Case ID:178567

Njuguna Kigera v James Nderitu Wairuku [2021] eKLR

Case Metadata

Case Number:

Civil Appeal 99 of 2011

Parties:

Njuguna Kigera v James Nderitu Wairuku

Date Delivered:

08 Jul 2021

Case Class:

Civil

Court:

High Court at Nakuru

Case Action:

Judgment

Judge(s):

Hilary Kiplagat Chemitei

Citation:

Njuguna Kigera v James Nderitu Wairuku [2021] eKLR

Case History:

(Being an Appeal from the Judgement of Hon. A B Miongare (SRM) Dated 10th May 2011 in Nyahururu PMCCC No. 120 of 2004)

Court Division:

Civil

County:

Nakuru

History Docket No:

PMCCC 120 of 2004

History Magistrate:

Hon. A B Miongare - SRM

History County:

Laikipia

Case Outcome:

Appeal 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 HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 99 OF 2011

NJUGUNA KIGERA.................................................APPELLANT

VERSUS

JAMES NDERITU WAIRUKU.............................RESPONDENT

(BEING AN APPEAL FROM THE JUDGEMENT OF HON. A B MIONGARE

(SRM) DATED 10

TH

MAY 2011 IN NYAHURURU PMCCC NO. 120 OF 2004)

JUDGEMENT

1. The matter before the trial court revolved around the ownership pf land parcel number

LAIKIPIA SALAMA /MARUKU BLOCK 4/560

in which the respondent had accused the appellant of fraudulently obtaining title to the same. The said parcel of land was a resultant sub division of parcel number

748

allotted to the respondent by

Kieni farmers company limited (

who were the 2

nd

respondent) where he was a shareholder.

2. In the pleadings before the lower court the respondent accused the appellant of trespassing on the said land and having registered himself illegally with a full knowledge that he was not a shareholder at the said land buying company and that he took advantage of duplication of numbers after survey exercise and had himself as the registered owner of the said land.

3. When the matter came up for trial the respondent satisfied the court that indeed there was duplication of numbers and that the survey office had ordered the lands registrar to carry out changes on the register so as to have the respondent registered as the true proprietor.

4. It was further the evidence of the appellant at the trial court that he obtained the said parcel of land from the company courtesy of one Gachara Thagara. There was no such documentary evidence indicating such transfer to the appellant whether by the chairman or the resolutions of the company.

5. As a consequence, and based on the evidence presented, the trial court found that indeed the appellant had illegally had himself registered as the owner of the parcel and ordered the cancellation of the title deed and have the same revert to the respondent.

6. When this appeal came up for hearing there was no representation on the part of the respondent although there was an affidavit of service date 12

th

May 2021 which showed that he had been served. The parties had been directed to file their written submissions which the appellant alone complied.

7. The appellant filed this appeal on two basic grounds, namely, on the issue of jurisdiction and first registration. The appellant submitted that the trial court failed to appreciate that it did not have jurisdiction to entertain the matter as it was dealing with a title cancellation which was only a preserve of this court.

8. He relied on the case of

SAID BIN SEIF V. SHARIFF MOHAMED SHATRY (1940) 19 KLR

in which the court found that the issue of jurisdiction could be raised at any time whether at the trial level or during the appeal. On that score he urge the court to allow the appeal entirely.

9. On the issue of first registration the appellant argued that the title deed held by the appellant was the first of its kind and as per Section 143 (1) of the now repealed Registered Land Act the same could not be cancelled. The trial court by ordering its cancellation erred and ought to be set aside. That the issue of fraud requires a higher standard of proof a fact which the appellant did not discharge.

ANALYSIS AND DETERMINATION.

10. The court has perused the evidence on record which in my view does not contest much on how the appellant came into possession of the land and the title. What is clear is that he was not a shareholder at the land buying company and as can be deduced from the evidence it was the company’s chairman who gave him the land.

11. Secondly there was duplication of the numbering of the parcels during the sub division exercise and that is why the District Land Registrar wrote to the District Surveyor vide the letter dated 6

th

November 2003 to carry out the changes in land parcel number

SALAMA /MURUKU BLOCK 4/560.

12. The land registrar on 15

th

December 2003 wrote that.

“As per your request, I have changed no 560 in R I M sheet no.3 to 1394 and 560 in sheet no 1 to remain

.”

13. The other allegations of the appellant trespassing on the said land and carrying out some construction was not disputed.

14. Did the trial court have jurisdiction to handle the matter? The appellant does not think so. He argued that it was the preserve of the high court alone. He said that despite the fact that the issue was not raised during trial save at the level of submissions the court was obliged to have considered.

15. It is true that the issue of jurisdiction can be raised at any one time and there have been plethora of decisions by this court and the appellate courts one of them is the case of

KABITAO KARANJA VS.

AG (CIVIL APEAL NO. 310 OF 1997

relied on by the appellant.

16.

Section 2

of the now repealed

Registered Land Act

defines the court as that which has jurisdiction as provided under

Section 159

of the said act.

17.

Section 159

indicates that it is the high court which is seized of jurisdiction to determine issues touching on

title possession of land or title to the ease etc. and where the subject matter does not exceed 25 thousand pounds.

18. Whereas therefore it is the high court which has jurisdiction to deal with issues regarding registered land it appears that the magistrate court like the matter at hand had similar jurisdiction provided it was within its monetary jurisdiction. The above section talks of “

25 thousand pounds

”.

19. If that was the case it is easy to conclude that the court to the extent that nobody challenged its jurisdiction at that trial level had jurisdiction to handle the matter. The land as per the green card produced was 1.3 ha or thereabouts. Its value was not known as it never arose. It is therefore more probable than not that it had the ability to handle it.

20. This was alluded to by the court in the case of ISSAC

MAINA MURATHE Vs. JESIDAH WANJIRU MURATHE

[2010] e KLR

, for instance, where hon. lady justice W. Karanja, J. (as she then was) addressed the issue of the tribunal’s jurisdiction as follows;

“This jurisdiction does not therefore extend to determining ownership of land and cancellation of title deeds. The tribunal had no jurisdiction to interfere with these rights. Issues of ownership of registered land and alteration or cancellation of title deeds is strictly within the domain of the High Court and

the subordinate court in a few instances

depending on the value of the land.

The orders made by the Tribunal/Provincial Committee though well intentioned were therefore

ultra vires

the law and the same are null and void for all intents and purposes.” (

Underlining mine).

21. The court similarly in

JOTHAM

AMUNAVI Vs. THE CHAIRMAN SABATIA DIVISION LAND DISPUTES TRIBUNAL & ANOR

Kisumu Civil Appeal No. 250 of 2002 (unreported)

on the same line stated as follows;

“It is clear that the proceedings before the tribunal related both to title to land and to beneficial interest in the suit land. Such a dispute is not, in our view, within the provisions of Section 3(1) of this Land Disputes Tribunal Act.

By Section 15 of the RLA such a dispute can only be tried by the High Court or

by the Resident

Magistrate’s Court in cases where such latter

court has jurisdiction.”(

underlining mine).

22. The court consequently had the jurisdiction to determine the matter and indeed it found that the appellant had illegally registered himself as the owner of the suit land. All the facts and evidence point to this.

23. On the issue of first registration this court does not believe the line of argument taken by the appellant. It is agreed that there was a problem with the survey work as evidence by the correspondences between the District surveyor and the Land registrar over parcel number 560. This was as a result of the subdivision of land parcel number 748 and which the appellant conceded that it belonged to the respondent.

24. In view of the above facts the court could not and for this matter turn a blind eye on the fraud perpetrated by the appellant and the 2

nd

appellant chair. It is not enough to wave the title and argue that I am a first registered owner and my title is indefeasible by virtue of the provisions of

Section 143(1) of the Registered Land Act.

The process of acquisition of the same must and ought to be interrogated. In this case the process was void and that is why the trial court arrived at its findings.

25. For the forging reasons and especially the two grounds which the appellant relied on in this appeal, the court does not find any merit over the same. The appeal is dismissed with no orders on costs.

DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 8

TH

DAY OF JULY 2021.

H. K. CHEMITEI.

JUDGE