Mboro v Tokoin & 3 others

This is as per the re-amended plaint dated 18th October, 2019. 2. The Plainti’s case is as follows. She is the registered proprietor of the two suit parcels which she purchased from the fourth Defendant in the years 2002 and 2004. The purchase was through the Plainti’s late mother, Ann Wanjiku Mboro. The transaction was completed successfully and the Plainti issued with title deeds for the two parcels. 3. The Defendants unlawfully attempted to change ownership of the suit parcels without the knowledge of the Plainti. When the Plainti discovered the interference with the register, she made a report to the criminal investigations department who carried out investigations and established the fraud. The result was the restoration of the land records that had been interfered with by the Defendants. The fourth Defendant went to court behind the back of the Plainti and alleged that the sale between her and the Plainti was incomplete. She obtained an order dated 4th February, 2014 cancelling the Plainti’s title deed to the suit parcels. The fourth Defendant obtained title deed for the suit parcels which bore the same date as the court order. This was very suspicious. Even more suspicious, was the fact that searches carried out on 5/10/2015, 27/11/2015, 3/12/2015 and 21/8/2018, showed the Plainti as the registered owner of the suit land. This was proof that the court order and the title deeds in the names of the fourth Defendant were all forgeries. 4. In support of her case, the Plainti led the following evidence. i. Witness statement dated 11/12/2015. ii. Copy of certicate of ocial search for L.R. Kisaju 2056 dated 27/11/2015, showing the Plainti as the registered proprietor iii. Copy of receipt dated 27/11/2015. iv. Copy of the Title Deed for L.R. 2056, in the name of the Plainti dated 6th December, 2004. v. Copy of gazette notice no. 4434 dated 9th June, 2015 issued by the Land Registrar, Kajiado proving loss of the register of the suit parcels and giving notice of issue of a new register. vi. Copy of letter by County Criminal Investigation Ocer, Nairobi to Land Registrar, Kajiado saying that the register for the suit parcels had been interfered with and needed to be reconstructed. vii. Copies of pictures showing structures on the suit land. viii. Copy of mutation form for L.R. Kisaju/1195 which gave rise to the two suit parcels and L.R. 2054. ix. Copy of title deed for L.R. Kajiado/Kisaju/20155 dated 19/4/2002 in the name of the Plainti. x. Copies of certicates of ocial search for the suit parcels dated 5/10/2015, 27/11/2015, 3/12/2015 and 18/6/2012 all in the names of the Plainti. xi. Correspondence between the CID Nairobi and the Chief Land Registrar, showing how the land records for the suit land were interfered with, and then restored on intervention of the police and the Chief Land Registrar. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13614/eng@2022-10-12 2

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5. xii. Witness statement by Virginia Gakuhi dated 3/9/2019. xiii. Further witness statement by the Plainti dated 18/10/2019. The rst and second Defendants appointed Kang’oli and Company Advocates, who led a notice of appointment on 27/1/2016. Nothing else was ever led by or on behalf of the two Defendants. The third Defendant did not le any memorandum of appearance, defence or any pleadings. The fourth Defendant, through counsel on record led a memorandum of appearance on 24/5/2017 and a written statement of defence and counter claim on 27/2/2018. In the defence, the fourth Defendant avers that there was a sale agreement between her and the Plainti’s mother, one Ann Wanjiru Mboro. The said agreement did not materialize for nonpayment of the purchase price. She challenges the registration of the Plainti as the owner of the suit land. Pursuant to this, she led Miscellaneous Application Numbers 5 and 6 of 2014 at the Principal Magistrates Court at Kajiado, whereby the title deeds issued to the Plainti for the suit parcels were cancelled and the fourth Defendant registered as the absolute proprietor of the suit parcels. Later on, the Plainti led ELC Case No. 619/2015 at Milimani High Court against Simon Meneto Olenguro which she later withdrew. According to the fourth Defendant, the action of reconstructing the register for the suit parcels at the instigation of the Plainti, is illegal and irregular because the fourth Defendant is the legitimate owner pursuant to the order issued by the court in February, 2014. In the counterclaim, the fourth Defendant seeks the following orders; 6. a. A declaration that L.R. Kajiado/Kisaju/2055 and 2056 were illegally and irregularly acquired by the Plainti. b. A cancellation of the land register for L.R. Kajiado/Kisaju/2055 and 2056 in the name of the Plainti. c. An order do issue compelling the District Land Registrar, Kajiado to correct the land register for the two suit parcels to reect the fourth Defendant’s name. d. An injunction restraining the Plainti either by herself, her agents and or servants from entering, transferring, selling, alienating, encumbering or in any way parting with possession or any further dealings with the two suit parcels. e. Costs of the suit. f. Any other relief which the court will deem t and suitable to grant. In support of her defence, the fourth Defendants led the following evidence. i. Copy of the order dated 4/2/2014 in Miscellaneous Application Number 5 of 2014, at Kajiado Principal Magistrate’s Court which revoked the title deeds issued to the Plainti in respect of the suit parcels. ii. Copy of title deeds for L.R. 2056 dated 4/2/2014 in the name of the fourth Defendant. iii. Copy of title deed for L.R. 2055 in the name of the fourth Defendant and also dated 4/2/2014. iv. Copies of register for the two parcels both dated 28/8/2001, showing the fourth Defendant as the registered proprietor thereof. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13614/eng@2022-10-12 3

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v. Copies of certicates of ocial search for the two parcels dated 27/11/2015 and 5/10/2015, showing the Plainti as the registered proprietor. vi. Copy of gazette notice no. 4434 of 19th June, 2015, issued by the Land Registrar, Kajiado, seeking to reconstruct the missing registers for the two parcels. vii. Copies of correspondence between the DCIO Nairobi, the District Land Registrar, Kajiado, and the County Land Registrar, Kajiado, concerning the fraud in respect to the registers of the two parcels. 7. At the trial, only the Plainti’s representative and the fourth Defendant testied. Each one of them adopted their evidence led earlier. They were then cross-examined by the counsel for the adverse party. 8. Even though the fourth Defendant’s counsel was to le written submissions by 24th May, 2022, no such submissions had been led by mid-August, 2022. The Plainti’s counsel led his submissions on 14th July, 2022. 9. In his submissions, the Plainti’s counsel identied only one issue for determination, namely; Whether the Plainti is the registered proprietor of the two suit parcels and who deserves protection under Sections 24, 25 and 26 of the Land Registration Act. 10. I have carefully considered all the evidence adduced in this case by both sides bearing in mind the burden on the Plainti to establish her claim against the Defendants on a balance of probabilities. Likewise, the fourth Defendant has the burden of proving her counterclaim on a balance of probabilities. I nd that the following issues come up for determination; 11 1. Whether the Plainti’s title to the two parcels has been proven to have been acquired unlawfully, unprocedurally or through a corrupt scheme? 2. Whether the decree in Miscellaneous Applications Numbers 5 and 6 of 2014, Principal Magistrates Court, Kajiado, were ever implemented? 3. Whether sucient material has been presented to cause the cancellation of the registers for the parcels? On the rst issue, I nd that the Plainti is the registered proprietor of the suit parcels. In this regard, I rely on the copies of certicates of ocial search produced by the Plainti as evidence. These certicates are not disputed by the fourth Defendant. Instead, she has conrmed them by ling two such certicates dated 5/10/2015 and 27/11/2015, showing the Plainti as the registered proprietor of the suit parcels. As correctly submitted by the Plainti’s counsel, the eect of registration of the Plainti as the proprietor of the parcels vests in her rights and privileges, which cannot be defeated except under certain circumstances. Such rights are conferred under Sections 24 and 25 of the Land Registration Act (Act No. 3 of 2012). The rights can only be defeated as envisaged under Section 26(a) and (b) of the same Act, that is to say, a. On the ground of fraud or misrepresentation to which the person registered is proved to be a party or https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13614/eng@2022-10-12 4

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b. 12 Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. In this case, the burden would be on the fourth Defendant to prove the above. In this case, I nd that she has not proved any fraud, misrepresentation, illegality, failure of procedure or corruption on the part of the Plainti. Instead, it has been proved that she sold the suit parcels to the Plainti and that, she executed the mutation form that partitioned the original parcel. It is not credible that she gave out her title deed to the Plainti’s mother before she had been fully paid for the suit land. It is not credible that she cannot even remember how much was paid to her and how much the balance was. 13 I am satised that the Plainti acquired good title to the land and this title has not been impeached at all. On the second issue, I nd that the decree in the two Miscellaneous Applications was never implemented. Had it been implemented, the registers for the two parcels would be reecting the fourth Defendant as the registered proprietor of the same. It was incumbent upon the fourth Defendant to follow up and have the decrees implemented. Failure to have the decree implemented casts serious doubt on its authenticity especially when coupled with a copy of title deed which is not supported by the register. 14 The copy of title deed produced by the fourth Defendant and dated 4/2/2014 is very suspicious considering it has the same date as the order issued by the court. No eort was made by the fourth Defendant to explain this serious aw on the part of his documents. On the third and nal issue, I nd that no evidence has been presented before court by the fourth Defendant to warrant the cancellation of the Plainti’s land documents. The fourth Defendant was expected to adduce sucient evidence to enable the court upset the status quo obtaining currently in the land registers for the two parcels. 15 For the above stated reasons, I enter judgment for the Plainti against all the Defendants jointly and severally as prayed for in the plaint. 16 Secondly, I dismiss the fourth Defendant’s counterclaim against the Plainti. I award costs of the main suit and the counterclaim to the Plainti. Order accordingly. DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 12TH DAY OF OCTOBER, 2022. M.N. GICHERU JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13614/eng@2022-10-12 5

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