Case ID:170079

Nancy Wanjiku Ng’ang’a (Suing as an Attorney of Zipporah Wambui Ng’ang’a) v Patrick Munyua Regeru & 2 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case 141 of 2015

Parties:

Nancy Wanjiku Ng’ang’a (Suing as an Attorney of Zipporah Wambui Ng’ang’a) v Patrick Munyua Regeru, Stephen Kiarie Ng’ang’a & Josephat Gregory Mumira Njogu

Date Delivered:

04 Feb 2021

Case Class:

Civil

Court:

Environment and Land Court at Nairobi

Case Action:

Judgment

Judge(s):

Samson Odhiambo Okong'o

Citation:

Nancy Wanjiku Ng’ang’a (Suing as an Attorney of Zipporah Wambui Ng’ang’a) v Patrick Munyua Regeru & 2 others [2021] eKLR

Advocates:

Ms. Mwihuri for the 1st Defendant

Mr. Burugu for the 2nd Defendant

Court Division:

Environment and Land

County:

Nairobi

Advocates:

Ms. Mwihuri for the 1st Defendant

Mr. Burugu for the 2nd Defendant

History Advocates:

Both Parties Represented

Case Outcome:

Suit dismissed

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 NAIROBI

ELC CASE NO. 141 OF 2015

NANCY WANJIKU NG’ANG’A (Suing as an

attorney of Zipporah Wambui Ng’ang’a)...................................PLAINTIFF

VERSUS

PATRICK MUNYUA REGERU......................................1

st

DEFENDANT

STEPHEN KIARIE NG’ANG’A...................................2

ND

DEFENDANT

JOSEPHAT GREGORY MUMIRA NJOGU...............3

RD

DEFENDANT

JUDGMENT

This suit was brought by Mary Nyambura (“the first attorney”) in her capacity as attorney of Zipporah Wambui Ng’ang’a (“the plaintiff”) on 17

th

February, 2015. Through a plaint dated 20

th

January, 2015, the plaintiff averred that on 20

th

April, 2011, she entered into an agreement of sale with the 3

rd

defendant in respect of all that parcel of land known as L.R. No. Ndeiya/Ndeiya/2328 (“the suit property”) under which the 3

rd

defendant agreed to sell and the plaintiff agreed to purchase the suit property at a consideration of Kshs. 735,000/=. The plaintiff averred that upon execution of the said agreement she left for the United Kingdom and delegated the task of completing the agreement to the 2

nd

defendant. The plaintiff averred that the 2

nd

defendant was to act as her agent and was to ensure that the transaction was completed and the suit property registered in her name. The plaintiff averred that the 2

nd

and 3

rd

defendants conspired and fraudulently caused the suit property to be registered in the name of the 1

st

defendant.

The plaintiff sought judgment against the defendants jointly and severally for;

(i) A permanent injunction restraining the 1

st

defendant from constructing on, alienating, disposing of, selling, parting with possession or in any other manner whatsoever dealing with the suit property in a manner inconsistent with the plaintiff’s rights in the property.

(ii) An order of eviction of the 1

st

defendant from the suit property.

(iii) Any other relief this court deems fit to grant.

The 1

st

defendant filed a statement of defence on 17

th

May, 2017. The 1

st

defendant averred that he was a stranger to the agreement of sale that the plaintiff allegedly entered into with the 3

rd

defendant. The 1

st

defendant denied that the suit property was transferred to him fraudulently. The 1

st

defendant averred that he acquired the suit property through due process that was devoid of any irregularities or fraud. The 1

st

defendant averred that he purchased the suit property from the 2

nd

defendant at a consideration of Kshs. 2,400,000/= that he paid in full and had the property transferred to his name after consent of the Land Control Board was issued in respect of the transaction and the requisite stamp duty paid. The 1

st

defendant averred that his acquisition of the suit property was not tainted with illegality to warrant the grant of the orders sought by the plaintiff.

The 2

nd

defendant filed a statement of defence on 3

rd

April, 2017 in which he denied the plaintiffs claim in its entirety. The 2

nd

defendant admitted that the plaintiff left for the United Kingdom after entering into an agreement of sale with the 3

rd

defendant but denied that the plaintiff left him as her agent to complete the agreement with the 3

rd

defendant. The 2

nd

defendant averred that he was not privy to the agreement of sale between the plaintiff and the 3

rd

defendant and that the suit property was transferred to him by the 3

rd

defendant pursuant to an agreement of sale that he entered into with the 3

rd

defendant after the plaintiff failed to honour her obligations under the agreement of sale dated 20

th

April, 2011 between her and the 3

rd

defendant. The 2

nd

defendant denied the allegations of fraud levelled against him by the plaintiff.

The 3

rd

defendant filed his statement of defence on 28

th

April, 2017. The 3

rd

defendant admitted that he entered into the agreement of sale dated 20

th

April, 2011 with the plaintiff in respect of the suit property. The 3

rd

defendant denied that he conspired with the 2

nd

defendant to fraudulently transfer the suit property to the 1

st

defendant. The 3

rd

defendant averred that it was the 2

nd

defendant who fraudulently transferred the suit property to himself and subsequently to the 1

st

defendant.

The plaintiff fell out with the first attorney. On 17

th

September, 2019, Nancy Wanjiku Ng'ang’a (“the second attorney”) was substituted as the plaintiff’s attorney in the suit in place of the first attorney, Mary Nyambura. At the trial, the plaintiff’s second attorney, Nancy Wanjiku Ng'ang’a (PW1) gave evidence on behalf of the plaintiff. PW1 testified as follows: She was a sister and an attorney of the plaintiff. The 2

nd

defendant was their brother. The plaintiff purchased the suit property from the 3

rd

defendant on 20

th

April, 2011. The 2

nd

defendant was to process the title of the suit property on behalf of the plaintiff. The plaintiff learnt that the suit property was on sale. The plaintiff conducted a search on the suit property which revealed that the 2

nd

defendant did not register the suit property in the name of the plaintiff as had been agreed but instead had the same registered in his name before he sold and transferred the same to the 1

st

defendant. PW1 produced several documents in evidence as exhibits and urged the court to grant the reliefs sought in the plaint.

The 1

st

defendant adopted his witness statement dated 10

th

May, 2017 as his evidence in chief and produced the documents attached to his list and bundle of documents dated 10

th

May, 2017 as exhibits. In the statement, the 1

st

defendant stated that he purchased the suit property from the 2

nd

defendant at Kshs. 2,400,000/= after carrying out a search which confirmed that the 2

nd

defendant was the owner of the property. He stated that he paid the purchase price in full and had the property transferred to his name on 25

th

September, 2014 after Land Control Board consent was issued for the transaction on 11

th

September, 2014. He stated that he was issued with a title deed in respect of the suit property on 25

th

September, 2014. He stated that there was no way he could have known that the property was not owned by the 2

nd

defendant as claimed by the plaintiff. He stated that he was not aware of the alleged fraud. The 1

st

defendant stated that he was an innocent purchaser of the suit property for value without notice. The 1

st

defendant averred that the plaintiff’s claim if any should be against the 2

nd

and 3

rd

defendants.

The 2

nd

defendant adopted his witness statement filed on 3

rd

April, 2017 and a replying affidavit that he had sworn on 28

th

August, 2015 in response to the plaintiff’s interlocutory application for injunction as his evidence in chief. He produced his bundle of documents filed on 3

rd

April, 2017 as exhibit. The 2

nd

defendant denied that the plaintiff had given him the balance of the purchase price for the suit property in British Pounds to pay to the 3

rd

defendant. He stated that he never received any money from the plaintiff on account of the purchase price for the suit property. He stated that the plaintiff had no money to purchase the suit property and that was why he decided to purchase the property from the 3

rd

defendant.

The last to give evidence was the 3

rd

defendant. The 3

rd

defendant adopted his witness statement dated 27

th

April, 2017 as his evidence in chief and produced the documents that were attached to his list of documents dated 27

th

April, 2017 as his evidence in chief. The 3

rd

defendant stated that the 2

nd

defendant lied to the court in his evidence. He denied having taken a loan from Family Bank as claimed by the 2

nd

defendant in his statement. In his witness statement, he admitted having entered into an agreement of sale dated 20

th

April, 2011 with the plaintiff. He also admitted that the plaintiff paid him Kshs. 400,000/= upon the execution of the agreement and the balance through 2

nd

defendant who acted as her agent. The 3

rd

defendant stated that he only received a total of Kshs. 735,000/= on account of the purchase price for the suit property. He stated that after being paid the full purchase price, he handed over to the 2

nd

defendant the completion documents in favour of the plaintiff. He stated that he was not privy to what the 2

nd

defendant did with the said documents after the same were handed over to him. He stated that he fully performed his part of the contract with the plaintiff and that if there was any fraud, the same was committed by the 2

nd

defendant.

After the close of evidence, the parties made closing submissions in writing. The plaintiff filed her submissions on 19

th

February, 2020. The 1

st

defendant filed his submissions on 2

nd

June, 2020. The 2

nd

and 3

rd

defendants filed their submissions on 29

th

July, 2020 and 12

th

August, 2020 respectively. I have considered the pleadings, the evidence tendered and the submissions of counsels. The following in my view are the issues arising for determination in this suit.

(i) Whether the plaintiff entered into an agreement of sale with the 3

rd

defendant in respect of the suit property.

(ii) Whether the 2

nd

defendant acted as the plaintiff’s agent in respect of the transaction.

(iii) Whether the 2

nd

defendant entered into an agreement of sale with the 3

rd

defendant in respect of the suit property.

(iv) Whether the suit property was transferred and registered in the name of the 1

st

defendant fraudulent.

(v) Whether the plaintiff is entitled to the reliefs sought in the plaint.

(vi) Who is liable for the costs of the suit?

Whether the plaintiff entered into an agreement of sale with the 3

rd

defendant in respect of the suit property.

I am satisfied from the evidence on record that the plaintiff and the 3

rd

defendant entered into an agreement of sale of the suit property on 20

th

April, 2011 under which the 3

rd

defendant agreed to sell to the plaintiff the suit property at Kshs. 735,000/= on terms and conditions that were set out in the said agreement. The 3

rd

defendant admitted the existence of the agreement. The 2

nd

defendant also admitted the agreement but claimed that it was breached by the plaintiff while the 1

st

defendant contended that he was a stranger to the same. The parties to the agreement having admitted the same and the agreement having been produced in evidence without any objection, it is my finding that the plaintiff and the 3

rd

defendant entered into an agreement of sale dated 20

th

April, 2011 in respect of the suit property.

Whether the 2

nd

defendant acted as the plaintiff’s agent in respect of the transaction.

The 2

nd

defendant denied that the plaintiff had appointed him as her agent for the purposes of completing the sale of the suit property. The plaintiff did not produce in evidence any formal agency agreement between her and the 2

nd

defendant or a power of attorney donated by her to the 2

nd

defendant on the strength of which the 2

nd

defendant could have acted on her behalf in the transaction. From the totality of the evidence before the court however, I am convinced that the plaintiff and the 2

nd

defendant had an informal agreement that the 2

nd

defendant would assist the plaintiff in the completion of the transaction while the plaintiff was away in Britain. The 3

rd

defendant testified that when he entered into the said agreement of sale with the plaintiff, the plaintiff was accompanied by the 2

nd

defendant. This fact was not disputed by the 2

nd

defendant. I am in agreement with the 2

nd

defendant that he could not have completed the agreement of sale by executing documents on behalf of the plaintiff. Nothing could however stop him from remitting the balance of the purchase price to the 3

rd

defendant and obtaining or receiving the completion documents from the 3

rd

defendant on behalf of the plaintiff. It is therefore my finding that the 2

nd

defendant was an agent of the plaintiff for the purposes of remitting the balance of the purchase price to the 3

rd

defendant and obtaining the completion documents from him on behalf of the plaintiff. The 2

nd

defendant could not however execute the instrument of transfer of the suit property on behalf of the plaintiff to facilitate the registration of the suit property in favour of the plaintiff.

Whether the 2

nd

defendant entered into an agreement of sale with the 3

rd

defendant in respect of the suit property.

The 2

nd

defendant claimed that after the plaintiff failed to pay the balance of the purchase price thereby frustrating the agreement that the plaintiff had entered into with the 3

rd

defendant, the 2

nd

defendant entered into afresh agreement of sale with the 3

rd

defendant under which the 3

rd

defendant sold the suit property to him at Kshs. 800,000/=. The 3

rd

defendant denied having entered into such agreement with the 2

nd

defendant. The onus was upon 2

nd

defendant to prove the existence of this agreement. The law is clear as to the form which an agreement for sale of land should take. The agreement must be in writing and must be signed by all the parties thereto in the presence of witnesses. See, section 3(3) of the Law of Contract Act, Chapter 23 Laws of Kenya and section 38 of the Land Act, 2012. The 2

nd

defendant did not produce the alleged agreement between him and the 3

rd

defendant in evidence. The 2

nd

defendant claimed that the agreement was oral. The 2

nd

defendant did not also produce any evidence that he paid Kshs. 800,000/= to the 3

rd

defendant as the purchase price for the suit property. He claimed that he made the payment in cash. I believe that even with cash payments, one can obtain evidence of payment in the form of cash payment vouchers or payment acknowledgment receipts. In this case, no evidence of whatsoever nature was produced to show that the 2

nd

defendant had Kshs. 800,000/= and that he paid the same to the 3

rd

defendant. Due to the foregoing, it is my finding that the 2

nd

defendant did not enter into a valid or any agreement with the 3

rd

defendant for the purchase of the suit property and that he did not pay Kshs.800,000/= to the 3

rd

defendant. The 2

nd

defendant did not also produce evidence to show how the suit property was transferred to him by the 3

rd

defendant. He did not produce a copy of the instrument of transfer that was allegedly executed in his favour by the 3

rd

defendant who had denied executing such transfer. There is therefore no evidence that; the 2

nd

defendant entered into an agreement of sale of the suit property with the 3

rd

defendant; that he made any payment to the 3

rd

defendant for the property; and that the 3

rd

defendant transferred the suit property to him.

Whether the suit property was transferred and registered in the name of the 1

st

defendant fraudulent.

In the absence of evidence that, the 2

nd

defendant had an agreement with the 3

rd

defendant for the purchase of the suit property, that the 2

nd

defendant paid for the property and that the same was transferred to him by the 3

rd

defendant, the only inference that the court can draw is that the 2

nd

defendant acquired the suit property fraudulently and as such illegally. The title that was held by the 2

nd

defendant was therefore illegal, null and void. As a holder of an illegal title, the 2

nd

defendant had no valid interest in the suit property that he could transfer to the 1

st

defendant. The title that was transferred by the 2

nd

defendant to the 1

st

defendant was similarly null and void. There is however no evidence that the 1

st

defendant was aware of or was involved in the fraudulent acquisition of the suit property by the 2

nd

defendant. The 1

st

defendant acquired a fraudulent and invalid title that was held by the 2

nd

defendant. He did not however acquire the same fraudulently since he was not a party to the fraud.

Whether the plaintiff is entitled to the reliefs sought in the plaint.

I have at the beginning of this judgment set out the reliefs that have been sought by the plaintiff. The principal reliefs sought by the plaintiff are a permanent injunction and an order of eviction of the 1

st

defendant from the suit property. I am of the view that the plaintiff is not entitled to these reliefs. First, it is not disputed that the suit property is registered in the name of the 1

st

defendant. Although I have held that the 1

st

defendant acquired an invalid title from the 2

nd

defendant, the court was not called upon to nullify or cancel the 1

st

defendant’s title. There is no basis therefore upon which the court can grant an injunction against the 1

st

defendant or order him to vacate the suit property. Secondly, the plaintiff has only established the existence of an agreement of sale that she entered into with the 3

rd

defendant. The plaintiff has not established a title over the property or asked the court to order specific performance in her favour. The injunctive and eviction orders sought by the plaintiff are being sought in vacuum. Thirdly, it was not disputed that the sale transaction between the plaintiff and the 3

rd

defendant was a controlled transaction under the Land Control Act, Chapter 302 Laws of Kenya. The plaintiff did not tender any evidence showing that Land Control Board Consent was obtained in respect of the transaction. In the absence of such consent, the transaction was void and unenforceable by the court.

Due to the foregoing, it is my finding that the plaintiff is not entitled to the reliefs sought in the plaint.

Who is liable for the costs of the suit?

Under section 27 of the Civil Procedure Act, Chapter 21 Laws of Kenya, costs of and incidental to a suit is at the discretion of the court. In the case of before me, I am of the view that the dispute before the court came about as a result of the wrongful acts of the 2

nd

defendant. I will therefore condemn the 2

nd

defendant to pay the costs of the suit.

Conclusion:

In conclusion, I find no merit in the plaintiff’s suit. The same is dismissed with costs to the 1

st

and 3

rd

defendants to be paid by the 2

nd

defendant.

Dated and Delivered at Nairobi this 4

th

day of February 2021

S. OKONG’O

JUDGE

Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of:

N/A for the Plaintiff

Ms. Mwihuri for the 1

st

Defendant

Mr. Burugu for the 2

nd

Defendant

N/A for the 3

rd

Defendant

Ms. C. Nyokabi - Court Assistant