Case ID:167813

Jacquiline Muthoni Wachira v Mwalimu Investment Company Limited & 3 others [2020] eKLR

Case Metadata

Case Number:

Environment and Land Case 568 of 2017

Parties:

Jacquiline Muthoni Wachira v Mwalimu Investment Company Limited, Mwalimu Sukari Company Limited, Anne Wanjiku Mwaura & Land Registrar

Date Delivered:

10 Dec 2020

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Jacquiline Muthoni Wachira v Mwalimu Investment Company Limited & 3 others [2020] eKLR

Advocates:

Mr. Kimemia for the Plaintiff

M/s Kubai for the 4th Defendant

Court Division:

Environment and Land

County:

Kiambu

Advocates:

Mr. Kimemia for the Plaintiff

M/s Kubai for the 4th Defendant

History Advocates:

One party or some parties represented

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 NO. 568 OF 2017

JACQUILINE MUTHONI WACHIRA.......................................PLAINTIFF

VERSUS

MWALIMU INVESTMENT COMPANY LIMITED......1

ST

DEFENDANT

MWALIMU SUKARI COMPANY LIMITED................2

ND

DEFENDANT

ANNE WANJIKU MWAURA...........................................3

RD

DEFENDANT

THE LAND REGISTRAR...............................................4

TH

DEFENDANT

JUDGMENT

By a Plaint dated

15

th

May 2017,

and filed on

30

th

May 2017

, the Plaintiff sought for Judgment against the Defendants for the following orders;

a) A declaration that the transfer of land in the scheme executed by the 1

st

and 2

nd

Defendants in favour of the 3

rd

Defendant was fraudulent and null and void

b) A declaration that the Plaintiff is the legal owner of the property known as

Ruiru/Ruiru East Block 3/1715

and is entitled to ownership and exclusive use and occupation and vacant possession of the property to the exclusion of the 3

rd

Defendant or anyone claiming under her.

c) A permanent injunction restraining the 3

rd

Defendant whether by herself, her servants and/or agents howsoever from entering, remaining upon, using, offering for sale, selling, transferring, assigning, charging or in any other manner howsoever interfering with the Plaintiff’s use, occupation and quiet enjoyment of the property known as

Ruiru/Ruiru East Blo 3/1715

.

d) An order that the register and the title issued to the 3

rd

Defendant be cancelled/revoked and a fresh title be issued to the Plaintiff

e) damages

f) Special damages of Kshs. 16,890/=

g) Costs and interests

h) Such further or other relief as this Court may deem fit to grant.

The Plaintiff averred that she was the owner of the suit property by virtue of having purchased the same from Mwalimu

Investment Limited,

which had invited members of

Mwalimu Savings

and Credit Co-operative Society ( Mwalimu Sacco),

to purchase plots in a Scheme owned/purchased by the 1

st

Defendant.

She contended that she applied to purchase

4 acres

of land and by letter dated

18

th

December 1982,

the 1

st

Defendant confirmed the success of the her Application and required her acceptance of

4 acres

of land by paying the requisite fees which she paid. That during a balloting exercise conducted by the 1

st

Defendant for eligible members, the Plaintiff picked

ballot 888,

representing her acreage and she was advised to await allocation of her title. Further that by a letter dated

24

th

September 1990

, the 2

nd

Defendant whose Directors are the same ones as the 1

st

Defendant confirmed to the Plaintiff that her ballot card

No. 8888

had morphed into

Title L.R Ruiru/Ruiru East Block 3/1715,

the suit property herein .

She relocated abroad and was a resident in Canada from the

December 1990

to

July 1997

. Upon her return to Kenya, she tried in

vain to get the 1

st

and 2

nd

Defendants to sign a transfer so that she could get the suit property formally registered in her name. That on

14

th

October 2014

, the Plaintiff conducted an official search on the suit property and learnt that it was registered in the name of the 3

rd

Defendant. That the Plaintiff did not have knowledge of the transactions involving the 3

rd

Defendant, did not authorize or permit any transactions and the same was occasioned by

fraud

and

misrepresentation

on the part of the 1

st

, 2

nd

and 3

rd

Defendants and were calculated to

defraud

the Plaintiff of her property.

She particularized

fraud

and

misrepresentations

by the Defendants as; illegally acquiring title to the property without her authority, purported transfer was a conspiracy to deprive her of her rights in the suit property and defeat her rights, fraudulently benefitting from the suit property without any consideration being paid to the Plaintiff, holding themselves out as the registered owners of her property, causing illegal registration of the land in the name of the 3

rd

Defendant’s name.

Further that the title acquired by the 3

rd

Defendant was not one that deserves the protection of the law, as the 3

rd

Defendant ought to have known that the Plaintiff owned the suit property. That the 1

st

and 2

nd

Defendants had no residual power to deal with the suit property and as such the 1

st

Defendant is seeking to assert illegal; occupation by

preparing to permanently alter the suit property to her detriment. It was her contention that the registration of the suit property in the name of the 3

rd

Defendant cannot vest any interests or rights over the property in the 3

rd

Defendant’s name or any other person claiming an interest adverse to hers.

The suit was contested and the 4

th

Defendant filed its statement of Defence dated

14

th

September 2017,

and denied all the allegations made in the Plaint and averred that the suit property is registered in the name of

Anne Wanjiku Mwaura

. Further there was failure to serve

Notice

to the Attorney General as per

Section 13 A of the Government Proceedings Act

. The Court was urged to strike out the suit.

Despite service, the 1

st

, 2

nd

and 3

rd

Defendants did not

Enter

Appearance

nor file their

Defence.

The matter proceeded by way of viva voce evidence wherein the Plaintiff testified for herself and called one witness. Though the 4

th

Defendant filed a Statement of defence, it did not call any witness.

PLAINTIFFS CASE

PW1 Jacquiline Muthoni Wachira

testified that in

1981 to 1985,

she was working with at

Teachers Service Commission

Headquarters and in

1986 to 1990

she was working with the Ministry of Water .That she left employment in

1990,

and she had acquired the suit property in

1983.

She adopted her witness statement as part of her evidence and produced a list of document as Exhibit 1. That she had a letter of offer from

Mwalimu Sacco,

which she produced as Exhibit 2, a Membership Card Exhibit 3 and a bundle of receipts for payment for the suit property as Exhibit No. 4

That the suit land was sold for kshs.

10,320/=

which she paid in instalments . She deposited the money in the bank and took receipts to the office. She produced the bank slips as Exhibit 5. That she balloted for the plot and her number was

888.

She produced the ballot documents Exhibit 6. She also produced a Certificate of incorporation of

Mwalimu Investment Company Limited

as Exhibit 7. A search for the Directors being CR12 as Exhibit 8 and a letter from

Mwalimu Sacco Company Limited

as Exhibit 8

,

which stated that her land was

L.R 4/1715.

She further produced a Certificate of incorporation for

Mwalimu Sukari

as Exhibit 9 and search for Directors i.e CR12 as Exhibit 10 . It was her testimony that she was out of the Country for long as she relocated to Canada with her husband. She produced her husband’s letter of posting as Exhibit 11.

She had been shown the land that she balloted for in

1993

, and when she came back and tried to look for

Mwalimu Investment

she could not locate them. When she failed to locate the offices of

Mwalimu

Investment

she did a search at the Lands Registry and found the same was registered in the name of the 3

rd

Defendant

Anne Wanjiku Mwaura,

and she lodged a caution dated

31

st

August.

That the land could be identified from the map and she produced the map as Exhibit 12 and a search from the lands office as Exhibit 13. She urged the Court to allow her claim.

PW2 Wilson Wachira Nyaga,

husband to the Plaintiff , adopted his witness statement as his evidence in Court. He further testified that his wife was an employee of the

Teachers Service Commission

and when

Mwalimu Sacco

invited teachers to purchase land through their Sacco, the Plaintiff made payments for

4 acres

. However, the Plaintiff never got a title deed and

Mwalimu Sacco

had not issued her with any title deed but sold the land to someone else. That they were out of the Country from

1990-1997

and later

Mwalimu Investment limited

changed to

Mwalimu Sacco Company limited

and that the two companies are one and the same.

It was his evidence that the Plaintiff made efforts to obtain a title deed, but she was not issued with any. That they went to see the land in

1997

and there was no cultivation or encroachment. However, when he visited the land in

2014

, he found cultivation going on and he informed his wife. That a search was conducted and they discovered the land had been transferred to the 3

rd

Defendant.

The Plaintiff filed written submissions through the

Law Firm of Maguta Kimemia & Associates Advocates,

which the Court has carefully read and considered. The 4

th

Defendant also through

Freedom Kubai

State Counsel, filed its written submissions on

12

th

October 2020,

and submitted that the 4

th

Defendant relied on the documents presented by

Mwalimu Investment Company Limited,

to register the suit property. That there was no way the 4

th

defendant could have colluded with the 3

rd

Defendant as she did not process the title herself.

The Court has read and considered the pleadings by the Plaintiff and the evidence adduced and finds that the issue for determination is

Whether the Plaintiff is entitled to the orders sought.

It is the Plaintiff’s contention that she is the rightful owner of the suit property having bought the land

No. 888, which

was a subdivision of the scheme belonging to the 1

st

Defendant. That when the subdivisions were registered, the Plot

No.888

was given title Reference No

. Ruiru/Ruiru East Block 3/1715.

Though the 4

th

Defendant filed a statement of Defence, It did not call any witness. The 1

st

to 3

rd

Defendants had been served, but they did not file any documents or defence and therefore they did not participate in the proceedings. The Plaintiff’s evidence remains uncontested. However, her evidence is not automatic as she still has an obligation to prove her claim on the required standard.

The Plaintiff has averred that she bought the land from

Mwalimu Investment Company

. To buttress her testimony, the Plaintiff produced in evidence a letter dated

18

th

December 1982,

evidencing that she was allocated a parcel of land by

Mwalimu Investment

subject to her paying various amounts of money. The Plaintiff has also produced in evidence receipts from the said

Mwalimu Investment

evidencing that she paid the said amount of money and a ballot paper

No. 888

as further proof that she did ballot for a plot on the 1

st

Defendant’s scheme.

It is the Plaintiff’s evidence that the said

Mwalimu Investment Company

changed its name to

Mwalimu Sukari Company,

and as per the name search of the said Directors, the Directors did not change. As already held by the Court, the evidence by the Plaintiff has not been challenged. Further the fact that the Plaintiff bought the parcel of land from

Mwalimu Investment Company

and received the letter dated

24

th

September 1990,

from

Mwalimu Sukari Company Limited

which indicated the process of the title deed over the plot bought, reinforces the Plaintiff’s claim. The Court is thus satisfied that the two Companies are one and the same and in the absence of any evidence to the contrary, the Court holds and finds that the two companies are one and the same .

The letter dated

24

th

September 1990

, signed by the Company’s

secretary, indicated that the processing of the Plaintiff’s title deed was in the final stages and the title was Reference

No. Ruiru/Ruiru East Block 3/1715.

The letter also required the Plaintiff to pay

Kshs. 1,170/=

before the processing of the title deed was finalised. As per the said letter, the parcel of land had already been allocated to the Plaintiff and the monies were only for the processing of the title deed. Therefore, it follows that the Plaintiff having been allotted the suit property, then the same could not be allocated to anyone else. See the case of

Ashmi Investment Limited v…Vs…Riakina Limited & another [2017] eKLR where

the Court held that

“the court finds that by 2013 when the Plaintiff paid for plot D it was no longer available as the plot had already been allotted by the Commissioner of Lands and to the 1

st

Defendant who had paid for it and taken up possession and was in the process of procuring a certificate of title over it.”

Further in the case of

Republic …Vs… City Council of Nairobi & 3 Others (2014) eKLR

, Odunga, J. had this to say about land that has already been allotted:

“once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.”

In this case, the suit property was already allotted to the Plaintiff and she had fulfilled the conditions and the only condition that remained was for processing of the title deed which in the Court considered view could not in any way invalidate an allocation.

The 3

rd

Defendant is the registered owner of the suit property.

Section 26(1) of the Land Registration Act

provides for circumstances under which a title held by a registered owner may be impeached. Further it is trite that when a person’s title to the suit property is called into question, then the registered owner has to prove the root of such title. In this case, the 3

rd

Defendant failed to show the root of her title. Since the Court has held that the suit property had already been allocated to the Plaintiff, and could not be allocated to anyone else, the Court finds and holds that the title held by the 3

rd

defendant must be impeached .See the case of

Daudi Kiptugen

…Vs…

Commissioner of Lands & 4 Others [2015] eKLR

where the Court held that:

“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title.If this were not the position then all one would need to do is to manufacture a Lease or a Certificate of title at a backyard or the corner of a dingy street, and by virtue thereof, claim to be the rightful proprietor of the land indicated therein.”

The Plaintiff has sought for a declaration that the transfer of the suit property to the 3

rd

Defendant was

fraudulent, null

and

void

and a further declaration that she is the rightful owner of the suit property.

The Court having held that the Plaintiff had been allocated the said land, then the said land could not be allocated to anyone else. Therefore, the Court finds and holds that the prayers sought are merited.

The Plaintiff needs to be allowed a peaceful and quiet enjoyment of the suit property and to that end, a Permanent Injunction is justified.

Section 80 of the Land Registration Act

gives the Court the powers to cancel any Certificate of Title if the said title was improperly acquired. The Court having found that the 3

rd

Defendant could not be allocated land which had already been allocated to the Plaintiff, finds the 3

rd

Defendant’s Certificate of title ought to be cancelled.

The Plaintiff had also sought for Special damages. It is trite that Special Damages must not only be specifically pleaded, but they must also be proved. The Plaintiff claimed Special Damage of

Kshs.16,890/=

. However, in her evidence, she did not prove what the said Special Damages were for as the receipts adduced were for payment of the plot allocated to her. Therefore, the Court finds that the Plaintiff has failed to prove that she is entitled to the Special Damages.

On costs, the Plaintiff as the successful party is entitled to the

costs of the suit

Having now carefully considered the available evidence, the Court finds and holds that the Plaintiff has proved her case on the required standard of balance of probabilities. Consequently, the Court enters Judgment for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint dated

15

th

May 2017

in terms of prayers No.

No. a, b, c, d and g.

It is so ordered

Dated, signed

and

Delivered

at

Thika

this 10

th

day of

December, 2020.

L. GACHERU

JUDGE

10/12/2020

Court Assistant – Lucy

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 His Lordship, the Chief Justice on

15

th

March 2020

, this

Ruling

has been delivered to the parties online with their consents. 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.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

Mr. Kimemia for the Plaintiff

No Appearance for the 1

st

Defendant

No Appearance for the 2

nd

Defendant

No Appearance for the 3

rd

Defendant

M/s Kubai for the 4

th

Defendant

L. GACHERU

JUDGE

10/12/2020