Case ID:159980

Joseph Kamau Gachinga(Suing for and on behalf of the Estate of Jecinta Wambui Gachinga (Deceased) v Micheal Mungai Karanja & 2 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Suit 734 of 2017

Parties:

Joseph Kamau Gachinga(Suing for and on behalf of the Estate of Jecinta Wambui Gachinga (Deceased) v Micheal Mungai Karanja, Alice Nyambura Chege & National Land Commission

Date Delivered:

15 Jun 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Joseph Kamau Gachinga(Suing for and on behalf of the Estate of Jecinta Wambui Gachinga (Deceased) v Micheal Mungai Karanja & 2 others [2020] eKLR

Court Division:

Environment and Land

County:

Kiambu

Case Outcome:

Judgment entered for the Plaintiff.

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC SUIT NO.734 OF 2017

JOSEPH KAMAU GACHINGA(Suing for

and on behalf of the Estate of

JECINTA WAMBUI GACHINGA(Deceased).................................PLAINTIFF

VERSUS

MICHEAL MUNGAI KARANJA..........................................1

ST

DEFENDANT

ALICE NYAMBURA CHEGE...............................................2

ND

DEFENDANT

NATIONAL LAND COMMISSION......................................3

RD

DEFENDANT

JUDGMENT

By a Plaint dated

3

rd

August 2017,

the Plaintiff herein filed this suit against the Defendants seeking for orders that;

a) A declaration that title deed registered in the names of the 1

st

and 2

nd

Defendants over land parcel

Ruiru East/Juja East

Block 2/257

are invalid and void ab initio and the names of the 1

st

and 2

nd

Defendants be cancelled/ extinguished from the land registry in respect of land parcel Ruiru East/Juja East Block 2/257.

b) Costs

In his statement of claim, the Plaintiff averred that the deceased

Jacinta Wambui Gachinga

is the lawful registered owner of the suit property by virtue of being a shareholder of

Juja Farmers Limited

. He averred that the 1

st

Defendant illegally and fraudulently procured title for the suit property without the deceased’s knowledge or consent. He particularised fraud by the Defendants as; issuing and/or procuring falsified/irregular document for the suit property on such premises to facilitate registration of the 1

st

and 2

nd

Defendants, unlawfully re allocating the suit premises to the Defendants, working in conspiracy to defeat the Plaintiff’s title to the suit proposed, making parallel registration of title in the names of the Defendants.

The Plaintiff sought leave to serve the Defendants by way of substituted service and on

19

th

September 2018

, through the Daily Nation Newspaper by way of advertisement the 1

st

and 2

nd

Defendants were served. Despite service, the Defendants did not file summons to enter appearance and the matter proceeded for formal proof wherein the Plaintiff gave evidence for himself and did not call any witness.

PLAINTIFF’S CASE

PW1 Joseph Kamau Gachinga

adopted his witness statement and testified that he went to the Lands office and found that there were three green cards and one was for his mother, another for

Alice Nyambura Chege

and

Micheal Mungai Karanja

. It was his testimony that his mother’s green card was issued on

19

th

May 1989.

That the title for

Raphael

was issued on

14

th

January 1991

and the one for

Alice

was issued on

21

st

April 1994.

He urged the Court to order for the cancellation of the subsequent green cards and maintain his mother’s green card, He produced his list of documents as exhibits 1 to 7C.

The Plaintiff filed written submissions through the Law Firm of

J.K Ngaruiya & Company Advocates

and submitted that

Jacinta Wambui Gachinga’s

(deceased) registration to the suit land was the first in time and unchallenged the Defendants title should be cancelled. Further that when there are two competing titles, the first in time should always prevail. The Plaintiff relied on provisions of law and case law and urged the Court to allow his case.

The Defendant failed to enter appearance and thereby defend the suit. Though the suit is not been defended, that does not mean that the Court will wholly believe the Plaintiff’s evidence without interrogation .Further the Court will not just enter Judgment without interrogating the veracity of the evidence placed before it as the Plaintiff is still required to prove his case on the required standard of balance of probabilities. See the case of

Shaneebal Limited …Vs… County Government of Machakos (2018)eKLR,

where the Court cited the case of

Karuru Munyororo …..Vs ….Joseph Ndumia Murage & Another, Nyeri HCCC No.95 of 1988,

where the Court held that:-

“The Plaintiff proved on a balance of probability that she was entitled to the orders sought in the Plaint and in the absence of the Defendant’s and or their Counsel to cross examine her on evidence, the Plaintiff’s evidence remained unchallenged and

uncontroverted. It was thus credible and it is the Kind of evidence that a court of law should be able to act upon’’

Even if the Plaintiff’s evidence remains unchallenged and uncontroverted, the Court still has an obligation to interrogate it and determine whether the same is merited to enable the Court come up with logical conclusion as exparte evidence is not automatic prove of a case. The Plaintiff has to discharge the burden of proof. See the case of

Kenya Power & Lighting Company Limited… Vs…Nathan Karanja Gachoka & another [2016] eKLR

, the Court

stated:-

“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence is unchallenged or not.’’

Further the case of

Gichinga Kibutha…Vs…Carooline Nduku (2018) eKLR,

where the Court held that:-

“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must proof his case however much the opponent has not made a presence in the contest.’’

From the available evidence, the issues for determination is whether the Plaintiff is entitled to the orders sought.

The Defendant did not file their defence and therefore, there is no evidence to weigh as against the Plaintiff’s evidence. However, the Plaintiff is the one who has alleged and he had a duty to call sufficient evidence to prove his case on the required standard of balance of probabilities.

Section 107

of the

Evidence Act

places such a duty on he who alleges must prove. It states as follows:-

(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

The Plaintiff has alleged that the deceased herein

Jacinta Wambui

was the owner of the suit property having acquired ownership by virtue of being a shareholder of

Juja Farms

. This Court has seen balloting card, receipt for payment of monies and a share certificate confirming that indeed the deceased was a member of the said Company. Further the Court has further seen green cards that were produced as exhibits before this Court indicating that the deceased

Jacinta Wambui

acquired ownership of the suit property on the

19

th

may 1989

,

Micheal Mungai

acquired ownership on the

14

th

January 1991

and that

Alice Nyambura Chege

acquired ownership

21

st

April 1994

, the Court further notes that the

green cards

indicate that the said ownership was acquired directly from the government of Kenya by all the three. It is the Court’s considered view that once the suit property had been allocated to

Jacinta Wambui Gachinga

,the deceased herein it was no longer available for allocation and therefore there is no way that the same could still be allocated to two other people.

It is very clear that

Section 26 of the Land Registration Act,

gives a proprietor of land

absolute

and

indefeasible

rights over the said property. Having been registered as the proprietor, it meant that the deceased(

Jacinta Wambui Gachinga

) held all the rights and privileges that appertain to the suit property in accordance with

Sections 24 and 25

of the

Land registration Act.

The Defendants did not come to Court to give an account of how they acquired ownership over the suit property. In the absence of any rebuttal of the Plaintiff’s evidence and being that of all the three the Plaintiff’s (deceased’s) title was the first in time and the Plaintiff having produced evidence to show how the deceased acquired the same,the Court finds and holds that the Plaintiff was the owner of the suit property and therefore the titles held by the Defendants must be cancelled.

Section 143 of Registered Land Act Cap 300(repealed)

and now copied

in Section 80 of the Land registration Act

gives the Court the powers to cancel any title that had been acquired illegally and having held that the Plaintiff had absolute title over the property, it means that the Defendants title over the suit property must then be cancelled.

Having now carefully considered the available evidence and the exhibits thereto, the written submissions, cited authorities and the relevant provisions of law, the Court finds that the Plaintiff has proved his case on the required standard of balance of probabilities.

For the above reasons the Court enters Judgment for the Plaintiff against the Defendants entirely as prayed in the Paint with costs to the Plaintiff.

It is so ordered.

Dated, signed and Delivered at Thika this 15

th

Day of June 2020.

L. GACHERU

JUDGE

15/6/2020

Jackline - Court Assistant

ORDER

In view of the declaration of measures restricting court operations due to the

COVID-19

Pandemic and in light of the directions issued by the Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consent. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

By Consent of ;

No consent for the Plaintiff

No consent for the 1

st

Defendant

No consent for the 2

nd

Defendant

No consent for the 3

rd

Defendant

L. GACHERU

JUDGE

15/6/2020