Hilda Njoki Thiani v Lucy Wambui Muturi & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Environmental & Land Case 66 of 2009 HILDA NJOKI THIANI ………………………………….PLAINTIFF VERSUS LUCY WAMBUI MUTURI ………………………..1ST DEFENDANT ELIZABETH MUTHONI NDUNGU ……………..2ND DEFENDANT JUDGMENT The Defendants were sued in their capacity as the administrators of the estate of the deceased Peter Ndungu Muturi who died on 22nd January, 1997. At the time of his death he was the registered proprietor of parcels Limuru/Rironi/595 and Limuru/Rironi/596. He became the registered owner of the parcels on 8th August, 1994. Prior to that the parcels were registered in the names of the Plaintiff. The suit was filed on 23rd February, 2009 seeking a declaration that the registration of the titles in the names of the deceased was fraudulent, wrongful, null and void and that the deceased had no legal or proprietory interest in the parcels. The Plaintiff asked for an order directing the Land Registrar Kiambu District to cancel the registers relating to the two parcels and to rectify the registers to reflect her as the absolute proprietor. The suit was not defended. No appearance was entered or defence filed by the Defendants. The matter proceeded by way of formal proof. The evidence of the Plaintiff was that she was the owner of the two properties. On 29th March, 1994 she agreed to sell 596 to the deceased for a sum of KShs. 150,000/= (“HNT 4”). She was paid KShs. 30,000/= and was to receive the balance of KShs. 120,000/= upon obtaining the consent of the Land Control Board and upon her executing the transfer documents. She did not obtain the consent and neither did she execute the transfer. Her reason was that the deceased had failed to pay the balance. Somewhere along the line, the deceased requested her for the original title to be able to secure the release of his relative on bond in a criminal case at Kibera court. The title deed was indeed lodged in the court for quite a while. Unknown to her, the deceased somehow managed to get himself registered as proprietor of the land. In May, 2008 she sought to sell 595 to a third party. She had custody of its title deed. When she went to the lands office to transact the sale she found that even this land had been registered in the name of the deceased. According to Kiambu District Land Registrar Jonathan Ndirangu Kingori (PW1), the deceased had gone to the registry and cheated that the title deed to 595 was lost. This caused the gazettement of the loss in Legal Notice No. 47370 of 23 rd August, 1996. Subsequently a new one was issued and he got registered. It is in 2008 that the Plaintiff came complaining as she held the original title. The court appreciates that a registered proprietor of land has under section 27 of the Registered Land Act (Cap. 300) absolute and

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