Case ID:182292

Abdillahi Kariuki Adam v Samuel Ndungu Ngamau & 3 others [2021] eKLR

Case Metadata

Case Number:

Environment and Land Suit 706 of 2017

Parties:

Abdillahi Kariuki Adam v Samuel Ndungu Ngamau, Land Registrar Thika, Lucy Wambui Githinji & Attorney General

Date Delivered:

30 Sep 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Judgment

Judge(s):

Lucy Nyambura Gacheru

Citation:

Abdillahi Kariuki Adam v Samuel Ndungu Ngamau & 3 others [2021] eKLR

Court Division:

Environment and Land

County:

Kiambu

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.706 OF 2017

ABDILLAHI KARIUKI ADAM..............................................PLAINTIFF

VERSUS

SAMUEL NDUNGU NGAMAU..........................................1

ST

DEFENDANT

THE LAND REGISTRAR THIKA.....................................2

ND

DEFENDANT

LUCY WAMBUI GITHINJI................................................3

RD

DEFENDANT

HON.ATTORNEY GENERAL............................................4

TH

DEFENDANT

JUDGEMENT

By a Plaint dated

16

th

August 2017,

and filed on

17

th

August 2017,

the Plaintiff herein sought for Judgement against the Defendants jointly and severally for; -

a) A declaration that

Plot No. Ruiru West Block 1/1267

belongs to the estate of

Adam Kimani Mumin

Alias

Adam Mumin

, the Plaintiff’s father.

b) An order cancelling and/or revoking title deed for Plot

No.Ruiru West Block 1/1267,

illegally registered in the names of

Lucy Wambui Githinji,

the 3

rd

Defendant.

c) Defendants to pay Costs plus interests.

d) Any other relief that the Court deems fit to grant.

In his statement of claim, the Plaintiff stated that he brought this suit on behalf of the Estate of

Adam Mumin

(deceased) by virtue of a Limited Grant of Letters of Administration Ad litem. He averred that in

1973

, his late father

Adam Kimani Mumin,

Alias

Adam Mumin

(deceased) became a shareholder of

Githunguri Ranching Co. Limited,

vide share certificate

No.2697

and was issued with a clearance certificate and on

22

nd

September 1992

, he was issued with an allotment letter number 7098/VII/235.

He further averred that sometimes in

2003,

the 1

st

Defendant in collusion with the 2

nd

Defendant fraudulently caused the land to be transferred to the 1

st

Defendant. He particularized fraud thus;

1) Forging share certificate dated

19

th

October 1973,

in the names of

Chege Waweru.

2) Forging a survey fees receipt dated

4

th

July 1973

for survey fees in the names of

Chege Waweru.

3) Forging a ballot card number 1267.

4)

Causing the subject plot of land to be illegally transferred and registered in the name of the 1

st

Defendant without requisite transfer documents from

Githunguri Ranching Co. Limited.

5)

Colluding with the Land Registrar to be issued with title deed without proper legal documents for such a transaction.

It was his contention that after lodging a claim with

Githunguri Ranching Co. Limited,

it was resolved vide a verdict by Directors of the Company on

7

th

July 2017,

that the 1

st

Defendant could not explain how he purchased the suit property from

Chege Waweru,

a copy of share certificate produced by the 1

st

Defendant, had no share certificate number and

Plot No. Ruiru West Block 1 is a

leasehold

area not a

Freehold,

and the

Freehold

title issued to

Samuel Ndungu Ngamau

was fake.

It was his further contention that the registration of the 3

rd

Defendant as the owner thereof should be cancelled.

The suit is contested and the 1

st

Defendant filed a

Defence on 18

th

September 2017,

and averred that he purchased

Plot No.Ruiru West Block 1/1267,

in 2001 from one

Chege Waweru

, after conducting due diligence at

Githunguri Ranching Co.Limited

offices upon production of Survey Fees receipt dated

14

th

July 1973

, ballot card number

1267,

and original share certificate of

Chege Waweru

. Further that in 2002 he obtained a clearance certificate for

Plot No. Ruiru West Block 1/1267

to enable him process a title deed and in

2005,

he sold the said property to one

Lucy Wambui Githinji,

the 2

nd

Defendant.

It was his contention that the suit property was approved as a freehold interest, instead of

leasehold

inside the history of land and settlement letter dated

29

th

September 1998

. He further contends that there is no Privity of Contract between himself and the Plaintiff’s father, as he is an innocent purchaser for value, having purchased the said plot from

Chege Waweru.

3

rd

Defendant also filed her statement of Defence on

19

th

September 2017,

and averred that she purchased the suit property from the 1

st

Defendant vide a sale agreement dated

19

th

August 2004,

and prior to entering into an agreement for sale, he obtained a copy of the title deed and conducted an official search at the Thika Land’s Office. She further averred that prior to the said transaction, the 1

st

Defendant supplied her with copies of clearance certificate issued to him by

Githunguri Ranching Co. Limited

and a letter from the Ministry of Lands dated

29

th

September 1998

. On or about the

2

nd

June 2017

, she was summoned to the

OCS Ruiru Police Station

and accused of having falsely obtained land registration. It was her contention that the

OCS

dismissed them without making entries in the OB, and the same ought to be decided or followed up by

Githunguri Ranching Co. Limited

.

The 2

nd

and 4

th

Defendants filed a statement of Defence on

15

th

May 2019

and vehemently denied allegations raised in the Plaint and the Plaintiff ought to be put to strict proof on

fraud

related issues as raised in his claim.

The matter proceeded by way of

viva voce

evidence on

8

th

July 2020.

Plaintiff’s Case

Pw 1-

Abdillahi Kariuki Adam

adopted his witness statement as part of his evidence. He further testified that his father

Adam Mumin

alias

Adam Macharia

got the share certificate in

1973

, the clearance certificate on

15

th

September 1993,

and an allotment letter in

1992

. He further testified that upon finding out that the land was grabbed, he raised a complaint at

Githunguri Ranching Co. Limited

and the Defendants were summoned.

It was his further contention that there was a verdict by

Githunguri Ranching Co. Limited

signed by all the Directors of the Company. Further, one

Samuel Ndungu Ngamau

was arrested and charged with different counts, but the matter is still pending in Court. He adopted his list of documents as Exhibit 1 and further list of documents as Exhibit 2.

On Cross-examination, he testified that his father had lived on the suit land since

1973,

and died in

2003

, but got to know about the encroachment in the year

2010,

and filed this case in 2007. It was his testimony that he had a share certificate, a letter of allotment dated

22

nd

September 1992

, receipt dated

24

th

September 1992

. He also contended that the land is a leasehold and the 1

st

Defendant forged the documents.

On re examination, he testified that the Land Registrar colluded with the 1

st

Defendant. He further testified that the land was initially for

Githunguri Ranching Co.Limited

and it later came to his father’s name.

On cross examination by the 3

rd

Defendant Counsel, he testified that the 1

st

Defendant colluded with the 1

st

Defendant to grab his land. He further testified that there is a criminal case against the 1

st

Defendant being

CR CASE

No.121 of 2017,

filed at Thika Chief Magistrate’s Court. That the land belonged to his father and he used to pay land rent and rates and the receipts are in Court. Further, that his father died in 2003, and he discovered the encroachment in

2010,

while the case was filed in 2017.

PW 2- John Maina Mburu

, testified that he is the Chairman of

Githunguri Ranching Co.Limited

and the dispute involving

Plot No.Ruiru West Block 1/1267,

was between the Plaintiff, 1

st

and 3

rd

Defendant which started in 2016. He further testified that they made a verdict stating that the Plaintiff was the rightful owner of the suit property having acquired it from his father

Adam Macharia,

who was a shareholder of

Githunguri Ranching Co.Limited

. He contended that during the hearing of the case at

Githunguri Ranching Co.Limited

, the Plaintiff brought the following;- share certificate in the name of Adam Macharia. Affidavit for correctness of names, receipt dated 4/7/1977, receipt dated 7/3/1983, receipt dated 16/12/1988, receipt dated 4/8/1983, receipt dated 4/8/1983, for payment of shares, clearance of shares, letter of allotment dated 27/09/1992, letter dated 27/09/1992 from lands office, ballot card number 1267.

While

Ngamau

had share certificate dated

19/10/1973

, in the name of

Chege Waweru

, copy of survey fees receipt dated

4/7/1973

, certificate of shares no.9057 dated 6/12/2001, receipt dated 30/11/2001, copy of defaced ballot and freehold title deed issued on 14/07/2005.

That both parties came for the hearing of their case and the Board was satisfied that the Plaintiff’s documents were consistent and the ones by 1

st

Defendant had many anomalies such as there was no share certificate number and the receipt of

4/7/1973,

had no receipt number and that the title deed for Ngamau was

Freehold title,

while the suit land is a

leasehold

area.

On cross examination, he testified that the dispute was referred to the Company in

2016

. That they did not know that the area had a title deed and had no documents to prove that the area was a leasehold. That the Company wanted to do a change of user, but discovered that the area had a change of user. He further testified that the documents held by

Ngamau

were not genuine.

Defence Case

Dw 1- Samuel Ndungu Ngamau

adopted his witness statement as part of his evidence and his list of documents as exhibit 1-6.

On cross examination, he testified that he has no sale agreement and cannot trace it and that he has a criminal case, but not yet convicted. He further testified that the land is freehold, but the former chairman said that it was leasehold.

Upon cross examination by the Counsel for the 3

rd

Defendant, he stated that he knew about the dispute in 2017, upon being called by the OCS Ruiru. He further stated that the land is

Freehold

and not

Leasehold,

and referred to the letter of

1998,

from the Ministry of Lands.

Upon cross examination by the Counsel for the 4

th

Defendant, he stated that he processed the title for himself and used the letter that he got from

Githunguri Ranching Co. Limited

.

On re-examination, he testified that he used the clearance from

Githunguri Ranching Co. Limited,

to process title. He further testified that the land is registered in the name of

Lucy Wambui.

Dw 2-Lucy Wambui Githinji

adopted her witness statement filed on

19

th

/9/2017,

and her list of documents as Exhibits 1-7.

On cross examination, she testified that she did a search and noted that the land was for

Samuel

and she has the title deed in the name of the 1

st

Defendant.

On re-examination, she stated that she did due diligence and also did a search and the land was in the name of

Samuel Ndungu Ngamau.

Dw 3- Robert Mugendi Mbugua,

testified that he is a Land Registrar stationed in Ruiru. He prepared a list of documents and witness statement dated

14

th

/12/2010,

and adopted the same as his evidence.

On cross examination by the Plaintiff Counsel, he stated that the block of land is owned by

Githunguri Ranching Co.Limited,

and that the land is freehold. He further testified that with regard to the tenure of the land,

Ruiru West Block 1,

was initially issued with leases in the year

2002,

but in

2018,

the

Director of Land Administration

communicated to

District Land Administration Officer,

advising that the land be converted to Leasehold from Freehold. That there are owners of land who have both leases and freehold titles and that the land was allegedly transferred to Samuel, the same date it was transferred to Lucy.

On cross examination, by the 1

st

Defendant Counsel, he testified that the land is now Freehold since 2003, and registration as freehold that time was valid. That Lucy is the registered owner.

On cross examination by the 3

rd

Defendant Counsel, he stated that he did not have the documents before a caution was filed, and the Plaintiff applied for the caution as the owner.

After the

viva voce

evidence, parties were directed to file written submissions. The Plaintiff filed his submissions dated

10

th

January 2021,

through the

Law Firm of B N Kilonzo &Co. Advocates

. The 1

st

Defendant filed his submissions dated

29

th

March 2021,

through the

Law Firm of Millimo Muthomi &Co. Advocates.

The 3

rd

Defendant filed her submissions dated

8

th

March 2021,

through the

Law Firm of Agnes W.Njoroge &Co. Advocates

and the 2

nd

and 4

th

Defendants filed their submissions dated

12

th

June 2021

through

Mwihaki Ndundu

for the Attorney General.

Having now carefully read and considered the pleadings, written submissions by the parties, cited authorities and relevant provisions of law, the Court finds the issue for determination as follows;

1.

Who is the bonafide owner of

Plot No.Ruiru West Block 1/1267.

2.

Whether the Plaintiff is entitled to the orders sought

Who is the bonafide owner of

Plot No.Ruiru West Block 1/1267

.

It is the Plaintiff’s case that the late

Adam Kimani Mumin

Alias

Adam Mumin

(deceased)

was the registered owner of the suit property, having been allotted the same by the

Githunguri Ranching Company Limited

. Further, the Plaintiff testified that the late

Adam Kimani Mumin

Alias

Adam Mumin

was issued with a share certificate and a Clearance Certificate upon which he sought to be registered as the proprietor of the suit property.

On the other hand, the 1

st

Defendant has alleged that he purchased

Plot No.Ruiru West Block 1/1267,

in

2001

from one

Chege Waweru

after conducting due diligence at

Githunguri Ranching Co.Limited,

offices upon production of Survey fees receipt dated

14

th

July 1973

, ballot card number

1267,

and original share certificate of

Chege Waweru

.

The 3

rd

Defendant contends that she purchased the suit property from the 1

st

Defendant vide a sale agreement dated

19

th

August 2004.

This Court has seen

share certificate in the name of

Adam Macharia

, affidavit for correctness of names, receipt dated 4/7/1977, receipt dated 7/3/1983, receipt dated 16/12/1988, receipt dated 4/8/1983, receipt dated 4/8/1983 for payment of shares and letter of allotment dated 27/09/1992

However, the Plaintiff still has an obligation to give evidence on the procedure that was used to acquire the title to land. See the case of

Hubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others[2016] eKLR

,

where the Court held that;

‘A Court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.’’

On the other hand, the 1

st

Defendant contends that he purchased

Plot No.Ruiru West Block 1/1267,

in

2001

from one

Chege Waweru,

after conducting due diligence at

Githunguri Ranching Co.Limited

However, the Plaintiff has pleaded that all these documents are a forgery.

Having alleged that the 1

st

and 3

rd

Defendants procured the title through falsified documents, it then became incumbent upon the Plaintiff to prove the same. The Plaintiff has relied on a verdict from the

Githunguri Constituency Ranching Company Limited

that stated that

the Board was satisfied that the Plaintiff’s documents were consistent and the ones by 1

st

Defendant had many anomalies e.g. there was no share certificate number and the receipt of

4/7/1973,

had no receipt number and that the title deed for

Ngamau

was Freehold title while the suit land is a leasehold area.

As already stated, there was a process through which a shareholder of the Company could acquire title. The 1

st

Defendant claim that he

has share certificate dated 19/10/1973, in the name of

Chege Waweru

, copy of survey fees receipt dated 4/7/1973, Certificate of shares No.9057, dated 6/12/2001, receipt dated 30/11/2001, copy of defaced ballot and freehold title deed issued on 14/07/2005.

Though, the 1

st

and 3

rd

Defendants have produced documentation, including a share certificate and a clearance certificate from

Githunguri Constituency Ranching Company,

dated 22/11/2002

, a title deed in the name of the 3

rd

Defendant, they have failed to give evidence of the process through which

Chege Waweru

transferred the suit land to 1

st

Defendant

. There is nothing on record to show the process of transfer in terms of sale agreement, transfer or purchase of shares by one

Chege Waweru

in favor of the 1

st

Defendant.

The Court has seen the verdict by

Githunguri Constituency Ranching Company

dated

7

th

July 2017,

which stated

that the Board was satisfied that the Plaintiff’s documents were consistent and the ones by 1

st

Defendant had many anomalies e.g. there was no share certificate number and the receipt of

4/7/1973,

had no receipt number and that the title deed for Ngamau was Freehold title while the suit land is a leasehold area. The same sentiments were confirmed by Pw 2 and was not challenged.

The above verdict was never challenged by the 1

st

and 3

rd

Defendants who had an obligation to even appeal the said decision through the

Githunguri Constituency Ranching Company

administrative organs or the Court but they failed to do so.

Section 26 (1) of the Land Registration Act,

gives a registered owner of property absolute and indefeasible rights over the said property. However, it is not in doubt that the said title can be impeached if it is found to have been acquired unprocedurally or through fraud.

In this instant case, the 1

st

and 3

rd

Defendants have not established the root of their title and it is the Court’s considered view that the Plaintiff has proved how he acquired the suit property and the same was acquired procedurally.

However, despite the 1

st

Defendant producing documents indicating that

Chege Waweru

was the owner of the suit property, he failed to prove that the title deed to the suit property was acquired procedurally as there seems to be no evidence of the transfer and the resultant transaction to the 3

rd

Defendant was thus illegal.

Therefore, the Court finds and holds that Plaintiff is the bonafide owner of

Plot No. Ruiru West Block 1/1267,

having acquired it from

Adam Mumin (deceased),

by virtue of a Limited Grant of Letters of Administration Ad litem.

(ii)

Whether the Plaintiff is entitled to the orders sought

The Plaintiff had sought for amongst other prayers that the Court declares that the suit property belongs to the

estate of

Adam Kimani Mumin

Alias

Adam Mumin

, an order of cancellation/revoking of the title deed of the suit property and costs. This Court has already found and held that the manner in which the suit property was transferred to the 3

rd

Defendant was not proper and therefore the prayer by the Plaintiff to be declared as the rightful owner of the suit property is found proper and will therefore stand and succeed.

The Plaintiff urged the Court to cancel the title deed held and registered in the name of the 3

rd

Defendant in line with

Section 80

of the

Land Registration Act.

Section

80 (1) of the Land Registration Act provides that: -

“Subject to subsection (2), the Court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake

.”

This Court holds and finds that the Plaintiff has discharged the onus of proving his case on a balance of probability

.

Since the Court already came to a conclusion that there was no due process in which the title was issued to the 3

rd

Defendant, there would therefore be no reason as to why the same should not be cancelled.

The Upshot of the foregoing is that the title held by the 3

rd

Defendant is illegal and therefore cancelled. However, the Court declares the Plaintiff as the rightful owner of the suit property.

Having now carefully considered the available evidence herein, the cited authorities and relevant provisions of the law and the rival written submissions, the Court finds that the Plaintiff has discharge the burden of proving his claim on a balance of probability. Consequently the Court enters judgement for the Plaintiff against the Defendants herein jointly and severally in terms of prayers no.

(a) (b)

and

(c)

of the Plaint dated

16

th

August, 2017.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 30TH DAY OF SEPTEMBER, 2021.

L. GACHERU

JUDGE

Court Assistant – Kuiyaki