Muraguri v Ngochi & 3 others (Environment and Land Appeal E025 of 2023) [2026] KEELC 1937 (KLR)

2. The Memorandum of Appeal details the grounds of appeal as follows: 1) THAT the Magistrate erred in law and in fact in ignoring the evidence of the expert, which had not been controverted by the Respondents. 2) THAT the Magistrate erred in law and in fact usurping the role of an expert and purporting to act like one. 3) THAT the Magistrate erred in law and in fact in finding that the 2 nd Respondent participated in selling or sold off Plot No.Iria-Ini/KIRIA/747/27 which had specifically been denied by the 2 nd Respondent. 4) THAT the Magistrate erred in law and in fact in finding that the procedure followed by the 1st Respondent was lawful while the same had been faulted by the 2nd. 3rd and 4th Respondents. 5) THAT the Magistrate erred in law and in fact in ignoring the evidence led by the Plaintiff and his witness. 6) THAT the Magistrate erred in law and in fact in giving a blank reason of not believing the expert’s evidence as stating of being cautious does not amount to any ground. 7) THAT the learned Magistrate erred in law and fact in ignoring the submissions by the Appellant. 3. Appellant prays for the following orders: a) The Appeal be allowed. The judgment against the Appellant therein be set aside and be substituted with one allowing the Appellant’s suit. b) Costs of this appeal. Page 2 of 18 ELCA E025 OF 2023

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Summary of the case before the trial Court 4. The suit before the trial court was instituted through the Plaint dated 3 rd December 2013 in which the Plaintiff, who is the Appellant herein stated that prior to his transactions with the 1st and 2nd Defendants, he was the registered proprietor of the property L.R No. Iriani/Kairia/747/27. 5. The Plaintiff was granted a loan of Ksh.5,500,000/=, by the 2 nd Defendant on the security of his 3 properties namely L.R No. Iriani/Kairia/747/27, L.R No. Karatina Town Block 576 and Iriaini/Kiaguthu/688. 6. The Plaintiff averred that he serviced the loan until on or around 22 nd May 2012, when he failed to service the same. Accordingly, the 2nd Defendant advertised the security for sale to realize the loan plus interest. 7. This prompted the Plaintiff to enter into an agreement for the sale L.R No. Karatina Town Block 1/576 with the permission of the 2 nd Defendant at a consideration of Ksh.2,000,000/=. It was it was agreed that Ksh.1,000,000/= was to be remitted to the 2nd Defendant within 10 days after the execution arrears and to discharge the title, while the rest was to be paid to the Plaintiff. 8. As per the agreed terms the title for L.R No. Karatina Town Block 576 was to be discharged by the 2nd Defendant and the other two securities, L.R No. Iriani/Kairia/747/27 and Iriaini/Kiaguthu/688 would remain and the 2 nd Defendant would restructure the loan. This restructuring was done vide letter of offer dated 9th August 2012. 9. The Plaintiff states that he was later surprised when he was to be informed by the tenants on L.R No. Iriani/Kairia/747/27 that they had been served with a Page 3 of 18 ELCA E025 OF 2023

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notice to vacate the premises since ownership had changed. The same situation occurred in respect of L.R No. Karatina Town Block 1/576. 10.Upon conducting an official search on L.R No. Iriani/Kairia/747/27, the Plaintiff found out that the said land was registered in the name of the 1 st Defendant. He also found out that the 1st Defendant had applied for a rates clearance certificate and the County Council of Nyeri granted approval. 11.The 1st Defendant filed a defence and denied the Plaintiffs claim stating that the sale of the suit land from the Plaintiff was as willing seller willing buyer. 12.The 3rd Defendant filed a defence and stated that it approved the transfer of the suit land after all the relevant documents were presented to the council. 13.The 4th Defendant filed a defence denying any fraud through omission or commission and that the office carried out its statutory duties as required by law. 14.The Plaintiff denied selling LR.NO Iraini/Kairia/747/27 claiming that transfer to the 1st Defendant was fraudulent but that he sold to the 1 st Defendant LR. Karatina Town Block 1/576. 15.The Plaintiff prayed that the Defendant’s action of transfer of L.R No. Iriani/Kairia/747/27 to the 1st Defendant was unlawful and the signatures on the transfer documents were forgeries. The Plaintiff set out particulars of fraud and prayed for ; Page 4 of 18 ELCA E025 OF 2023

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a. A declaration that the Defendants actions to have property L.R.NO. Iriaini/Kairia/747/27 transferred to the 1st Defendant was unlawful. b. Cancellation of title issue on the 2nd of October 2012 to the 1st Defendant Ephantus Wachira Ngochi of the property L.R. NO. Iriaini/Kairia/747/27 and have the same re transferred to the Plaintiff the original owner. c. In the alternative and without prejudice to the foregoing an order requiring that the 1st Defendant to pay the Plaintiff a total of 10,000,000.00 being the difference of the marker price of the property L.R. NO. Iriaini/Kairia/747/27 as at the time the same was illegally transferred to him and Kshs.2,000,000.00 the 1st Defendant had paid the Plaintiff for the purchase price of the property L.R. NO. Karatina Town Blick 1/576. d. That the 1st and 2nd Defendant be jointly and severally be ordered to pay the Plaintiff for the loss of user earning from the property subject matter of this suit. e. Cost of the suit f. Any other relief that the court may deem fit. 16. The 2nd Defendant also denied the Plaintiffs claim stating that it erroneously indicated in the advertisement the parcel of land for sale as L.R No. Karatina Town Block 1/576 instead of L.R No. Iriani/Kairia/747/27. It stated that the Plaintiff voluntarily sold the suit land to the 1st Defendant. 17.The hearing of the suit began on the 11 th of May 2022, when PW 1, the Plaintiff adopted his witness statement and list of documents dated 3 rd December 2022 and 5th January 2022 respectively as his evidence in chief. The Plaintiff had reiterated the contents of his Plaint in his witness statement, that the Defendants Page 5 of 18 ELCA E025 OF 2023

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went against the agreed terms of sale agreement of the property L.R No. Karatina Town Block 576 to L.R No. Iriani/Kairia/747/27, forging his signature and effecting a fraudulent transfer. 18.Upon cross-examination, the Plaintiff confirmed that he knew the 1 st Defendant from earlier, when he sold one Parcel Block 576 to him. PW 1 also denied that the signature on the transfer form was his, stating that the same was forged. 19.PW 2, James Mutuma was a forensic document examiner working with the Directorate of Criminal Investigation(DCI). He listed the documents containing the known signature of the Plaintiff that he used to conduct his investigation. He produced his report as an exhibit, in which he concluded that there was an alteration on the Plaintiff’s known signature and that they were not made by the same person. 20.DW 1 Ephantus Wachira Goci, the 1st Defendant herein gave his sworn evidence. He adopted his statement of defence dated 22nd January 2014 and his list of documents dated 4th November 2022 as his evidence in chief. His statement was that he purchased L.R No. Iriani/Kairia/747/27 for 2 million shillings and he paid 1 million to Consolidated Bank, the 2 nd Defendant. He denied purchasing LR Parcel Block 1/576 and denied having knowledge of that parcel of land. 21.During cross-examination, the Defendant noted that he and the Plaintiff had produced two different agreements for sale as exhibits and denied the authenticity of his signature in one, stating that was not his signature. Page 6 of 18 ELCA E025 OF 2023

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22.DW 1 also stated that if there was any forgery, it was not by him as all the documents were in the 2nd Defendant is custody and were generated by the Bank. He also denied conducting a valuation on L.R No. Iriani/Kairia/747/27, and stated that it was the Bank that did the valuation. 23.DW 2 Catherine Muthoni, a debt recovery officer with the 2 nd Defendant Bank adopted her witness statement dated 19th January 2022 and bundle of documents dated 5th May 2014 as their evidence in chief. The witness statement is not traceable in the record of appeal. 24.Upon cross-examination, DW 2 stated that she was not working with the 2 nd Defendant Bank at the time of the transaction between the parties, but referred to the documents, stating that the Plaintiff sold L.R No. Iriani/Kairia/747/27 to the 1st Defendant. She stated that she was not aware of LR.576 and that being a private treaty, the Bank was not involved in the transaction and denied any involvement of the Bank thereto. That the Bank only did partial discharge to allow this sale to happen. 25.DW 3 Mark Mutitu Karani, a Valuer by profession relied on his witness statement dated 25th May 2022 as his evidence before the Court. Therein he had identified himself as an employee of the County Government of Nyeri, working as a Principal Housing Officer and is a committee member of the Land and Dispute Resolution Committee. His statement is that when a person desires to transfer ownership of a Plot of Land leased by the County, they fill a transfer form and then books for the next meeting with the committee. The said transfer forms are accompanied by copies of identity cards of both parties, an affidavit by the transferor, sale agreement and any other required documents. Page 7 of 18 ELCA E025 OF 2023

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26.With regards to this case, he noted that there is no existence of such minutes to approve sale and transfer of Plot No. Iriani/Kairia/747/27. 27.Upon cross-examination, he stated that the he did not have the minutes book with him and that the County Government doesn’t usually ask for the Agreement of sale. This property was earmarked as being involved in a fraudulent transaction because of this court case and he stated that the same should not belong to the 1st Defendant. 28.DW 4, Maryanne Mukami Mugire, Land Registrar at Nyeri Land Registry brought with her the Green Card for L.R No. Iriani/Kairia/747/27 to Court. She noted that the same was registered in the Plaintiff’s name since 28 th April 1997, and was later charged to the 2nd Defendant Bank in 2012. A transfer to the 1st Defendant was registered (proceedings indicate untenable dates) and the 1st Defendant took charge from Consolidated Bank. She also produced a transfer from the Plaintiff to the 1 st Defendant accompanied by a consent letter from the City Council of Nyeri. 29.Upon cross-examination, she stated that for leasehold registration, their office requires consent from the City Council and the Transfer Document. On why the discharge of charge and the transfer to the 1 st Defendant were both done on the same date 2nd October 2012, she stated that in her experience, it is done if an owner is transferring and discharging a parcel of land at the same time. She could not say if the Plaintiff did a discharge or recharge. 30.Parties closed their cases and filed their respective written submissions. Page 8 of 18 ELCA E025 OF 2023

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31.Judgment by the Trial Court was delivered on the 18 th of December 2023, where the Court found that the Plaintiff had failed to prove fraud, irregularity, unprocedurality on the part of the defendants to warrant the Court to cancel the title and dismissed the suit with costs to the defendants. Appellant’s written submissions 32.Counsel for the Appellant submitted that the trial Magistrate ignored the evidence given by the expert witness, the government document examiner, that the signatures on the agreement for sale were not made by the Appellant, yet upheld the same, usurping the role of an expert. 33.Further, it was submitted that it was evident that the Appellant did not participate in the sale and transfer of the said plot, and that the procedure followed by the 1st Respondent was wrong to transfer the suit property to himself. 34.Counsel noted that the documents were signed by the County Government of Nyeri then forwarded to Nairobi and back to Nyeri on the same date, which is submitted was not explained. Their submission is having demonstrated the falsification of documents and procedural irregularities, the title held by the 1 st Respondent should not stand and prayed that the appeal be allowed. 2nd Respondent’s submissions 35.Counsel for the 2nd Respondent submitted that that there was no fraudulence on the part of the 2nd Respondent since, when parties elect to sell by way of private treaty, the parties chose their own Advocates to effect the sale. That in normal Page 9 of 18 ELCA E025 OF 2023

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course of business financial institutions do not have the expertise to verify whether signatures in a sale agreement are indeed authentic and or proper. 36.It is further submitted that there is no privity or nexus of contract between the 2nd Respondent Bank, the Appellant and 1st respondent. They maintain that there is no cause of action against the 2nd defendant. 37.It is also their case that the Appellant tampered with the Bank’s Security Land Parcel No IRIANI/KAIRIA/747/27, the subject herein and entered into another sale agreement between himself and one Edward Njoroge Mwangi without the knowledge, involvement and or authority of the Bank. 38.They also beseech this court to take notice that there is an undated agreement which was filed and should be expunged and dismissed because it cannot be relied on for want of a date because it cannot be clear to this court when the same was executed. The same was marked as Exhibit No 2 in the 1st defendant’s list of documents dated 4th November 2022. 39.In addition to this, the 2nd Respondent’s submission that from the Appeal filed, there is no certified copy of the formal decree or order in the record of appeal, which renders the appeal incompetent and liable to be struck out. That it has been held that an incompetent appeal due to the omission of a primary document like a decree, divests the Court of the jurisdiction to consider the case. The Appellants have not made any attempt to rectify the omission. There is nothing before this Court to be challenged. On this point, they relied on the following cases: Lucas Otieno Masaye V Lucia Olewe Kidi [2022] KEELC Page 10 of 18 ELCA E025 OF 2023

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Salama Beach Hotel Limited and 3 others vs Kenvariri & Associates Advocates [2017 eKLR Bwana Mohamed Bwana vs Silvano Buko & 2 Others [2015] Eklr 40.Their final submission is that failure to include a decree is fatal as the same goes to the root of the appeal and jurisdictional aspect of the court and that the appeal is therefore incompetent in the absence of a certified copy of the decree. RESEARCH 41.The role of an appellate court was stated in the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, and was summarized as follows: “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” 42.Having considered the Appellant’s Memorandum of appeal and rival submissions, I opine the following issues arise for determination: 1) Should the appeal be struck out for failure to include the Decree in the Record of Appeal? 2) Did the Trial Magistrate err in ignoring the evidence presented before the Court and dismissing the suit? 1) Should the appeal be struck out for failure to include the Decree in the Record of Appeal? Page 11 of 18 ELCA E025 OF 2023

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43.The 2nd Respondent has raised issue that the appeal is fatally defective for failure to include a copy of the Decree in the Record of Appeal. Order 42 rule 13(4) of the Civil Procedure Rules provides that: “Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say— (a)the memorandum of appeal; (b)the pleadings; (c)the notes of the trial magistrate made at the hearing; (d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing; (e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate; (f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal: Provided that—(i)a translation into English shall be provided of any document not in that language; (ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).” 44.The requirement therefore under the law is to include the judgment, or order or decree appealed from in the Record of Appeal. Thus, if only judgment is available this will suffice, contrary to what the 2nd Respondent contends. The Page 12 of 18 ELCA E025 OF 2023

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Court in the case of Nyota Tissue Products v Charles Wanga Wanga & 4 Others [2020] KEHC 6207 (KLR observed as follows: “The rule applicable to the appeals to the High Court makes provision under Order 42 rule 13 (f) of the Civil Procedure Rules for the filing of a copy of the “judgment, order or decree appealed from” and does not make it mandatory to attach the judgment and the decree. The Record of Appeal herein attached the Judgment of the trial court according to the requirements of Order 42 rule 13 (4) (f) of the Civil Procedure Rules, and in my respectful view, I would agree with the Court in Silver Bullet Bus case on the point, that it would be too draconian to strike out the appeal in these circumstances.” 45.In the Supreme Court case cited by the 2nd Respondent that they insist this Court is bound to uphold, the case of Bwana Mohamed Bwana vs Silvano Buko & 2 Others [2015] eKLR , the Appellant failed to file the entire record of appeal, thus there was nothing for the Court to refer to, which is different from this suit as the record of appeal with the signed and dated judgment in included is available. There is no reason to strike the appeal out on this ground. 2) Did the Trial Magistrate err in ignoring the evidence presented before the Court and dismissing the suit? 46.This was a suit in which the Appellant claimed that he had entered into an Agreement for the sale of his parcel of land L.R No. Karatina Town Block 576, that he had charged to the 2nd Respondent Bank for a loan facility, which he defaulted on. He entered into an agreement for sale for a consideration price of Ksh.2,000,000/=, which Ksh.1,000,000/= thereof was to go to the 2 nd Respondent to discharge the property. However, the Appellant claims that his Page 13 of 18 ELCA E025 OF 2023

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other charged property L.R No. Iriani/Kairia/747/27 was fraudulently transferred to the 1st Respondent. 47.From the Appellant’s Bundle of documents produced before the Trial Court, he produced an Agreement dated 21st June 2012, for the sale of Land Parcel No. Karatina Block 576 to the 1st Defendant, which was duly executed. However, there is yet another similar agreement of even date, where the subject land for sale is LR. No. Iriani/Kairia/747/27. 48.According to the expert witness report, a forensic document examiner, the agreement for sale marked ‘B’ which is the one for the sale of LR. No. Iriani/Kairia/747/27 has evidence of manipulation where the Land parcel number is quoted. He also observed that the signatures on the Transfer document marked ‘C’ and the known signatures of the Appellant herein were made by two different authors. 49.The Court of Appeal in the case of SYT v TA (2019)KECA 374(KLR) quoted itself thus: The Court of Appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros V. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 said that; “Like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon Page 14 of 18 ELCA E025 OF 2023

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consideration alongside all other available evidence there is proper and cogent basis for doing so.” 50.In my opinion, a document examiner working with the Directorate of Criminal Investigation is a highly qualified expert, and while the trial court was not bound to his opinion, the trial court completely disregarded this testimony without stating the reason for not taking it into account. What the expert witness was stating to the court is that the agreement for the sale of transfer and the transfer document for LR. No. Iriani/Kairia/747/27 were essentially forged and that the Appellant herein did not sign the same. 51.It is even more evident that the Appellant could not have intended to sell LR. No. Iriani/Kairia/747/27 for Ksh.2,000,000/= from the Report and Valuation dated 14th October 2011. The said land was valued at a market priceof Ksh.7,750,000 as it was developed as a commercial and residential building, with a mortgage value of Ksh.6,585,000/= and a forced sale value of Ksh.5,8000,000/=. 52.The Land Registration Act CAP 300 provides at Section 26 that: “The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— Page 15 of 18 ELCA E025 OF 2023

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(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or (b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 53. Thus, if the process in which a certificate of title is obtained through is found to be fraudulently or unprocedurally acquired, the title then becomes defeasible. This position was affirmed and upheld by the apex Court when the Learned Judges of the Supreme Court in Dina Management Ltd v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) held as follows: “Article 40 of the Constitution entitles every person to the right to property, subject to the limitations set out therein. Article 40(6) limits the rights as not extending them to any property that has been found to have been unlawfully acquired.” 54.My opinion therefore is that the trial court grossly erred in ignoring the evidence on record that there were irregularities and signs of fraud in how the title was transferred to the 1st Respondent herein. 55.In the case of Mbogo and Another v Shah [1968] EA 93 the Court stated: “…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” Page 16 of 18 ELCA E025 OF 2023

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56.I opine that this appellate court ought to interfere with the decision of the trial court to overturn it and cancel and nullify the title for LR. No. Iriani/Kairia/747/27 in the 1st Respondent’s name and revert it back to the Appellant for being fraudulently acquired. 57.The final decision the Court is that the appeal herein has merit and the following orders are made: 1) The appeal is allowed. 2) The Judgement of the trial court Honourable Principal Magistrate Hon. E. Kanyiri delivered on 18.12.2023 in Karatina PM MCE & L Case No. 55 of 2018 is set aside. 3) Judgement is hereby entered in favour of the Appellant/Plaintiff against the Defendants jointly and severally in the following terms; i. A declaration is hereby issued that the Respondents/Defendant’s actions in having the IRIA-INI/KAIRIA/747/27 property transferred L. R. NO to the 1st R. NO Defendant/Respondent are unlawful. ii. An order of cancellation of the title to L. IRIA-INI/KAIRIA/747/27 issued on 2nd October 2012 to the 1st Respondent/Defendant herein EPAHANTUS WACHIRA NGOCHI is hereby issued. iii. An order is hereby issued that the title to the property L. R. NO IRIA-INI/KAIRIA/747/27 be re-transferred to the Appellant/Plaintiff FRANCIS MURIUKI MURUGARU. Page 17 of 18 ELCA E025 OF 2023

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iv. Costs of the suit before the trial court and the appeal shall be paid to the Appellant/Plaintiff by the 1st and 2nd Respondent/Defendants. Delivered, dated and signed at Nairobi this 26th day of February, 2026. HON. L. G. KIMANI JUDGE ENVIRONMENT AND LAND COURT The Judgement is read virtually and in the presence of………………….. for the Applicants ……………… for the Respondent Page 18 of 18 ELCA E025 OF 2023

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