428, made representations to the appellant that made the appellant enter into agreement to buy the same piece of land, only later to give the appellant Notice of the increase of rent for the same premises which the appellant believed it had bought from the first respondent.  It also claimed in that plaint that the first respondent caused auctioneers to distress for rent upon its premises and on that score prayed in that plaint for permanent injunction against the first respondent; special damages, general damages for trespass, costs and interest on such costs.  Earlier it had also filed H.C. Miscellaneous Civil Application No. 145 of 1997 against the Land Registrar Kisumu and the first respondent.  That was a Judicial Review application brought by way of Notice of Motion dated 3rd February, 1999.  It sought orders:-

“(a)         That this Honourable court be pleased to grant an order of mandamus directed to   the Registrar of lands compelling him to issue certificate of titles  in accordance with the director of surveys map marked PMK – 5.”

(b)         that the costs of this application be provided for.”

That suit was brought against the Registrar of Lands and Norlake Investments Limited and the main allegation against the two was that the confusion resulting into the appellant being deprived of the plot it was entitled to was as a result of a fraudulent, fake, and false survey map which the first respondent and the District Land Registrar introduced into the records. That fake, false and fraudulent survey plan map was bearing the same number as the correct survey plan FR 203/131. Thus the Miscellaneous Application was based on fraud having been committed by both the land Registrar and the first respondent which resulted into a non genuine survey map being used.  At paragraph 7 of the Notice of Intention to sue dated 13th May, 1997, the appellant stated that after denying the existence of fraudulent map on several occasions, at last the Provincial Surveyor admitted that there existed a genuine and non genuine survey  maps and it stated further as a consequence at paragraph 9 as follows:-

“As a result of the Director of Surveyor's ruling, the proposed plaintiff thinks that the R.I.M. Map ought to be amended to conform with the correct survey plan map, or alternatively, that the proposed plaintiff be the registered owner of the parcel 438 as shown on the current R.I.M. map in place of Norlake Investments Ltd.”

That suit was defended, and both the first respondent and the Attorney General for the Lands Registrar denied alleged fraud and the existence of fake, false and fraudulent survey map allegedly introduced into the record to deprive the appellant of its ownership of the premises it had occupied and which its directors felt it had bought through the agreement of sale the appellant made with Lake investments Limited.  However, this suit did not proceed to full hearing for in a consent letter dated 13th September, 1999, and received in court on 15th September, 1999, it was entered:-

“By consent of the parties, the entire application be and is hereby discontinued,”

Before we wind up this aspect of the various efforts taken by the appellant to ensure that the property it bought and to which it was entitled was the property in which it had traded since 1970 and which fronted Obote road and not any other, we observe that as at the time the suit the subject of this appeal was being heard, in the High Court, H.C.C.C. No. 145 of 1997 was still pending and there was also a reference to the Business Premises Rent Tribunal which had been settled in favour of the first respondent as the record shows that the Business Tribunal felt that issue put forward by the appellant to the effect that he was not first respondent's tenant was not tenable.

However, the appellant did not give up its pursuit of what it felt was its right.  By way of a plaint dated 5th October, 1999, and filed into the High Court at Kisumu on 6th October, 1999, the appellant sued both respondents – Norlake Investments Limited and the Attorney General claiming at paragraphs 6 and 7 of the the plaint:-

“6.          …..that the subdivision of parcel number Kisumu Municipality/Block VII/6 aforesaid was shown on a survey plan   map No. FR 204/131, hereinafter called the “Genuine    map” which was properly registered by the Director of   Surveys and which  Genuine map, showing parcel no. 428 aforesaid to be fronting Obote Road ought to have been used in amending the R.I.M. Map to reflect the said subdivision of   Kisumu Municipality/Block VII/6 aforesaid.

  7.  On some date unknown to the plaintiff, but subsequent to the purchase of parcel No. 428 by the plaintiff, the 1st Defendant  acting in collusion and in connivance with some unknown officials in the Ministry of Lands, Department of survey and land Registrar Department, unlawfully, fraudulently and without any  lawful cause or excuse,introduced  or caused to be introduced, or conspired to be introduced into the Land Records at the Survey Department a false, fake and fraudulent survey plan map bearing the same serial number as the aforesaid Genuine Map to the detriment of the plaintiff, and to the benefit of the 1st defendant.”

The appellant then went on and gave particulars of the respondents' fraudulent activities which were seven in all and then made other allegations, but these were in consequence of the alleged fraud.  In the end the appellant prayed for judgment against the first and second respondents as follows:-

“(a)  A declaration that the plaintiff bought the suit plot, that the plaintiff was occupying   before 1990, and still occupies to date, whether described as parcel No. 428 or 438 in the two conflicting maps.

 (b) A declaration that the survey plan map showing the suit plot  occupied by the plaintiff to be Kisumu Municipality/Block 7/428 and fronting the Obote Road is   the genuine and valid survey plan map.

 (c) A declaration that the 2nd survey plan map, showing the plot occupied by the plaintiff as parcel No. 438 is fake, fraudulent, invalid and of  no value.

 (d) A declaration that the present R.I.M. Map in respect of   parcels Kisumu Municipality/Block VII/413 to 440 was irregularly, invalidly and unlawfully made using a fake, fraudulent, false and invalid survey plan map.

 (e) A declaration that the present R.I.M. Map showing the plaintiff's premises to be parcel number 438 is inaccurate, null and void and invalid.

 (f) An order directing the Director of Survey and the Land Registrar to amend the R.I.M. Map in accordance with the genuine survey plan map.

 (g) In the alternative to (e), an order directing the cancellation of the registration of Norlake Investments Ltd, as the registered owner of parcel Kisumu Municipality/Block VIII (sic)/438 as presently shown on the R.I.M. Map and directing the registration of the plaintiff as the owner thereof.

 (h) Special damages being costs of filing and prosecuting  Kisumu HCCC 396/94, HCCC 153/96 (sic) and Kisumu  HC Misc. Civil Application No. 145 of 1998

(i)  An account taken for all moneys paid to the 1st Defendant as “rent” for the premises occupied by the plaintiff since1990 to date and costs involved in defending the plaintiff's interest before the Business Premises Rent Tribunal.

 (j) An order directed to the 1st defendant to pay to the plaintiff all such monies  and costs as are found to have been paid by the plaintiff to the 1st defendant pursuant to (i) thereinabove.

 (k) A permanent and perpetual injunction restraining the 1st defendant by itself, its agents, servants officers or employees  or persons claiming title from the 1st defendant  from  entering, remaining, distraining for rent, harassing, inconveniencing or interfering in any other  manner  howsoever with the plaintiff's quiet enjoyment of   the premises occupied by the plaintiff.

 (l) General damages.

 (m) Costs of this suit.

 (n) Interest on (h) (I) (l) and (m) at court rates.

                       (o) Such further or other relief as the court may deem just and fit to grant.”

The first respondent entered appearance and filed statement of defence.  The second respondent likewise filed appearance and defence.  Both denied the claim by the appellant.  In a summary the first respondent's defence was that the suit was premature as the issues raised in the plaint were directly and substantively the same issues raised in Kisumu H.C.C.C. NO. 145 of 1997 filed by the appellant against the first respondent and which was still pending; that the suit was res judicata as the same issues raised were raised, dealt with and finally determined in Kisumu H.C.C.C. No. 396 of 1994; that it did not admit allegations of fraud and particulars of fraud against it; that the land parcel KISUMU MUNICIPALITY/BLOCK 7/438 belongs to it and fronts Obote Road;  that the premises occupied by the appellant are located on the said land parcel Kisumu Municipality/Block 7/438; that the appellant had at all material times since it bought the same property in 1993, been its tenant upon the same premises i.e land parcel No. Kisumu Municipality/Block 7/438; that the appellant brought H.C.CC. No. 396 of 1994 against the first respondent but that suit was dismissed; that in that suit the appellant had pleaded that there was mutual error and/or fraudulent mistake in the transaction that led to transfer of plot 438 to the first respondent; that in another suit HCCC No. 145 of 1997, the appellant claimed he was entitled to land parcel No. 438 and that suit was still pending before court; that again in 1998, the appellant filed H.C.C. Misc. Application No. 145 of 1998 in which it sought certiorari and mandamus orders against Land Registrar but that was withdrawn.  Lastly, the first respondent stated that the appellant's  prayers could not be maintained as to do so would result into interference with the status of several other properties connected  to the suit properties.  It sought the dismissal of the suit.

On its part, the second respondent sought dismissal of the suit on grounds that the part of the pleadings offended the provisions of Section 13A of the Government Proceedings Act Chapter 40 Laws of Kenya; that allegations of fraud are denied together with particulars alleged in the plaint; that the allegation that a wrong or non genuine survey plan map was used to amend the R.I.M. is denied and that the suit was statute barred and thus the claims were unavailable.

The record shows that before the suit was set down for hearing, the appellant and the second respondent, the Attorney General reached some settlement between the two of them.  That resulted into a consent order being entered in the suit pursuant to a letter addressed to the Deputy Registrar dated 27th September, 2002, and received in court on 16th October, 2002.  As a result of that consent, which was recorded in court, a decree was issued, but as that consent was entered apparently without the knowledge of the first respondent, it was, on the first respondent's application set aside and the matter proceeded to full hearing, of course after disposing of all other interlocutory and procedural matters.

 The matter was thereafter set down for hearing before Tanui J. (as he then was).  The appellant called two witnesses, namely Pravin Madhavji Karia (PW1), a director of the appellant company and Paul Kibet Rugut (PW2), a Survey Assistant  from the Lands office whereas the first respondent also called two witnesses to wit Mitesh Fulchard Shah (DW1), its director and Hesbon Kavosi, a Judicial officer in charge of High Court Civil Registry Kisumu who produced files in HCCC No. 396 of 1994, H.C.C.C. No. 145 of 1997, and HCC Misc. Application No. 145 of 1998. The second respondent did not call any witness. We will discuss and consider their evidence as may be necessary and relevant hereafter in this judgment. The learned Judge, after considering the evidence, the exhibits, submissions by the learned counsel and the law, dismissed the suit, stating in doing so as follows inter alia:-

“As there is evidence that from the time of transferring these plots the said Lake Investments Limited had intended to transfer to the plaintiff plot Kisumu Municipality/Block 7/428, is (sic) shown by the transfer form on record, it would have been prudent for the plaintiff to have joined the said Lake Investments Limited as a party in this suit.  Without evidence of Lake Investments Limited which had owned both plots, it is possible (sic) to know the plots, the plaintiff and the 1st Defendant had bought from it in 1993.

      The averment in paragraph 7 of the plaint to the effect that subsequent to the purchase of plot No. Kisumu Municipality/Block 7/428 by the plaintiff the 1st defendant acting in collusion with unknown officials in Ministry of Lands, Department of Surveys and Land Registrar had fraudulently introduced a false survey plan map being the same serial number as the genuine one was not proved at all.  The burden was upon the plaintiff to name the parties involved but there was no evidence to support the claim ….............  The claim that there were 2 plan maps of similar serial numbers was also not proved.  In any case it was upon the plaintiff to prove some of the particulars of the fraud attributed to the 1st Defendant and some unknown officials, but it miserably failed to prove even one of them.  The fact that the Director of Surveys did not come to court and clarify the issue of there being in his office a genuine and fake plan maps was also not established on the normal standard of proof. There was also no proof of any misrepresentation by the first defendant of any fact.  It is noteworthy that in Kisumu HCCC No. 396 of 1994 the plaintiff had claimed that it had bought from the 1st defendant and/or Norlake Investments Limited plot No. Kisumu Municipality block 7/438 but by an error plot No. 428 was transferred to it.  In Kisumu HCCC No. 145 of 1997 the plaintiff averred it had bought plot NO. 428. The plaintiff appears to have acknowledged that the 1st defendant owns the plot No. Block 7/438 by payment of rent since 1993.

      In the result, I am satisfied that the plaintiff has not proved its case on the balance of probabilities.  The suit is therefore dismissed with costs.”

The above is the decision that has prompted this appeal. The appellant felt aggrieved by it and hence this appeal based on eleven grounds which are in a summary that the learned Judge erred in dismissing the suit on account of non joinder of Lake Investments Limited; that the learned Judge erred in concluding that fraud was not proved when documentary evidence was availed; that as the second respondent did not adduce evidence rebutting appellant's evidence, the court erred in failing to find for the appellant on the relevant claims; that the learned Judge erred in failing to make adverse inference on the failure by the second respondent to adduce evidence; that, the learned trial Judge erred in finding that the first respondent had pleaded fair comment when such a plea was never prompted at all; that the claim that there were two plan maps was supported by documentary evidence and the learned Judge erred in finding that that claim was not proved; that the learned Judge erred in finding no proof of genuine and non genuine survey plan maps on the reason that Director of Survey did not give evidence on that issue while there was a letter from the survey's office on record confirming the same; that the learned trial Judge erred in relying on pleadings in other cases which had either not been finalised and determined on merit or were still pending; and that the learned  trial Judge erred in finding that the appellant had acknowledged his being a tenant of the first respondent notwithstanding the explanation given by the appellant as regards that aspect and in thus ignoring that explanation.

Mr. Menezes together with Mr. K'Opot, both learned counsel for the appellant addressed us at length on the above grounds of appeal.  We can only render a summary of the same submissions.  Mr. Menezes referred us to Order 9 Rule 9 of the Civil Procedure Rules and submitted that under that rule, no suit can be defeated by non joinder of parties and invited us to find that the learned trial Judge erred in law in dismissing the suit on grounds of non joinder of Lake Investments Limited.  He also referred us to the decision of this Court in the case of Lochab Brothers  v  Kenya Furfural Co. Ltd, (1983) KLR 257 in support of that contention.  He stated further that the learned trial Judge should have considered the evidence backed by exhibits together with an agreement between the appellant and Lake Investments Limited, all of which clearly demonstrated that the suit premises was plot No. 428 and was the same premises where the appellant had been doing business all along.  He added that the learned Judge should have accepted that the second respondent admitted that there was a mix up in respect of which plot was sold to the appellant between plots 428 and 438 and that mix up should have been resolved in favour of the appellant.

Mr. Menezes in support of this contention referred us to several letters in the record adding that the learned Judge should have considered that when the two titles were recalled by the Lands office, the appellant complied whereas the first respondent did not.  He asked us to revisit the consent order that was rendered but later set aside as to him, it indicated that the second respondent acknowledged the mistake that resulted into the confusion.  In his view, the learned trial Judge erred in finding that the appellant had not proved its case within the standards required in Civil litigation whereas through several letters and other documents, the appellant had in fact not only proved its case within the standards of probability as is required in law but beyond reasonable doubt.  Mr. Menezes maintained that as the first respondent failed to avail documents including agreements if any to show how it acquired the subject plot, its evidence did not destroy the evidence of the appellant and the second respondent offered no evidence and no reference was made to that failure, nor did the learned Judge even refer to the second respondent in his entire judgment.  He also submitted that the Director of Survey should have been compelled to come to court and give evidence.  In his mind, none of the cases filed by the appellant previously on the same subject matter was relevant for purposes of the judgment in this case and the learned trial Judge erred in referring to them in his judgment.  As to the allegation that the appellant continued paying rent in respect of the suit premises, the learned counsel conceded that rent was indeed being paid to first respondent by the appellant, but he maintained that this was done through distress arising from the fact that Lake Investments Limited which was earlier on its landlord, subdivided the property into various plots and the subject plot in which it was doing business was being claimed by the first respondent.  He concluded his submissions by asking us to let the appellant have his plot which is confronting Obote road in Kisumu.

Mr. K'Opot, who as we have stated was also acting for the appellant submitted that the main issues in the entire case were seven and they were in brief whether the non joinder of Lake Investments Limited was fatal to the appellant's case, whether the court was right in refusing to grant the remedy of restitution; whether any effect could be placed on the failure of the second respondent to present rebuttal evidence; whether the court was right in finding that the two conflicting survey plans were not produced when they were actually produced in evidence; whether failure to call director of survey was fatal whereas the same Director of Survey was a party as second respondent; what weight could the court put on other cases which were not part of this case and whether by payment of rent, the appellant renounced its claim of ownership on the same property.  After pointing out these issues, Mr. K'Opot addressed us on them and concluded each in favour of the appellant, ending up in asking us to allow the appeal, having adopted the sentiments of Mr. Menezes on the issues.

Mr. Shah and Mr. Wasuna represented the first respondent and submitted written submissions which were highlighted before us by Mr. Shah who stated that the appellant first filed H.C.C.C. No. 396 of 1994, against  Lake Investments Limited and the first respondent.  That case was dismissed on grounds that first respondent had nothing to  do with appellant as Lake Investments Limited could have misled the appellant.  The appellant thereafter lodged HCC Misc. Application No. 145 of 1998 which it opted to discontinue.  He further submitted that the first respondent had no privity of contract with the appellant as Lake Investments Limited sold different property to  the appellant and different property to the first respondent.  Thus, he contended that as the first respondent bought its property from Lake Investments Limited and the appellant also bought its property separately from the same Lake Investments Limited, the first respondent had nothing to do with the appellant at all and if the appellant was in anyway misled then it has only Lake Investments Limited to turn to and not the first respondent.  He contended that the first respondent purchased plot No. 438 prior to purchase of plot No. 428 by the appellant.  He stated that in the hearing of the case before the trial Judge, the then learned counsel for the appellant  readily conceded that without the evidence of a surveyor producing the alleged genuine survey map, the appellant's case could not stand.  The learned Judge, in a ruling  extended time for the surveyor to give evidence and a surveyor was availed but no sufficient evidence was advanced on that aspect as the witness was not able to know the genuine survey plan map and that was in Mr. Shah's view fatal to the appellant's case. 

Further, Mr. Shah contended that the appellant had never been certain of the person from whom it bought the suit plot as in one previous case it alleged that it bought the suit plot from the first respondent whereas in the present suit it says it bought the plot from the first respondent.  He referred us to page 301 of the record and maintained that the Land Registrar categorically stated that plot No. 438 was registered in the name of the first respondent whereas plot 428 was in the name of the appellant.  He emphasized that the appellant in H.C.C.C. 396 of  1994 had based its case on fundamental mistake of fact, but later in the present case it now bases its case on fraud perpetrated by the two respondents and that shows the appellant is not aware of what it is pursuing.  He added that the first respondent bought plot No. 438 and it was transferred to it on 26th August, 1993, before the appellant bought plot No. 428.  In that scenario, he said, the first respondent could not have known and taken part in the alleged fraud.  He went on and said there is also Kisumu CA No. 265 of 1997 which is probably still pending on the same claim.  In Mr. Shah's view, the letter from the Provincial Surveyor Nyanza Province dated 14th March, 1997, which withdrew and cancelled the letter of 5th November, 1996, should have seen the end of the appellant's case.  Mr. Shah felt the consent judgment that was entered and recorded between the appellant and second respondent was done as a result of machinations and was rightly set aside by the trial court.  He conceded that in law non joinder of a party is not fatal to a case but added that where it becomes necessary to join an affected party, it is necessary for the party concerned to apply to join that party or to call someone from that party as a witness.  He felt, to that extent that learned trial Judge was right in his holding on that aspect.  On whether or not documentary evidence was sufficient to sustain a suit, Mr. Shah felt there was need for oral evidence to buttress documentary evidence.  He relied on the decision of the predecessor to this Court in the case of Cheserem  v  HZ & Co. Ltd (1982) LKR 24.  He further referred to several parts of the record as regards the appellant's evidence before the trial court and submitted that the appellant had not made a case upon which his claim could be granted.  On the second respondent's not giving evidence, it was Mr. Shah's take that as the appellant's director had said in evidence that the appellant was claiming nothing from the second respondent, there was no need for evidence from the second respondent to rebut what was not against it.  He pointed out that according to the records, the survey plan map sought to be produced in evidence was not accepted as an exhibit and, to that effect referred us to page 41 of the record.  He ended his submissions by saying that the burden of proof in fraud cases was higher than balance of probability and lesser than beyond reasonable doubt relying on case of R.G. Patel   v  Lalji Makanji (1937) EA 314 and said the appellant had not proved its case as is required in law.  We need to add here that we have referred mainly to Mr. Shah's written submissions which he highlighted before us at the hearing of this appeal. 

Mr. Wasuna stated that in case of mistake, provisions of Section 26 of the retired Registered Land Act should have been invoked.

Mr. Maroro, the learned counsel for the second respondent – the Attorney General submitted that in his evidence at the trial in the High court, the appellant's director, the first witness, exonerated virtually everybody of the allegations of fraud as he said there was a mistake but he did not know who had committed that mistake and he said in evidence that there were two survey plan maps one false and one genuine but he was not sure of the person who committed the offence of producing the two or the fake one.  Mr. Maroro said further that the second respondent did not call evidence because the appellant had not in its evidence made out a case as to which survey plan map was fake and who was involved in the offence.  He submitted there was no fraud and if there was a mistake, that should have been rectified through the necessary legal channels.

We have considered the record, which, we must accept was fairly voluminous by any standards.  We have perused and anxiously considered the evidence that was rendered by the parties to this dispute – particularly the appellant and the first respondent each of which, as we have stated called two witnesses.  We have considered as well, again anxiously, the submissions by the learned counsel for each party and the law.  It is not in dispute that the entire parcel of land KISUMU MUNICIPALITY/BLOCK VII/6 was originally registered in the name of Lake Investments Limited.  The appellant was a tenant in the same property and according to its director (PW1) the premises it occupied faced Obote road in Kisumu.  It was a developed property, and was a portion of the entire land parcel KISUMU MUNICIPALITY/BLOCK VII/6. Lake Investments Limited subdivided that main land parcel into smaller parcels which were numbered and registered as KISUMU MUNICIPALITY/BLOCK VII/413 – 440.  The first respondent states that it bought all the subdivisions except two and it contended and was not challenged that it got title to land parcel Kisumu Municipality/Block VII/438 on 26th August, 1993, before the appellant got title to the subdivision it purchased from Lake Investments Limited.  On the same day 26th August, 1993, the appellant and Lake Investments Limited entered into an agreement of sale and that agreement stated that Lake Investments Limited sold and the appellant bought “the property comprised in title Number KISUMU MUNICIPALITY/BLOCK 7/428 together with the building and improvements erected and being thereon,” for an agreed price of Ksh.1,550,000/=.

The appellant's directors apparently believed at all times that the plot that was sold to the appellant was one facing Obote road where it had been doing business.  We have carefully perused the Sale Agreement which covers about three pages, but we have been unable to detect any part of it saying that the property sold to the appellant by Lake Investments Limited was one facing Obote road.  What on our perusal of the same agreement, has revealed is however that the property which was Kisumu Municipality/Block VII/428 was sold “free from all encumbrances but subject to existing tenancies.” Thus, other than saying that the property was sold “together with the building and improvements erected and being thereon,” there was no further description of the property other than its parcel number, that could distinguish it from any other parcels that arose from the subdivision of the original land parcel KISUMU MUNICIPALITY/Block VII/6.  For some unexplained reason, although the sale agreement made it clear that once the purchase was through, the appellant was entitled to any rents that accrued from the tenancy of the property, and although the appellant believed it had acquired the property in which it had been doing business all along from the year 1970, it did not inform anybody that henceforth it could no longer pay any rent to anybody as the property according to it was then its property.  Perhaps it believed that as Lake Investments Limited was its former landlord, there was no need informing any other person as the landlord was the seller.

Pursuant to the sale, and transfer, the appellant was issued with the certificate of lease in respect of plot No. 428 on 1st September, 1993.  Thus the record shows that whereas the first respondent obtained title to Kisumu Municipality/Block VII/438 on 26th August, 1993, the appellant obtained its title on 1st September, 1993, only five days later.  In our view this was still within such a short time that any mistakes if detected could have been rectified to avoid waste of time and money as has happened here.  But that was never to be.  Vide a letter ref. 861/93 (1) dated 24th September, 1993, the first respondent's advocates issued the appellant with Landlord's Notice under Section 4(2) of the Landlord and Tenant (Shops, Hotels and Catering Establishments) Act - Chapter 301 Laws of Kenya.  In that Notice the first respondent was seeking increase of rent for the plot the appellant was doing business in and which plot, according to the first respondent was plot No. 438 which belonged to the first respondent.  That put the appellant on Notice that whereas its directors thought all along that its plot was 428 which according to it, was where they were already doing business, the first respondent was claiming the same plot which was on site the same plot but to the respondent it was plot No. 438 and not No. 428.  Thus the main issue that the appellant wanted sorted out was whether there was a mistake in the identity of the plots.  The appellant at first felt that there was a fundamental mistake and hence its filing H.C.C.C. No. 396 of 1996. That suit was filed as we have stated against Lake Investments Limited and the first respondent.  Apparently at that time, the appellant had no complaint against the Ministry of Lands.  Although Mr. Menezes and Mr. K'Opot were of the view that the learned trial Judge should not have put any reliance on these early cases, we are not persuaded that the learned trial Judge could have and should have ignored these cases.  First for purposes of testing the reliability and consistency of a witness, previous statements made by him on relevant matters are admissible.  -  See the provisions of Section 153  of the Evidence Act.  In any case under Section 6 of the Evidence Act these cases arise from the same transaction on the same subject and any past remarks made as were made in this line of several cases on the subject matters which formed the same transaction, are relevant. Further, the appellant in its plaint referred to them and in its prayer sought to be compensated for having filed them.  It cannot escape our minds that from the time the Landlord's Notice was issued to the appellant, its directors must have started computing what could have happened that ended in this plot not being the one they thought they had purchased and which fronted Obote road.  They must have started thinking of who could have been the offender or who could have manipulated matters to deprive them of their plot.  All that add to evidence as whether the appellant's case was based on guess work or trite evidence.  In our view, once evidence is admissible as evidence of those cases were admitted,  and once it is so admitted as happened here, the court is in law entitled to rely on it for its decision.  We therefore find that the learned trial Judge was plainly entitled to admit and to rely on the cases that had been filed by the appellant against the parties in this case or some of the parties.  In H.C.C.C. No. 396 of 1996, filed when the minds of the directors of the appellant were still clear, the appellant's allegation against Lake Investments Limited and the first respondent was that it actually purchased plot No. 438 and not Plot No. 428 and that the plot No. 428 was transferred to it in error and as a result of a fundamental mistake of fact.  That was why the first respondent featured in that suit as the plot that was registered in its name namely Plot No. 438 which fronted Obote road was according to the appellant the plot that should have been transferred to it as it had purchased a plot fronting Obote road and where it was carrying out business.  Indeed in its first prayer, in that suit it sought a declaration that the property purchased by it from Lake Investments Limited was KISUMU MUNICIPALITY/BLOCK 7/438 and not KISUMU MUNICIPALITY/BLOCK 7/428.  It is interesting that in that suit the  appellant in its second prayer sought a declaration that the first respondent erroneously transferred plot No. 428 to the appellant in compliance with instructions of Lake Investments Limited.  It is difficult to understand this prayer as the appellant had indeed entered into sale agreement with Lake Investments Limited.  We also observe that the plaint in H.C.C.C. No. 396 of 1994 was dated  15th September, 1994, a year after the Landlord's Notice to the appellant.  In the whole of that one year, the appellant's conclusion on what had happened resulting in its not having plot facing Obote road where he was doing business and which he had bargained for was that there was a fundamental mistake which led to the first respondent being issued with land certificate in respect of a plot that should have been transferred to it and it being issued with a land certificate in respect of a plot that should have been transferred to the first respondent.  Lake Investments Limited which had sold both plots to both the appellant and the first respondent was a party and could have clarified as to whether or not there was indeed a fundamental mistake.That suit never went to full hearing for the first respondent applied for it to be struck out as against it on grounds that the appellant  failed to supply, in time, sufficient particulars. 

Wambilyianga J. (as he then was), struck out the suit as against the first respondent with an orbiter that the plaint did not disclose any cause of action as against the first respondent as the first respondent was not privy to the contract between Lake Investments Limited and the appellant.  That seems to us to be the same as what Mr. Shah submits in the written submissions that the first respondent was not privy to the contract between the appellant and Lake Investments Limited.That ruling was delivered on 23rd February, 1996.  It set the appellant thinking afresh of what could have happened that was threatening to deprive it of the plot it knew all along was the one it purchased – plot fronting Obote road and where it had been working.

The appellant eventually carried out more investigations and communicated with Lands office – particularly, the Survey Department.  Vide a letter dated 5th November, 1996, addressed to the appellant's advocate, the Provincial Surveyor, Nyanza stated as follows on the dispute:-

“Somaia & Co Advocates,

 P.O.Box 255

 KISUMU

 REF:  PRAFULLA ENTERPRISES  - BLOCK 7/428

In reference to your inquiry of the situation of the above premises, I wish to inform you that I have visited the site and confirmed that it is the third plot from parcel No. Block 7/426 along Obote Road opposite BP – Petrol Station.

                                   Thank you,

                                   Tom O.M. N'Khataro

                                   for Provincial Surveyor.

                                                         NYANZA.”

That letter from the Provincial Surveyor, Nyanza could have settled the issue in dispute, but  unfortunately, it did not do so. This is because four months later, and precisely vide another letter dated 14th March, 1997, from the same Provincial Surveyor, Nyanza, to the Chairman of the first respondent company, and copied to the Land Registrar, Kisumu, and to Somaia & Company, Advocates, the same Provincial Surveyor, quoting the reference Number of the same letter but referring to it as dated 3rd November, 1996, and not 5th November, 1996, cancels it.  We believe the date 5th November, 1996, was an error in quoting the letter of 3rd November, 1996.  We set out below the letter of 14th March, 1997.  It states:-

“The Chairman,

 Norlake Investment Ltd,

P.O. Box 406

KISUMU

      REF – KISUMU/MUNICIPALITY/BLOCK 7

                 PLOT NOS – 414 – 440

Reference is made to the Director of Surveys letter CT./236/VOL.2/175 of 7th March, 1997 to the Commissioner of Lands and copied to the Land Registrar – Kisumu.  I hereby confirm that plot No. 7/438 along Obote road opposite BP Petrol Station is registered under Norlake Investment Ltd, and it is occupied by Prafula Enterprises Ltd.

The records are as per the Survey plan F/R No. 204/131 against the plot Cards and File No. 25060 which are in conformity with the area list held by the Land Registrar – Kisumu.

I therefore withdraw the letter written to Somaia and Company Advocates Ref: PS/NYA/9/1/11/21 of 3rd November, 1996 as cancelled; and also their attached copy of Survey Plan No. FR/No 204/131 of our Ref. No. PS/NYA/9/1/11/18 of 16th October, 1996.

                                            TOM O.M. N'KHATARO

                                            for PROVINCIAL SURVEYOR,

                                                 NYANZA PROVINCE.

Copy to:-

The Land Registrar,

P.O. Box 1663,

KISUMU.

Somaia and Company, Advocates,

Box 255,

KISUMU.”

This letter, in our view, threw spanners into the works for the appellant as it then appeared that the issue it had entertained of a fundamental mistake resulting into its woes might have resulted from the survey plan maps that were used when the original land parcel No. Kisumu Municipality/Block VII/6 was subdivided.  It went back to the drawing board and made further inquiries. Vide a letter dated 26th September, 1997, from the Director of Survey in Nairobi addressed to its Pravin Karia it was informed that according to survey of Kenya records, survey had been carried out and that was depicted on FR 204/131.  The Director of Survey went on in that letter and informed Mr Karia that:-

“Since there may have been a mix up, the Provincial Surveyor was instructed to check the situation on the ground and inform the Land Registrar to correct the titles as per the ground situation.”

That letter was copied to the Provincial Surveyor and the Chief Land Registrar in Nairobi.  The Provincial Surveyor complied and the result was a letter dated 29th September, 1997, to the Director of Surveys.  That letter, in our view explains the  predicament the appellant got itself into.  It says:-

“RE:  KISUMU BLOCK 428

The letter CT/236T/Vol. 2/184 of 26th September, addressed to Pravin Karia and copied to me among others refer:  Also refer to my letter P3/NYA/CT/236/7/15/1 (1996) of 6th August, 1997 addressed to the Provincial State Counsel and copied to the Permanent Secretary and to your office also.

Please note that apparently two survey plans both bearing the No. FR/204/131 were used in this transaction. I am not in a position to know the genuine one from this end.  The RIM of Block 7 in my possession also does not reflect the amendment of the subdivision that resulted into parcel Nos. 413 – 440.  However, a physical inspection of the ground shows that Prafulla Enterprises Limited occupies plot Number Kisumu Block 7/428 on one of the survey plans and Kisumu/Block 7/438 on the other survey plan.  I have enclosed both copies of the survey plans so that you can counter check with the original survey plan in Nairobi.

                                            Signed

                                            for PROVINCIAL SURVEYOR,

                                            NYANZA PROVINCE.”

The two survey plan maps, which are in the record bear the same Number FR 204/131.  Vide instructions from the Director of Surveys, the two titles 428 and 438 were recalled.  Meanwhile  in April of the same year 1997, the appellant filed H.C.C.C. NO. 145 of 1997, but that was on the issue of rent which we do not think is strictly relevant to the issue that was before the trial court in as far as whether the appellant or the first respondent was the legally registered owner of the plot that was fronting Obote road and where the appellant was carrying out its business.  Back to ownership issues; armed with the letters from the Director of Surveys and the Provincial Surveyor Nyanza Province, the appellant then filed Miscellaneous Civil Cause No. 145 of 1998 in which it sought Judicial Review orders as follows:-

“That this Honourable court be pleased to grant an order of mandamus directed to the Registrar of Lands compelling him to issue certificate of titles in accordance with the direction of survey map marked “PMK5.”

Our understanding is that as a result of the inquiries and the letters exchanged, the appellant had settled on a survey map which it felt was the one used when the subdivision of Kisumu Municipality/Block VII/6 was carried out as opposed to what was said to be non genuine survey map.

 That understanding is buttressed by the appellant's statement in its intention to sue dated 13th May, 1997 at paragraph 6.

“As a result of the introduction of the fake and fraudulent survey plan map, the land registrar and surveyors at Kisumu amended the R.I.M. Map to show the premises occupied by the proposed plaintiff as parcel No. 438 and not 428 which latter case should have been so had the correct and genuine map been used.”

So far, although the first respondent was joined in that Miscellaneous Civil Suit, the main complaint was against the Lands office and the first respondent was joined mainly as the alleged beneficiary of that alleged mistake perpetrated by the lands office.  That suit was, with consent of all parties withdrawn as we have stated, and marked as discontinued.  We note that whereas in the HCCC No. 396 of 1994, the appellant relied on fundamental mistake as a cause of action, in this Judicial Review, it relied on the allegation of fake and false survey plan map being used by the lands office to deprive it of its genuine property and although in the statement in support of it fraud is mentioned, there was no allegation that the first respondent was a party to that fraud.

Thereafter, the present suit was filed. This time, the main allegation made by the appellant against the two respondents is that of fraud. Paragraph 7 of the plaint states as follows:-

“On some date unknown to the plaintiff, but subsequent to the purchase of parcel No. 428 by the plaintiff, the 1st Defendant acting in collusion and in connivance with some unknown officials in the Ministry of Lands, Department of Survey and Land Registration Department, unlawfully, fraudulently and without any lawful cause or excuse, introduced or caused to be introduced or conspired to be introduced into the Lands Records at the Survey Departments a fake, false and fraudulent survey plan map bearing the same serial number as the aforesaid genuine map to the detriment of the plaintiff, and to the benefit of the 1st Defendant.”

Thus, after several years of investigations, the appellant settled on fraud as the cause of the alleged mix up that made it continue as a tenant in the premises it had allegedly bought from Lake Investments Limited which was fronting Obote road and where it had been doing business.  It set out particulars of the same fraud, one of which was that the two pre-numbered the fake survey plan map the parcel that the plaintiff bought , occupied and still occupies to read 438 instead of parcel No. 428.  It was the appellant that eventually came up with the allegations of fraud and as it is now trite in law, it was the appellant that had to prove the same fraud as against the first respondent and the second respondent representing the land's office.  Did the appellant prove it?  The learned trial Judge felt it did not and as a first appellate court, having fully analysed the entire case afresh as is required of us, we must now go into the evidence that the appellant adduced and the evidence adduced by both respondents where such was adduced and the effect of non production of evidence where such was the case.  In his evidence in chief Pravin Karia (PW1) conceded that in H.C.C.C. No. 396 of 1994, the appellant was claiming plot No. 438.  And on fraud claim, he said:-

“We have alleged fraud because we feel somebody had altered original plan and substituted another which shows that the plot we bought was empty.  This could not have happened without the knowledge of people and lands office.  The beneficiary of this is the 1st Defendant.”

In cross-examination by Mr. Ombwayo, (as he then was) the then learned counsel for the second respondent, Mr. Karia had this to say on the issue of fraud:-

“There were 2 Index Registry maps. One is fake and the other is genuine.  The latter from the Ministry of Lands was produced.  As far as we are concerned somebody committed fraud in producing fake map.  I am not sure of the person who committed the offence. …..........................................................................

We do not have any evidence of fraud,”

and then he proceeded and stated:-

“We are not claiming anything against the Government.”

It is clear to us that though the appellant had had all the time from September, 1993, when Landlord's Notice was served upon it by the first respondent to 21st September, 2004 when its director gave evidence, on the matter, and it must from the history of the case, have seriously contemplated over the issue, it was nonetheless still unaware of how the fraud he alleged took place and who perpetrated it. If the appellant was not claiming anything from the Government, then why was it sued?  Surely Lands Ministry was part of the government.  If the Government did not take part in the fraud then where did the appellant get  the allegations that are in the plaint and how did the first respondent take part in the fraud?  In the plaint, it alleged that the first respondent was the beneficiary of the fraud carried out in the lands offices, yet it says in its evidence that it is claiming nothing from the Government, so who perpetrated the alleged fraud which benefited the first respondent.  In our view, other than on the allegation and proof of fraud, the first appellant would not have been legally and properly joined in the suit as regards whether plot No. 428 or 438 was the one the appellant bought, for as to which plot it bought that was a matter of contract between it and Lake Investments Limited as Wambilyianga J. (as he then was) rightly opined.  The first appellant was only joined in this matter because it was alleged that it  participated in fraud that led to the manipulation of survey plan maps that allegedly ended in the appellant not getting what it bargained for in its sale agreement with Lake Investments Limited and resulted in it getting the disputed property.  That allegation of fraud had to be proved within the standards required which is above the standard of proof within the probabilities and below proof beyond reasonable doubt.  We adopt and approve the holding of the predecessor to this Court stated in the  case of Ratilal Govedhabhai Patel vs  Lalji Makanyi (1957) EA 314 that:-

“There is one preliminary observation we must make on the learned Judge's treatment of this evidence, he does not anywhere in the judgment expressly direct himself on the burden of proof or on the standard of proof required.  Allegation of fraud must be strictly proved; although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required.  There is no specific indication that the learned Judge had this in mind.”

We do not think it is enough just to allege fraud simply because there is a letter from the Survey office such as the one we have reproduced above stating there could have been a mix up in the production of survey plan maps.  The mix up, if any, could have resulted from incorrect activities and honest mistake and that may very well have explained why the appellant at first thought there was a fundamental mistake in the entire transaction.  We perused all documents on record and we saw none of them admitting or proving fraud by the two respondents either jointly as alleged or severally.  On our own, we are not persuaded that the allegations of fraud were proved within the standards required in law and we find it difficult to fault the learned Judge in his finding on that aspect.  He was plainly right.

The appellant's main complaint in the entire case that was before the learned trial Judge was that the first respondent, colluded with some officers in the lands office and introduced a fake and false survey plan map which was used in depriving it of its rightful plot as after the introduction of that fake and false survey plan map, there existed two survey plan maps with the same number.  It claimed that the fake and false survey plan map is the one which was used and that was wrong as according to it the parcel that it bought was re-numbered on the fake survey plan map to read 438 instead of No. 428. That was one of the particulars of the fraud cited in the plaint.

The respondents denied that allegation and put the appellant to strict proof of it and went on to deny that a wrong survey plan map was used adding that if any such map was used at all (which was denied) it was so used due to an honest mistake without any fraudulent intent.  In law, and with those pleadings, it was the appellant which had the burden of proving within the standards required that such a fake and false survey map plan not only existed but that it was the one used to its detriment.  Indeed, its then advocates Mr. Odunga, now Hon. Justice Odunga appreciated that legal requirement when the hearing was in progress before the learned Judge and was constrained to apply for adjournment to call a witness that would give evidence on the same.  In his application for adjournment, he said:-

“There is an exhibit already marked which ought to be produced by the Surveyor, I think we shall have to issue summons. Without a production of the map the plaintiff has no case. I pray for adjournment.”

That was the extent of the importance of proving that not only there existed a fake and false survey plan map, but that the same was used by re-numbering of the plots such that appellant's plot 428 was indicated as plot No. 438 and first respondent's No. 438 was numbered as No. 428.  What evidence did the appellant adduce in that respect ? The appellant in his evidence referred to the letter from the Director of Surveys dated 26th September, 1997, and letter from the Provincial Surveyor Nyanza dated 29th September, 1997 both of which are reproduced herein above and thereafter continued:-

“apparently there were 2 survey plans both bearing no. FR/204/111, were used in this transaction. I am not in a position to know the genuine one from this end.  The IRM of Block 7 in my possession also does not reflect the amendment of the sub-division that resulted into nos 413 – 440.  However a physical inspection of the ground shows that Prafula Enterprises Ltd, occupies that No. Kisumu Municipality/Block 7/428 on one of the survey plans and on KISUMU MUNICIPALITY BLOCK 7/438 on other survey plan.  I have enclosed both copies of the counter-check with original survey plans in Nairobi.  The copy of letter had enclosed the plans stated therein (Exh – P12 A letter and map P -12 (B) and 2nd map P –12 (C).”

It is clear to us that that evidence could not be treated as proof of which survey plan map was genuine and which one was fake and false.  But, if that was not  enough, the appellant's answers in cross-examination were even more telling.  In Karia's answers to questions by Wasuna he stated inter alia:-

“If they said I am occupying 438 then I had a wrong title.  In that case the premises owners transferred to us a wrong title.  My layers (sic) did not advise me to join the people who sold us the plot.”

This answer is perhaps what prompted the learned Judge to feel that there was need to join Lake Investments Limited into this suit as the same is the one which sold to the appellant the title and also sold to the first respondent the other title both of which are in dispute.  We agree that non joinder of parties cannot defeat a suit as rightly pointed out by Mr. Menezes, but again as also rightly pointed out by Mr. Shah, in a case such as this, even if Lake Investments Limited was not joined as a party, there was need for evidence to be received from one or more of its officers as to which plot was transferred to the appellant and which to the first respondent and in particular which survey plan map was in existence as at the time the plots were transferred.  That evidence would have helped unlock the controversy.  In his reply to questions by Mr. Ombwayo (as he then was) for the second respondent then Mr. Karia said as we have stated that though somebody committed fraud in producing fake map, but he was not sure of the person who committed the offence.  We note that there was a letter in the records from somebody related to Lake Investments Limited to the effect that plot 428 is the one sold to the appellant, but there was need for a witness who could be cross examined on that aspect. The matter is confused even further when Mr. Karia proceeds to say:-

“The Lands Ministry had stated which is the genuine and the fake maps.  Exhibits P-13 (A) states that the genuine map is Exh P-12 which says that Prafula owns 438 and Norlake Investments owns 428.”

Thus, the appellant, which set out to prove that there existed genuine and non genuine survey plan maps has in our view ended up creating more confusion on that aspect and cannot be said to have advanced its case within the standards required in law.

After its counsel Mr. Odunga (as he then was) applied for adjournment to call a witness from the survey department to throw some light on this aspect and to produce the genuine and the fake and false survey plan, and after the court granted that application, Paul Kibet Rugut (PW2) gave evidence and although he said he was conversant with the matters in dispute in the case, his evidence did not advance the appellant's case.  His immediate evidence in chief was:-

“Concerning this case, I know that it is a dispute between nos. KISUMU MUNICIPALITY BLOCK 7/428 AND 438.  Plot no. 438 is along Obote Road which is currently occupied by Prafula Enterprises.  The Official Search dated 4/5/2005 shows that the plot belongs to Norlake Investments.”

In cross-examination, this witness said:-

“It is the Director who asked the Provincial Surveyor to delegate the matter to me. He told me to hand over 2 maps on KISUMU MUNICIPALITY BLOCK 7 (amended) and Survey Plan 204/131. I did not draw them. I have not done any Survey work relating to these plots.  I was not in Kisumu when two maps were done.  I do not know why RIM and map were made.  I do not know why Exhibit P-13 was written.”

As a result of the above, Mr. Odunga, appreciated that this witness did not advance appellant's case and so he applied for yet further adjournment to call another witness.  That application was opposed and was rejected, leaving the appellant with no conclusive evidence on the allegations of fake survey plan map and its effect on the entire case.  Again we are far from being satisfied that appellant proved that allegation.  It is thus no surprise that being uncertain on that aspect, the appellant's first prayer was for a declaration that it bought the premises it was occupying before 1990, and still occupied whether it was described as parcel No. 428 or No. 438 in the two conflicting maps.  This prayer could have only resulted from lack of certainity on the part of the appellant as to which survey plan was genuine and which was not genuine.  This is rather surprising noting that by the time the relevant plaint was drafted the dispute had been on for over six years.

We think we have gone into detailed analysis of the matters that were before the trial court and eventually before us.  In our view, though non joinder of parties cannot defeat a suit, yet in this case, as we have stated, the allegations and even the evidence of Karia, required that Lake Investments Limited be involved even to the extent of offering evidence in the matter, for on a serious look at the entire case, Lake Investments Limited should have said something as to how the confusion arose and when it did arise.  On second ground of appeal, we have set out at length why we think the learned Judge was right on his finding.  In our view, the fact that documents are produced by consent of the parties to a suit is not in itself proof of the contents of these documents.  It only means that parties agree that those are the documents the contents of which are to be canvassed, or are in controversy but as to the proof of the same contents, witnesses are required to be produced and to be examined and cross-examined on the same contents unless the parties categorically admit the contents.  Here the contents as to which was fake survey plan map and which was genuine were not admitted and so had to be proved and such proof never met the required standard.  In respect of the third ground of appeal, the appellant made definite allegations of fraud against the first respondent and the second respondent in the plaint.  The respondents denied these allegations in their statements of defence and put the appellant to strict proof thereon.  As regards the second respondent, on the allegation of fraud, the  appellant in its evidence clearly stated as we have reproduced hereabove that it was not sure of the person who committed the fraud, and that it did not have any evidence of fraud and lastly that is was not claiming anything against the Government and its only witness PW2 denied knowledge of what took place and taking part on any production of the offending survey plan maps.  In that scenario, what prima facie evidence was advanced against the second respondent that required rebuttal evidence?  None.  In our view there was no evidence upon which the court, properly directing its mind, could have found the second respondent liable to the appellant if the second respondent did not adduce evidence.  We see no ground upon which the learned Judge could be faulted as no adverse inference could be made against the second respondent since the appellant itself had exonerated it vide Karia's evidence on record.

We think what we have stated hereinabove answers the complaints on the learned Judge's finding that the claim that there were two plan maps of similar serial numbers was not proved, and that the learned Judge failed to scrutinise the evidence sufficiently.  On the ground that alleges that the learned Judge erred in relying on pleadings in other cases to dismiss the appellant's case, our observation is as stated above.  We add that, this case is so intertwined with the other cases that no proper decision on it could be made without any reference to those other cases particularly H.C.C.C. No. 396 of 1994 and Miscellaneous Civil Case No. 145 of 1998. These cases clearly indicate the appellant's actions immediately it realised that the plot it occupied was in dispute and in our view they form the same transaction.  Indeed at paragraph 11 of the plaint filed by the appellant, the appellant introduced H.C.C.C. No. 396 of 1994 and at paragraph 15 of the same plaint, the appellant also introduced H.C.C. Misc. Application No. 145 of 1998.  The first respondent pleaded those two cases and H.C.C.C. No. 145 of 1997.  In his evidence in chief in court, the appellant through Mr. Karia gave evidence on H.C.C.C. No. 396 of 1994.  Hear him:-

“We had earlier on filed case No. HCCC No. 396 of 1994 at that time we were under the impression that we were occupying plot No. 438. We had received a letter from Nyachae & Co, Advocates saying that out (sic) plot was 438.  They were acting on behalf of the 1st defendant. In that case we were claiming plot 438.  That case was dismissed because the particulars sought were not submitted within time.”

 In cross-examination by Mr. Wasuna, Mr. Karia answered several questions on the previous cases including H.C.C.C. No. 396 of 1994 saying inter alia that the appellant did not appeal against the decision striking out its case as against the first respondent.  In our view, it would have been unrealistic to expect the trial court not to refer to such evidence which was admitted without any objection and was in any event admissible.  A court does not admit evidence for no purpose. Evidence once admitted, can be relied upon in judgment and we see nothing wrong with the trial Judge referring to that evidence in his judgment. In any case, it is clear to us that the learned Judge was only referring to H.C.C.C. No. 396 of 1994 and 145 of 1997 for purposes of considering the veracity and consistency of the appellant's evidence in support of its claim.  As we had stated earlier, under Section 6 of the Evidence Act, and Section 153 of the same act, these were statements on the same transaction and were rightly considered by the trial court.  Nothing turns on this claim.  On the last ground, all that the learned trial Judge said was that the appellant appeared to have acknowledged that the first respondent owned the plot by payment of rent.  We do not see that remark as being the basis of the learned Judge's decision.  It appears to us an orbiter dictum and the judgment could still stand without it.  We agree that the appellant explained in the plaint that he never accepted to be first respondent's tenant and even filed a reference to that effect in the Business Premises Tribunal. It thus did not pay rent in recognition of his status of a tenant as was maintained by the first respondent, but as we have stated, that was a parting remark which in our view cannot be the basis of our interfering with the learned Judge's judgment.  We have as we have stated, perused and considered the legal authorities referred to by all parties, but we found none in support of our interfering with the learned Judge's decision in respect of the obtaining scenario.

In conclusion, it appears to us that all that the appellant wants are that it remains in the premises where it is still doing business and which fronts Obote road no matter whether the premises is described as KISUMU MUNICIPALITY/BLOCK 7/428 or KISUMU MUNICIPALITY/BLOCK 7/438.  Secondly, it appears to us that it does not want to continue paying rent to anybody else which is in our view proper for that was probably the first reason why it bought a plot which apparently was assumed by itself and Lake Investments Limited, which wrote letters to that effect, to be the plot where it is and which fronts Obote road.  The only problem we see however, is that despite several years of agonising over the issue, the appellant has not found it possible to prove that that is the plot it bought and the assumption continues but without tangible evidence to actualise its dream.  A court of law must act on tangible evidence and not on the whims and beliefs of a party if the same is not proved.  As we have stated we have no reason to intervene and set aside the learned Judge's judgment, it will remain as the appeal lacks merit.

The appeal is dismissed with costs to the respondents.

 Dated and Delivered at Kisumu this 21st  day of February, 2014.

 J.W. ONYANGO OTIENO

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    JUDGE OF APPEAL

 F. AZANGALALA

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JUDGE OF APPEAL

S. ole KANTAI

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JUDGE OF APPEAL  

I certify that this is a true copy of the original.

DEPUTY REGISTRAR