Hellen Nyote Nkoitiko (Suing as the Administratix of the Estate of Mutae Ene Nkoitiko (Deceased) v Mangori & 2 others

e. Any other or further relief that this court may deem t and just to grant. This is as per the amended plaint dated 29/10/2014. 2. The plainti’s case is as follows. Her mother was the registered owner of LR. Kajiado/Kaputiei Central/949. The mother is now deceased. In the year 2010, the plainti and the rst defendant engaged in negotiations whereby the rst defendant was to purchase 44 acres out of the suit land. The negotiations failed due to the rst defendant’s fault. The plainti rescinded the intended sale. This prompted the defendant to le a case at the land Disputes Tribunal which ruled in favour of the defendant. The plainti led judicial review proceedings but she discovered that the rst defendant had managed to have the suit land sub-divided into two parcels namely 1825 and 1826 respectively whereby the plainti carved out the disputed 44 acres for himself. On 5/11/2010, the rst defendant was registered as the proprietor of LR.1826 while the other parcel NO.1825 was registered in the name of the plainti. The plainti avers that there was fraud on the part of the rst and second defendants. The fraud on the part of the rst defendant includes hoodwinking the plainti who is illiterate into signing an agreement saying that she had received payment when she had not. The fraud on the part of the second defendant entails transferring the suit land while the registered owner was deceased and yet no letters of administration had been issued. Secondly, the Land Registrar eected the transfer without the necessary consent of the land control board. 3. In support of her case, the plainti led the following evidence. 4. i. Her own witness statement. ii. Copies of title deed for LR. Kajiado/Kaputiei Central 1825 and 1826, copy of register for LR.949, Certicate of death for Mutae ene Nkoitiko, adavit by Francis Lesinko alleged agreement between the plainti and the rst defendant, grant of letters of administration ad Litem and Notice of intention to sue issued to the Attorney General. The rst defendant, through counsel on record led a written statement of defence dated 6/12/2013 in which he states as follows. Firstly, at the time of the sale agreement, the plainti was the registered owner of the suit land having been registered on 29/10/2004. Secondly, the letters of administration alluded to in the plaint were not necessary since the plainti’s mother was not the registered owner. 5. Thirdly, the rst defendant moved to the land disputes tribunal when the plainti became reluctant to transfer the 44 acres which he had paid for in full. At the tribunal, the rst defendant was advised that it was the right forum to deal with the dispute after which the plainti voluntarily sub-divided the original parcel and then transferred the 44 acres to the rst defendant after signing all the relevant documents including the mutation form, the application for the consent of the Land Control Board and the transfer instrument. 6. Fourthly, LR. No. Kajiado/Kaputiei Central/949 did not belong to the plainti’s deceased mother. The records held by the second defendant show that the disputed parcel was a result of sub-division of Kajiado/Kaputiei/434 which was registered in the name of the plainti on 29/10/2004. The other two parcels namely 947 and 948 were registered in the names of the plainti’s sisters who are Emily Ntilale Nkoitiko and Kamonon ene Nkoitiko. For all the above reasons, there is no fraud on the part of the defendants and the plainti is not being truthful because Machakos Misc. Application No.160 of 2011 which she led is still pending. He prays for the dismissal of the plainti’s case. 7. In support of his case, the rst defendant led the following evidence: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20445/eng@2023-10-04 2

page 2 of 4

i. Witness statements by himself, Francis K. Lesinko, Kamonon ene Nkoitiko and Emily Ntilale Nkoitiko. ii. Copy of agreement dated 23/7/04 and supporting documents. iii. Copy of title deed for LR 949 in the name of the plainti and dated 29/10/2004. iv. Copies of mutation for LR.949, Certicate of ocial search, registers for LR Nos. 947,948 and 949, court order issued in Machakos HC Misc. Case No.160 of 2011 and dated 7/7/2011 and ID’s for the defendants, Francis Kasirikua Lesinko, Kamonon ene Nkoitiko and Emily Ntilaale Nkoitiko. The second and third defendants did not enter appearance or le any defence. 8. At the trial, the plainti did not turn up to prosecute her case. Neither did her counsel. The court deemed the plainti’s case as closed in order that the issues raised in the entire case would be dealt with once and for all. The rst defendant who was present with his counsel and witnesses testied on oath, produced his documents and called one witness by the name Emily Ntilaale Nkoitiko. His evidence is that he bought the land and occupied it after paying the fully purchase price. The plainti led this suit when she realized that the plainti would be paid compensation because the Standard Gauge Railway. She wanted a share of the compensation and the entire suit serves no other purpose. 9. Counsel for the parties led written submissions on 19/1/22 and 2/5/2023 respectively. The plaintis’ counsel did not identify any issues for determination. The rst defendant identied two issues namely; a. Whether the plainti’s suit is tenable? b. Who bears the costs? I have carefully considered all the evidence on record including the witness statements and documents led by both parties, the testimony at the trial, the submissions led by the counsel for the parties and issues and the law in the submissions. Further to this, I have considered the issues raised in the pleadings and I nd them to be as follows: i. In whose name was the suit land registered at the time of the disputed sale agreement? ii. Whether it was necessary for the plainti to obtain letters of administration before entering into the agreement? iii. Whether the requisite procedures were complied with before the rst defendant was registered as owner of the 44 acres? iv. Who has the burden of proof and it has been discharged? v. Who bears the costs? 10. On the rst issue, I nd that the suit parcel was registered in the name of the plainti on 29/10/2004 and not in the name of her mother. It was therefore not necessary that the plainti should have obtained any letters of administration to deal with land that was already in her name. 11. On the third and fourth issues, I nd that it is the plainti who has the burden of proof because she is the one alleging fraud and the standard of proof is higher that the ordinary one of proof on a balance https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20445/eng@2023-10-04 3

page 3 of 4

of probabilities. In the case of Elizabeth. Kamene Ndolo v George Matata Ndolo, Civil Appeal No 128 of 1995, the Court of Appeal had this to say, “ We start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation lay squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases, namely proof upon a balance of probabilities; but the burden of proof on the respondent was certainly not one beyond a reasonable doubt as in criminal cases”. In this case, the plainti alleged fraud at paragraph 11 of the amended plaint. She has not proved any of the three pleaded particulars of fraud. She has merely alleged. This is especially so because the rst defendant, who had no burden of proof, has proved that he paid for the suit land fully as per the evidence of the plainti’s own sister. It was incumbent upon the plainti to prove that the procedures of sub-division and transfer were not complied with but she has not done so. 12. For the above stated reasons, I nd that the plainti’s suit has no merit at all and I dismiss it with costs to the defendants. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 4TH DAY OF OCTOBER 2023. M.N. GICHERU JUDGE In The Presence Of: Musyoka for the Plainti present. Sankale for the 1st Defendant present. N/A for 2nd Defendant. Court Assistant – Mpoye. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20445/eng@2023-10-04 4

page 4 of 4