Mischeck v Nthiga

2. 3. 4. 5. 5. The learned chief magistrate erred in law and fact in relying heavily on the allegations raised by the respondent which allegations were not substantiated. 6. The learned chief magistrate erred in law and fact in failing to properly analyse the evidence tendered by the parties. 7. The learned chief magistrate erred in law and fact in failing to consider that the respondent did not have the locus standi to present the suit. 8. The learned chief magistrate erred in law and fact in failing to give the necessary weight to the plainti’s evidence. The appellant prays that: a. That the judgment in Embu C.M’s Civil Case no. 12 of 2015 be set aside and/or varied. b. That the respondent’s suit be dismissed. c. That judgement be entered in favour of the appellant as sought in his counterclaim. d. That costs of the appeal be provided for. The respondent through her plaint dated 03.02.2015 in the lower court was seeking the following orders: 1. This honourable court do order defendant his family and any one claiming right of ownership or right of occupation by himself or through defendant do vacate plainti’s land within 30 days. 2. That if defendant or anyone claiming under him fails to vacate the suit land within 30 days the honourable court do order defendant eviction under supervisions of ocer in charge Ishiara police station. 3. Costs of this suit be provided for. The appellant led a defence and counterclaim and later amended the same where he denied that the respondent was entitled to the orders of eviction as sought. It was his case that he is the absolute registered proprietor of the suit land with no encumbrances. In his counterclaim he sought the following orders; 1. That the plaint be dismissed with costs to the defendant. 2. A permanent injunction to issue restraining the plainti whether by herself, relatives, agents, persons claiming under her, servants or otherwise howsoever from occupying, construction upon, farming, trespassing, alienating, disposing or in any other manner interfering with the defendant’s peaceable occupation of LR No. Evurore/Nguthi/1325 situate in Embu County. 3. An order of eviction directing the plainti, her family members, servants, employees and/ or agents or any other person claiming under her to vacate parcel of land no. Evurore/ Nguthi/1325 forthwith failing which they be forcefully evicted. 4. Costs. The record shows that in the lower court, the parties on 27.08.2018 by consent agreed to le written submissions on the suit and to have the evidence they had produced adopted without the witnesses testifying. The record shows that the respondent in support of her case led the following documents: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 2

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a copy of the register for the suit land showing Ibrahim Nthiga and Mathew Mugo as proprietors of the suit land, judgement in Embu High Court Civil Case no, 165/2008 and its decree, judgement in civil appeal no. 110/2011 at the court of appeal in Nyeri, Submissions and judgment in Miscellaneous Judicial Review case no. 49 of 2014 at the ELC Court at Embu. 6. The applicant on the other hand led the following documents: Proceedings in Mbeere African Court case no. 10 of 1964, proceedings in Ministers appeal case no. 1 of 1976, Order of HCCA no. 36 of 1978, Bundle of letters, Sketch map, bundle of photographs, green cards for the suit land, order dated 20.07.2015, Chief’s report dated 13.08.2014. 7. The respondent’s submissions in the lower court were led on 27.09.2018 whereas the appellant’s were led on 05.11.2018. 8. The trial court delivered judgment on 28.10.2019. In its judgement, the court pointed out that it had tasked the parties in the suit to clarify certain issues including: whether the High Court and the Court of Appeal had heard and determined the dispute and if so can the court rehear the case; who was in occupation of the land; when did the party in possession gain possession; the court asked each party to provide clear and colored photographs to show their property on the land and for them to propose the way forward. The court noted that only the appellant addressed those issues. 9. The court went to nd that the suit could not be divorced from Embu High Court Civil Case no 165/2008 and Civil Appeal no. 110/2011 at the court of appeal in Nyeri as the case was founded on the same facts as those in the two cases. That the court had no jurisdiction in the matter as it had already been determined by two higher courts. That Ibrahim Nthiga and Mathew Mugo were the legal owners of the suit land from the copy of register led by the respondent when she led suit. That it was beyond question that the appellant is not the registered proprietor of the land and the respondent being the wife of the legal owner is entitled to half of the land while the other half was the property of the family of Mathew Mugo. The court found that the respondent’s suit succeeded to the extent that the appellant was to be evicted after the strict provisions of Section 152 of the Land Act had been complied with. The appellants counterclaim was dismissed. 10. On 20.03.2024, it was agreed that the appeal would also be disposed of by way of written submissions. The appellant’s submissions were led on 06.04.2023. It was submitted that the appellant had produced copies of a land certicate, ocial search and a green card with regard to the suit land. That there was also a bundle of letters from the Chief Land Registrar, National Land Commission, the Ombudsman and the Land Registrar Mbeere which the trial court failed to consider. That the green card which they produced shows the appellants name being the rst registered proprietor in the year 1979 and that he was issued with a land certicate in the year 1981. That the trial magistrate erred by failing to consider section 26(1) of the Land Registration Act and ignoring the rights of a proprietor acquired on rst registration which are not liable to be defeated in any manner as per section 25 of the same Act. 11. That the green card entries show the appellant as the rst registered proprietor issued with a land certicate. That the land was later restricted pending an order from the Chief Land Registrar and pending nalization of an appeal case before the minister. That the restriction was removed on 18.12.1997 vide a Chief Land Registrars letter and on the same date, the name of the respondent’s husband Ibrahim Nthiga and Mathew Mugo registered as subsequent owners. That the respondent’s husband passed on in the year 1987 yet he was registered as proprietor in the year 1998 which was illegal, fraudulent and un procedural as a dead person cannot be registered as owner of property thus his appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 3

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12. It was submitted further that the appellant raised several complaints to the Chief Land Registrar’s oce which resulted in the said registrar issuing an entry no. 8 which showed him as the current owner of the suit land. That the magistrate failed to consider the fact that the appellant is the one issued with the land certicate for the suit land and that his name appears as the rst and current registered proprietor. He submitted further, that he produced several photographs to prove that he was in occupation of the suit land which has been the case since he was born in the year 1950’s. That the suit land is the only land he has and known to be home. That the land measures approximately 6 acres and he has been in absolute ownership of the entire land since the year 1979 until the year 1998 when the respondent trespassed into a portion of about 2 acres. 13. It was submitted further, that the trial court failed to recognize the appellant’s rights as provided for under Article 40 and Article 23 of the constitution, Section 25 and 26 of the Land Registration Act and section 28 of the repealed Registered Land Act. That the order of eviction of the appellant from his land was unjust, baseless and was against the appellant’s constitutional right to own property. That further, the respondent lacked the locus standi to prosecute the suit for the benet of the deceased since she did not obtain letters of administration before commencing the suit. The provisions of Section 82(a) of the Law of Succession Act were made reference to in support of this. It was submitted that the trial proceeded in complete ignorance of the law. It was then urged that the appeal be allowed. The case of Munyu Maina v Hiram Gathiha Maina (2013) Eklr was cited in support of the submissions. 14. The respondent on the other hand led submissions on 30.04.2023. She identied the issue for determination as whether the learned chief magistrate ignored the evidence of the appellant that he was the registered proprietor of the suit land in 1979. It was submitted that the trial magistrate summarized the appellant’s case and noted that he had been registered as owner of the suit land in 1979. That the trial magistrate also listed all the documents produced by the appellant in evidence. That after consideration of both parties evidence, the trial court determined that the issue of ownership of the suit land among other parcels of land had been determined in Minister’s Appeal case no. 1 of 1976, High Court Civil case no. 165 of 2008 and in Civil Appeal no. 110 of 2011 which cases were determined in favour of the respondent’s Nditi clan. 15. It was submitted further, that as at today, the decision of the minister in Minister’s appeal case no. 1 of 1976 has never been successfully challenged and the subsequent action by the Chief Land Registrar of registering the suit land in favour of the respondent’s husband’s name as a joint owner still stands. That it is trite law that the minister’s decision is nal as provided for in section 29(1) of the Land Adjudication Act. That the same position was reiterated by the Court of Appeal in Timotheo Makenge v Manunga Ngochi (1979) Eklr and in Robert Kulinga Nyamu v Musembi Mutunga & Anor (2022) Eklr. That the respondent’s husband’s registration as a joint owner of the suit land pursuant to the ministers decision was valid and should be recognized as noted by the trial magistrate. 16. It was submitted further that the appellants assertion that he was not a party to the minister’s appeal no. 1 of 1976 and the said appeal cannot be said to have determined his rights cannot be sustained. That the minister’s appeal was a representative suit brought by representatives of Mukera clan against Nditi Clan. That the parcels of land that were subject of the appeal were listed by the minister which included the appellants parcel. That the appellant has never in his personal capacity successfully challenged the decision of the minister which decision remains unchallenged to date. 17. Further, it was the respondents submissions that her husband’s registration as joint owner of the suit land while already deceased was made pursuant to orders of the minister and rectication of the register was done on several parcels of land named in the said decision not just the suit land. That the chief land registrar was only implementing the orders of the minister and would not reasonably have known that https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 4

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some of the owners had passed on. That the rectication was done by a competent authority and was not instigated by the respondent or her husband thus no illegality or irregularity was committed. 18. That the subsequent registration of the appellant as the registered owner of the suit land by the alleged administrative action was null and void ab initio as the chief land registrar had no power to cancel the title issued to the respondent’s husband in the absence of a court order. The case of Harrison Kiambuthi Wanjiru & Anor v District Land Registrar Nairobi & 3 others (2022) making reference to the cases of Mombasa Appeal No. 98 of 2016 Super Nova Properties Ltd & Anor v District Land Registrar Mombasa & 2 Others, Kenya Anti-corruption Commission & 2 Others (Interested Parties) (2018) Eklr were the court held that the land registrar has no power to cancel a registered owners’ title in the absence of a court order were cited. 19. It was submitted that from the above, the learned trial magistrate did not err in upholding Ibrahim Nthiga and Mathew Mugo as the legal owners of the suit land. That further, the appellant did not raise the issue of locus standi in the trial court hence the same ought not to be canvassed in the appeal. That in addition, the respondent is the legal representative of the estate of Ibrahim Nthiga issued with grant of letters of administration vide Embu High Court Succession Cause no. 668 of 2002 (formerly Embu SPM Succession cause no. 153 of 2000) which grant was part of the lower court record. That the appellant admitted in his amended defence and counterclaim and to this court that he has been in occupation of part of the suit land. That the court having found that the respondent’s husband was the legal joint owner of the land, din not err in ordering the eviction of the appellant from the suit land. It was urged that the appeal be dismissed. 20. I have considered the appeal as led, the parties submissions, and the entire court record in general. My duty as the rst appellant court is to re-evaluate and re-assess the evidence that was before the lower court and make my own conclusions while bearing in mind that the lower court had the advantage of handling the evidence rst hand. The decided cases of Selle Vs Associated Motor Boat Company Limited [1968] EA 123 and Mbogo Vs Shah [1968] EA 93 serve to remind me that I should not rush to interfere with the ndings of fact by the lower court unless I am completely convinced that the lower court was wholly wrong in its appreciation of the evidence before it. 21. It is my view that the issue for determination can be deduced from the grounds of appeal as whether the learned trial magistrate misdirected herself on the law and facts in allowing the respondents suit and ordering the appellant’s eviction from the suit property. 22. From the material before me, it is in no doubt that land parcel Evurore/Nguthi/1325 the suit land herein, has been part of a long drawn dispute between two clans being Mukera Clan to which the appellant belongs to and Nditi clan to which the respondent’s husband belongs. The land was part of other parcels of land that were the subject of adjudication disputes which led up to Ministers Appeal no. 1 of 1976 which was determined in favour of Nditi clan. The Minister made orders awarding various parcels of land to the members of Nditi clan among them the respondent’s husband who was awarded parcel 1325 jointly with a Mathew Mugo in equal shares. Land parcel 1325 initially belonged to the appellant who had been registered as the owner of the same in the year 1979 as a rst proprietor. 23. Following the orders of the minister, a restriction that had been placed on the parcels of land including the suit land were removed and the land was registered in favour of Ibrahim Nthiga - the respondent’s husband jointly with Mathew Mugo. This eectively cancelled the appellant’s title to the suit land. The members of Mukera clan vide Embu High Court Civil case 165 of 2008 unsuccessfully challenged the decision of the minister seeking a declaration that the same was unlawful and thereafter appealed to the court of appeal on the High Court’s decision vide Nyeri Civil Appeal no. 110 of 2011 which was also unsuccessful. The Ministers decision therefore remained unchallenged. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 5

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24. It appears that the appellant took it upon himself to lodge a complaint to the Chief Land Registrar that his land had been registered to a stranger. He produced several correspondence between the oce of the District Land Registrar Mbeere, the Chief Land Registrar and the Oce of the Ombudsman where the suit land was eventually purported to revert to him. It appears that it is on the strength of these events that the respondent led the suit the subject of this appeal in the lower court seeking to have the appellant evicted from the suit land. 25. The appellant complains that the trial court ignored his evidence that he was registered as proprietor of land parcel 1325 in 1979. However, from the lower court judgement, the court observed “the members of Mukera clan have never been able to overturn the second ruling of the minister which reversed their ownership of some of the land parcels indicating the defendants. They have gone all the way to the court of appeal and lost. They cannot succeed in this case because under our law, decisions of higher courts are binding on lower courts.” 26. It is not in dispute that the cancellation of the appellant’s title to the suit land and the subsequent registration of the respondent’s husband jointly with the other party was made pursuant to the decision of the minister in Minister’s Appeal no. 1 of 1976. It cannot be said enough that the appellant’s title issued in 1979 was nullied by the minister in his decision which decision has never successfully being challenged to this day. The Mukera clan led a judicial review application in the High Court challenging the decision of the Minister but they were unsuccessful. They led an appeal to the same in the court of appeal but had it withdrawn before it was heard. They later led a declaratory suit in Embu High Court Civil Case No. 165 of 2008 seeking a declaration that the Ministers ruling was unlawful and therefore null and void which suit was also dismissed for lack of merit. They lodged an appeal to the Court of Appeal in Nyeri Civil Appeal No. 110 of 2011 seeking to appeal the decision of the High Court which appeal was also dismissed. As it stands therefore, the Minister’s is still unchallenged. 27. It is not in doubt neither can it be said enough that the decision of the minister as per section 29(1) of the Land Adjudication Act is nal and cannot be challenged except by way of judicial review. Section 29(1) of the Land Adjudication provides as follows: “ Any person who is aggrieved by the determination of an objection under section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by— (a) delivering to the Minister an appeal in writing specifying the grounds of appeal; and (b) sending a copy of the appeal to the Director of Land Adjudication, and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be nal.” 28. The appellant having never challenged the Minister’s decision that transferred his alleged parcel of land to the respondent’s husband and his counterpart, he cannot succeed in a suit seeking to validate his rst registration in 1979. The trial court magistrate was therefore not wrong in holding that they lacked the jurisdiction in the matter in as far as it concerns the validity of the appellant’s title issued in 1979. 29. Further, the appellant also pointed out that he had managed to acquire his title back after lodging complaints to the chief land registrar that his land had been registered to strangers. He produced in evidence correspondences conrming the same. The respondents challenged the said title on the grounds that the Chief Land Registrar did not have the power to cancel a title issued to another party without a court order. I must agree with the respondents to that extent. The Minister’s decision was what resulted in the respondent’s husband and his counterpart being registered as proprietors of the suit land and the only way that registration could be altered was through the minister’s decision being set aside or through a court order which was not done. I nd useful guidance in the respondent’s cited https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 6

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case in their submission on the same issue that is the case of: Harrison Kiambuthi Wanjiru & another v District Land Registrar Nairobi & 3 others [2022] eKLR where the court observed as follows; “ In the instant case, title to the Plaintis was revoked and/or cancelled on the basis of fraud, which the Plaintis have now challenged and have averred that the 1st Defendant lacked the power to cancel the said title. The 1st Defendant alleges that the power to cancel title was drawn from Section 79(2) of the Land Registration Act. Part VIII of the Act makes provisions for the rectication of title, which can be done by either the Registrar or by Court Order. Rectication by the Registrar under Section 79. (1) The Registrar may rectify the register or any instrument presented for registration in the following cases— (a) In formal matters and in the case of errors, mistakes or omissions not materially aecting the interests of any proprietor; (b) In any case and at any time with the consent of all aected parties; or (c) If upon resurvey, a dimension or area shown in the register is found to be incorrect, in such case the Registrar shall rst give notice in writing to all persons with an interest in the rectication of the parcel; (d) For purposes of updating the register; (e) For purposes of correcting the name, address or other particulars of the proprietor upon the written application by the proprietor in a prescribed form.” The court went on to say: “The foregoing provisions envision rectication that does not aect the rights/interest of registered property loosely translated, basic and apparent errors or mistakes. The rectication can only occur with the proprietor’s consent unless: (a) The proprietor has by fraud or lack of proper care caused or substantially contributed to the error, mistake or omission; or (b) It would for any other reason be unjust for the alteration not to be made. The registered proprietor is issued with a 90 Days’ Notice of the intention to alter the register. The Registrar will then dully enter the details in the register as per the changes. An aggrieved party may then seek recourse in Court. On the other hand, rectication by Court Order occurs as pursuant to Section 80 of the same Act, which provides;(1) Subject to subsection (2), the Court may order the rectication of the register by directing that any registration be cancelled or amended if it is satised that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectied to aect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 7

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of which the rectication is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default. Rectication by Court concerns and/or involves cancellation or amendments of title, circumstances of which are provided above. The Registrar does not therefore have the power to cancel title of a registered proprietor, unless under the express Order of the Court. The 1st Defendant has submitted that they relied on the provisions of Section 79(2) of the Land Registration Act. A reading of the said section shows that the Act makes reference to alteration of title without consent, if it is established that the error, mistake or omission was obtained by fraud or lack of proper care. The rectication is limited to errors, mistake or omission, which do not materially aect the rights of registered proprietor. This Court agrees with the sentiments of the Court in Kisumu Misc No. 80 of 2008 Republic V Kisumu Disrict Lands Ocer & another [2010] eKLR where the Court held “it is clear that it is only the Court that can cancel or amend if where the Court is of the view that registration has been obtained, made or omitted through fraud or mistake and only where it is not a rst registration”. Similarly the Court of Appeal in Mombasa Appeal No. 98 of 2016 Super Nova Properties Limited & another v District Land Registrar Mombasa & 2 others; Kenya Anti-Corruption Commission & 2 others (Interested Parties) [2018] eKLR agreed with the trial Court that “The only institution with mandate to cancel a title to land on the basis of fraud or illegality is a Court of law” 30. So the question that remains is whether the trial court ought to have ordered for the eviction of the appellant from the suit land. Having found that the respondents are the legal registered owners of the suit land, then the appellants presence on the land is unfortunately without authority. This also means that his counterclaim equally fails as rightly held by the trial court. This is because this court cannot issue a permanent injunction against a registered proprietor of land neither can they order for their eviction. 31. On the issue of the respondent having the locus standi to bring this suit. The respondent’s adequately responded to the same in their submissions that the same did not come up at the point of trial and therefore it cannot be raised in an appeal. 32. The upshot of the foregoing is that the appeal fails. This court nds no reason to interfere with the judgement of the lower court and thereby upholds the same. However, this court will not be making any order as to costs meaning that each party shall bear their own costs of the appeal. JUDGEMENT DATED, SIGNED AND DELIVERED IN OPEN COURT AT EMBU THIS 7TH DAY OF NOVEMBER 2024. A. K. KANIARU ENVIRONMENT & LAND COURT JUDGE In the presence of; Ms. Mukami (absent) for Respondent Githinji (absent) for appellant Court Assistant: Leadys https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14237/eng@2024-11-07 8

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