Shiundu v Malala & another

grandfather one Mr. Mutimba and that during land adjudication in 1967 and after the demise of Mr. Mutimba, the rst defendant fraudulently caused the suit property to be registered in his name despite knowing that the suit property belonged to the plainti by virtue of trust. The plainti further averred that on discovery of the fraud, he led a complaint with the South Wanga Divisional Land Disputes Tribunal and that Tribunal ruled in his favour by ordering that the suit property be transferred to the plainti. That the tribunal’s decision was thereafter adopted as court’s judgment vide Kakamega CM Misc Awards No.125 of 2004 and that on 30th June 2006, the plainti was registered as the proprietor. 4. The plainti went on to aver that the suit property remained registered in his name until 1st July 2010 when it was fraudulently transferred back to the rst defendant’s name purportedly on account of fraudulent and forged order allegedly issued pursuant to an application by the second defendant. That the rst defendant went on to fraudulently and unprocedurally subdivide the suit property into land parcel numbers South Wanga/Bukaya/1276 and South Wanga/Bukaya/1277. 5. The plainti therefore sought judgment against the defendants jointly and severally for: a. A declaration that the transfer of title number S/Wanga/Bukaya/131 in favour of the 1st defendant from the plainti pursuant to a forged court order purportedly issued in Kakamega CM’s Award No. 125 of 2010 was fraudulent, irregular, illegal, unprocedural and a nullity ab initio and the same be revoked and or cancelled forthwith. b. An order that the subdivision of the said title number S/Wanga/Bukaya/131 and the purported creation of title numbers S/Wanga/Bukaya/1276 and 1277 was illegal, irregular, unprocedural, improper and unlawful and the same be revoked and or cancelled and the original title No. S/Wanga/Bukaya/131 be reverted to and the same be transferred to the plainti. c. An order that the transfer of title numbers S/Wanga/Bukaya/1276 and 1277 to the 1st and 2nd defendants respectively and the subsequent title deeds issued were irregularly, illegally, improperly, unprocedurally and unlawfully issued and the same be revoked and or cancelled forthwith. d. A permanent injunction restraining the defendants herein either by themselves or through their relatives, agents, workers, employees, servants and or whomsoever claiming under them from alienating, selling, transferring, trespassing onto, carrying out any works on or in any other manner interfering with the plainti's occupation, possession and use of the suit land L. R. No. S/Wanga/Bukaya/131. e. Costs of this suit and interest. f. Any other or further relief deemed t and just. 6. The defendants led a joint defence in which they denied the plainti’s allegations and prayed that the suit be dismissed with costs. 7. As noted earlier, the matter partly proceeded for hearing on 14th May 2018, when PW1 (the plainti) partly testied and adopted his witness statement led on 9th October 2013 as his evidence in chief. He resumed his testimony on 30th November 2021. He stated that the suit property is ancestral land which initially belonged to his late grandfather Mr. Mutimba and that he is entitled to it by trust being an heir of his said grandfather. That during land adjudication in 1967, after the demise of the plainti’s grandfather and in the plainti’s absence, the rst defendant fraudulently caused the suit property to be registered in his name and later caused it to be transferred in his real name on 24th January 1975. That on discovering the fraud, the plainti led a complaint before the South Wanga Divisional Land Disputes https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16173/eng@2023-03-07 2

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Tribunal and the tribunal held in the plainti’s favour by ordering that the suit parcel be transferred to the plainti. That subsequently, the tribunal’s award was adopted through Kakamega CM Misc Award No. 125 of 2004 and that on 30th June 2006, the plainti was registered as the proprietor of the suit property. 8. The plainti further stated that he remained the registered owner of the suit property until 1st July 2010 when it was fraudulently transferred to the rst defendant based on a court order allegedly issued on 19th May 2010 in Kakamega CM Misc Award No. 125 of 2004. That the rst defendant then subdivided the suit property into title numbers South Wanga/Bukaya/1276 and 1277 which he registered in his name and in the second defendant’s name respectively. The plainti also stated that upon becoming aware of the activities which he termed fraudulent, he made a report to the police and lodged a caution against the title. That upon investigations, the defendants were charged with numerous counts of fraud in Kakamega CM Criminal Case No. 2042 of 2010 but were acquitted. 9. The plainti further testied that his late grandfather died in 1931 before the plainti was born in 1938 and that the suit property was registered for the rst time in 1965. That the rst registered owner of the of the suit property was one Panyako Okelo Malala who was registered as proprietor on 24th November 1967 and that Panyako Okelo Malala’s family has no relationship with Mutimba’s family. He also testied that he owns and resides on parcel number South Wanga/Bukaya/135 which was registered in his name in 1967. 10. The plainti’s case was then closed. 11. During defence hearing, Paul Sakani Okello testied as DW1. He adopted his witness statement dated 16th June 2019 wherein he stated that he is Alfred Sakani Okello’s son, that Alfred Sakani Okello was a brother to the rst defendant herein and that plainti and the defendants herein do not have any relationship at all. That the suit property was rst registered in the rst defendant’s name on 24th November 1967 and that the plainti rst led a claim before the South Wanga Land Disputes Tribunal whose proceedings resulted in Kakamega CM Misc Award No. 125 of 2004. DW1 further testied that the plainti thereafter fraudulently tried to register himself as the owner of the suit property on 30th March 2006 and that through a court order dated 19th May 2010, the suit property was reinstated to the rst defendant, its original owner. That as the registered owner of the suit property, the rst defendant proceeded to subdivide it into two portions known as South/Bukaya/1276 and 1277 and transferred the latter to the second defendant. That the defendants have been in occupation of their parcels and that criminal charges in Kakamega CM Cr. No. 2042 of 2010 were dismissed for lack of evidence. He urged the court to dismiss the suit with costs. 12. Defence case was then closed. Parties thereafter led and exchanged written submissions. 13. The plainti submitted that the rst defendant fraudulently transferred the suit property to his name despite knowing that the suit property was ancestral land belonging to the plainti and that the circumstances under which the defendants got registered as proprietors were fraudulent and a misrepresentation. That, consequently, the defendants’ titles ought to be impeached and the prayers sought granted. 14. In response, the defendants argued that from the plainti’s testimony, it was admitted that the plainti and the defendants have no relationship at all and that it follows therefore that the plainti cannot claim trust. That the plainti has not tendered any evidence to support allegations of a forged court order or to prove fraud. That the subdivision of the suit property was lawful and procedural and cannot therefore be cancelled. That since the defendants are the registered proprietors of the suit property https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16173/eng@2023-03-07 3

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since 1967 and considering that the plainti has never been in possession thereof, the reliefs sought cannot issue. They therefore urged the court to dismiss the suit with costs. 15. I have carefully considered the parties’ pleadings, evidence, and submissions. The issues that arise for determination are whether the plainti has established trust, whether the plainti has established any fraud or irregularity and lastly, whether the plainti is entitled to the reliefs sought. 16. Whether trust exists is a question of fact which must be proven through evidence. The key considerations are the nature of the holding of the land and intention of the parties. In Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another [2018] eKLR, the Supreme Court stated as follows: Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia, that what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benet of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are: 1. The land in question was before registration, family, clan or group land 2. The claimant belongs to such family, clan, or group 3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous. 4. The claimant could have been entitled to be registered as an owner or other beneciary of the land but for some intervening circumstances. 5. The claim is directed against the registered proprietor who is a member of the family, clan or group. 17. There is no dispute that the rst defendant was registered as proprietor of land parcel number South Wanga/Bukaya/131 on 24th November 1967 as Panyako Okelo Malala and that on 24th January 1975, there was a change of name of the registered to read Clement Otieno Okelo. The plainti does not dispute that the rst defendant was the registered proprietor from 24th November 1967 to 30th June 2006 when the plainti became registered owner pursuant to orders made in Kakamega CM Misc Award No. 125 of 2004. On 1st July 2010, the registered proprietor was changed back to the rst defendant, on the strength of another order said to have been issued on 19th May 2010 in Kakamega CM Misc Award No. 125 of 2004. The plainti contends that the order of 19th May 2010 was irregular and even fraudulent. I think that is an issue that should have been raised and determined in Kakamega CM Misc Award No. 125 of 2004 and any subsequent proceedings by way of appeal or judicial review. It cannot be leapfrogged to the present proceedings. Besides, no evidence has been availed to demonstrate the alleged fraud concerning the order. 18. The plainti contends that land parcel number South Wanga/Bukaya/131 is ancestral land that it initially belonged to his late grandfather one Mr. Mutimba and that he is heir of his said grandfather and therefore entitled to it by virtue of trust. He contends that during land adjudication in 1967 and after the demise of Mr. Mutimba, the rst defendant caused the suit property to be registered in his name despite knowing that the suit property belonged to the plainti by virtue of trust. 19. Beyond the bare allegation that land parcel number South Wanga/Bukaya/131 is ancestral land which initially belonged to the plainti’s late grandfather, the plainti has tendered no evidence to support https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16173/eng@2023-03-07 4

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the contention. It has not been demonstrated that land parcel number South Wanga/Bukaya/131 is the plainti’s ancestral land or that there was any intention that the rst defendant holds it in trust for the plainti. In fact, the plainti admitted that no family relationship exists between him and the defendants. The plainti has failed to establish trust. 20. There is no dispute that land parcel number South Wanga/Bukaya/131 was subdivided into title numbers South Wanga/Bukaya/1276 and South Wanga/Bukaya/1277. South Wanga/Bukaya/1276 was registered in the rst defendant’s name while South Wanga/Bukaya/1277 was registered in the second defendant’s name. 21. The registered proprietors of land parcel numbers South Wanga/Bukaya/1276 and South Wanga/ Bukaya/1277 are entitled to the rights, privileges, and benets under Section 24 of the Land Registration Act. Further, Section 26 of the Act obligates the court to accept their certicates of title as conclusive evidence of proprietorship, unless of course the provisos under Section 26 (1) (a) or (b) are established. 22. The plainti’s allegations of fraud require proof to a standard above a balance of probabilities but not beyond reasonable doubt. See Kuria Kiarie & 2 others v Sammy Magera [2018] eKLR and John Mbogua Getao v Simon Parkoyiet Mokare & 4 others [2017] eKLR. As noted earlier, the plainti’s allegations of fraud and irregularities revolve around circumstances in which orders were made in Kakamega CM Misc Award No. 125 of 2004 and registration eected pursuant to such orders. Since this court is not sitting on appeal or review of the orders made in Kakamega CM Misc Award No. 125 of 2004, this court lacks jurisdiction to determine legality or otherwise of the orders. I nd that the plainti has failed to establish fraud or irregularity. 23. In view of the foregoing, I nd no merit in the plainti’s case. I dismiss it with costs to the defendants. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 7TH DAY OF MARCH 2023. D. O. OHUNGO JUDGE Delivered in open court in the presence of: Ms Muthami holding brief for Mr Akwala for the plainti No appearance for the defendants Court Assistant: E. Juma https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16173/eng@2023-03-07 5

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