Elizabeth Sarange Abange v Milka Musimbi Mavia & 8 others (Civil Appeal 74 of 2018) [2022] KECA 904 (KLR) (8 July 2022) (Judgment)
Neutral citation:
[2022] KECA 904 (KLR)
Republic of Kenya
Civil Appeal 74 of 2018
F Tuiyott, PO Kiage & M Ngugi, JJA
July 8, 2022
Between
Elizabeth Sarange Abange
Appellant
and
Milka Musimbi Mavia
1st Respondent
Alfred Magotsi
2nd Respondent
Livingstone Arunga Mavia
3rd Respondent
Bonface Witira Mavia
4th Respondent
Mmbone Magotsi
5th Respondent
Esther Magotsi
6th Respondent
Christine Arunga
7th Respondent
Annah Mwelema
8th Respondent
Everrline Makungo
9th Respondent
(Being an appeal from the judgment and decree of the Environment & Land Court at Eldoret (Ombwayo, J) dated 18th April, 2018 in ENVIRONMENT & LAND COURT CASE NO. 228 OF 2012 (formerly ELD HCC NO. 7 OF 2006
Environment & Land Case 228 of 2012
)
Judgment
JUDGEMENT OF TUIYOTT, JA
1.This dispute is between Elizabeth Sarange B. Abenga (the appellant) and members of the family of John Mavia Wetira (the deceased).
2.In a suit filed at Eldoret High Court being Civil Suit No. 7 of 2006 and later designated ELC No. 228 of 2012, the appellant brought an action against the nine respondents seeking, in the main, that they be evicted from land parcel number Uasin Gishu/Kimumu/1567, which is registered in the name of the appellant. The deceased was the husband of the 1st respondent and father of the 2nd to 9th respondents.
3.In resisting the claim by the appellant, the respondents stated that they were in actual occupation of the land and that the interest of the appellant is subject to their right to possession and occupation under section 30 (g) of the now repealed Registered Land Act. As an alternative plea, they averred that the title of the appellants was obtained by fraud, citing an alleged failure to obtain consent of the relevant Land Control Board; failure to enquire about their interest before obtaining title; purchasing land from the initial proprietor in “contumentons” (sic) disregard for their right of occupation; colluding with the Land Registry staff at the Uasin Gishu District Lands Registry to remove restrictions placed on the suit land; and forgery and obtaining a fake land control board consent. In a counterclaim dated 12th September, 2006, they sought a declaration that the registration of the appellant was a nullity and cancellation of the registration of the appellant as proprietor.
4.At trial, the appellant told court how she conducted an official search of the register of the suit land in 2005 before buying the property from the deceased. After the search, she entered into a written agreement dated 13th September 2005 with the deceased who had been introduced to her by one Robert O’gitange Otieno (PW2). The purchase price was Kshs. 450,000.00. She paid Kshs. 270,000.00 on the date of the agreement and the balance of Kshs. 180,000.00 on 16th September, 2005.
5.It was her evidence that a transfer was done on the last day of payment and that consent of the Land Control Board had been processed by the deceased and granted to him. She was however unable to access the parcel of land as it was occupied by the respondents. It emerged that there was a restriction placed on the title but which was removed on 8th December 2003, a day before the title was issued in her favour.
6.The 1st respondent told the trial court that she is the widow of the deceased and was jointly with her late husband allocated the suit land in 1966 and paid all the dues required by the Settlement Fund Trustees. It was her contention that the land belonged to her and her husband although it was solely registered in his name. Her testimony was that there had been an earlier attempt by the deceased to sell the land but the transaction was stopped upon her filing a claim before the now defunct Land Disputes Tribunal in Award No. 28 of 2005. She and her children were not invited to the Land Control Board.
7.Her child, Livingstone Arunga Mavia, testified as DW2. His testimony was that in the suit land are six graves including that of his grandmother. The deceased, however, was buried in a different land at Kamagut and which is about 2 acres and which land was apparently bought by the deceased using the proceeds of sale of the suit land.
8.After considering the evidence and submissions of counsel, the trial court held that as the land was transferred to the appellant when Land Disputes Tribunal Award No. 28 of 2005 was pending then the transaction was caught up by the doctrine of lis pendens. In the end the trial Judge concluded: -
9.In the submissions filed before us, the appellant collapsed her grounds of appeal to five. She urges that the learned judge erred in law and fact in: -a.Holding that her registration as a proprietor of Uasin Gishu/Kimumu/1567 is a nullity on the grounds that no Land Control Board consent was obtained and on the doctrine of trusteeship.b.Failing to appreciate and apply the doctrine of sanctity of title and to find that the appellant was a bona fide purchaser for value without notice.c.By extending the application of the doctrine of lis pendens.d.By failing to consider the case as presented by the appellant and instead relied on the decision of the Land Dispute Tribunal to dismiss the appellant’s case.e.By awarding costs of the suit to the respondent.
10.It was submitted for the appellant that sections 23, 24 and 26 of the Land Registration Act (which are similar to sections 27 and 28 of the repealed Registered Land Act Cap. 300) provides that title issued by the Land Registrar is prima facie evidence of title and a person registered as proprietor is deemed as the absolute owner with all rights and privileges appurtenant thereto. Under section 25, such title shall only be subject to restrictions and encumbrances that are registered against the title. The appellant argued that she conducted a search on the property on 9th September, 2005 and ascertained that there existed no inhibitions, cautions, restrictions or encumbrances against the title held by the deceased.
11.As regards the consent of the Land Control Board, the appellant contends that it is common conveyancing practice that the vendor obtains the consent and the deceased applied for and obtained the consent dated 5th August, 2005. She further argues that the respondents did not prove fraud or a corrupt scheme on her part to justify nullification of registration in her name.
12.Further, we were urged to find that the mere fact that the respondents are relatives to the deceased did not entitle them to a claim over the suit property. The respondents, we are told, did not produce any evidence to support their claim for existence of a trust or to create a nexus or link of the alleged trust to the deceased. The Court was referred to various decisions in support of the argument by the appellant that the onus is on a party relying on the existence of trust to prove it through evidence and the same can never be implied by court unless there was an intent to create it in the first place, reference being made to the holdings in Juletabi African Adventure Limited & Another vs Christopher Michael Lockley [2012] eKLR, Alice Wairimu Macharia vs Kirigo Philip Macharia [2019] eKLR.
13.On the issue of the restriction, the appellant submits that the certificate of official search was obtained before the restriction ordered by the Land Disputes Tribunal was registered on 21st September, 2005. The restriction was removed on 7th December, 2008 and the appellant registered as sole proprietor on 9th December, 2005, after the restriction was removed. She states that she had no knowledge of the restriction or its removal. Further, that as she was not a party to the dispute before the Land Disputes Tribunal she was an innocent purchaser for value with no notice of any prior dealings on the property.
14.This Court was asked to find that by dint of the provisions of section 3 (1) of the now repealed Land Disputes Tribunals Act, 1990, the Land Disputes Tribunal lacked jurisdiction to determine issues touching on the sale, purchase or registration of land and the rights of a purchaser. The decision in Elekia Mabosio Marenga [2018] eKLR and Wamwea vs Catholic Diocese of Muranga Registered Trustees [2013] eKLR were cited. Flowing from these submissions was the contention that the learned Judge erred in holding that registration of the property in the name of the appellant was illegal as the Tribunal had ordered that the property be registered in the name of the respondents.
15.It is further argued that the decision of the Tribunal was only specific to the dispute between the deceased and the respondents and did not determine the legality or otherwise of the appellant’s title to the property. On whether the doctrine of lis pendens rendered the title acquired by the appellant illegal, the appellant sought to rely on the decision of the Supreme Court of India in Hardev Singh vs Gurmail Singh [2007] 2 SCC 404 where the court held;
16.Counsel for the appellant further asserts that the doctrine only applies where a matter is filed before a court of competent jurisdiction (Dev Raj Dogra & Others vs Gyan Chand Jain & Others 1981 SCR (3) 174).
17.On costs, the appellant takes the position that the trial court failed to take into consideration the factors that triggered the litigation and the fact that the respondents caused the litigation when they refused to vacate the property of the appellant and to allow her to enjoy quiet possession of the same.
18.In answer to the appellant’s submissions, the respondents, through counsel, filed submissions dated 27th July, 2020. The respondents beseech us to find that the appellant had admitted the respondents’ overriding interest under section 30 (g) of the repealed Registered Land Act, Cap 300 having confirmed that she visited the suit land and saw the respondents on it. Further, she confirmed that the Land Control Board consent was undated, and the nature of transaction and consideration were not indicated. It was also submitted that her conduct in acquiring the land showed that she was aware of the respondents’ interest.
19.The respondents rely on the definition of “bona fide purchaser” found in Black’s Law Dictionary 8th Edition to argue that the Judge’s findings of invalidity of her title and rectification pursuant to section 143 of the Repealed Registered Land Act cannot be faulted.
20.On the maxim of lis pendens, the respondents’ view is that the appellant did not need to be party to the litigation to be bound by it. The respondents refer us to the decision of Madan JA in Mawji vs United States International University & Another [1976] KLR 185.
21.The respondents contend that the appellant could not feign ignorance of the existence of the pending dispute and that she had to remove the restriction to have the land transferred to her. The learned trial Judge is applauded for reaching a conclusion that the removal of the restriction was for the purpose of registering the 1st and 3rd respondents as proprietors in tandem with the decree of the court and not to transfer the land to the appellant.
22.On the question of lack of jurisdiction by the Tribunal, the respondents argue that no party appealed against its decision. The Judge could not therefore be faulted for applying it because he was not inquiring into the jurisdiction of the Tribunal.
23.On the question of trust, the respondents submit that evidence at trial showed that the deceased held the suit land in trust for the family members and this was affirmed by the Land Disputes Tribunal. The respondents rely on section 28 of the repealed Registered Land Act that a proprietor of land is not relieved from any duty or obligation to which he was subject as a trustee.
24.Finally regarding costs, the respondents’ simple answer is that a successful party is entitled to costs as costs follow the event.
25.The applicability of the doctrine of lis pendens in Kenya is undoubted. In Mawji (supra) Madan JA (as he then was) said this about that doctrine and its objective; -
26.I agree with the submissions by counsel for the appellant that the effect of the doctrine is not to void or annul a transaction that has taken place during the pendency of a suit, but to bind the purchaser to the outcome of the litigation. That being the case, if the result of the litigation is to upset the interest of the vendor in the property, then the transfer to the purchaser will be of no effect and the purchaser will have failed to acquire any interests or rights over the property. In effect, the outcome of the litigation renders the transfer a nullity.
27.A second issue raised by the appellant is that the doctrine of lis pendens would be inapplicable to this dispute as the Land Dispute Tribunal whose decision was adopted in Eldoret Chief Magistrate Tribunal Case No. 25 of 2005 - Milka Musimbi Mavia & Another vs John Mavia Wetira did not have jurisdiction to hear or determine the dispute between the deceased on the one hand and the 1st and 2nd respondents on the other over ownership of the suit property. The proposition that the doctrine of lis pendens only applies where the pending litigation is before a court of competent jurisdiction is not without merit (Dev Raj Dogra & Others (supra)). The logic is that proceedings before a court without jurisdiction, and therefore its outcome, is a nullity and cannot therefore defeat a transaction that has happened. However, a party whose interests in a property sought to be impugned by virtue of the doctrine of lis pendens and whose defence is that the litigation was before a court without jurisdiction, must seek a specific declaration to that effect so as to avoid the effects of the doctrine. In this instance, once it was clear to the appellant that a defence of the respondents was that the transfer of the property to her was subject to the outcome of the Land Dispute Tribunal Award No. 28 of 2005, it was upon her to plead that the Tribunal lacked jurisdiction so as to avoid the rigours of the doctrine. That would serve as a formal invitation to the trial court to interrogate the issue of the competency of the proceedings before the Tribunal and the court that adopted the Tribunal’s decisions and make a specific pronouncement in that respect.
28.In paragraphs 11 and 12 of her reply to amended defence and counterclaim, the appellant avers:
29.Other than finding that the transaction between the deceased and the appellant was in breach of the doctrine of lis pendens, the trial court did not address the issue of the competence or otherwise of the Tribunal. On this, the trial court fell into error.
30.It falls on us to determine the issue. It is common ground that the dispute between the two respondents and the deceased was one regarding ownership of the suit land. The Land Disputes Tribunal was established by section 4 of the Land Disputes Act, 1990 (now repealed) and section 3 (1) provided for its jurisdiction:
31.Clearly, the Tribunal did not have jurisdiction to determine a dispute over title to land and was therefore incompetent to hear and determine a dispute over the ownership of the suit land. Contrary to what the respondents argue, this position does not change notwithstanding that no appeal was preferred against the decision. The Tribunal being bereft of jurisdiction, then the purchase of the suit land by the appellant could not be an affront to the doctrine of lis pendens. On this I reach a different outcome from the trial court.
32.I turn to the next issue. The evidence is that at the time of purchasing the suit land, the appellant was aware that the respondents occupied the suit land. The appellant, however, states that she did not bother to inquire as to the nature of occupation and whether it was pegged on any rights. Yet a term of the sale agreement betrays the appellant’s assertion that she was unaware of the respondents’ interest over the land. Clause 9 reads;
33.At least two issues arise. It may be asked why the deceased would have to seek a ‘no objection’ from members of the family if they did not have an interest over the land. This serves to buttress the assertion by the respondents that the suit land was family land held by the deceased on their behalf. The occupation of the suit land was further testimony of this. A second issue that arises is that clause 9 placed an implicit onus upon the appellant to inquire from the respondents whether they objected to the sale. Having failed to do so, she cannot be said to be a bona fide purchaser without notice and must suffer any consequences that follow that failure.
34.In their defence, the respondents invoked section 30 (g) of the Repealed Registered Land Act Cap 300 which provides:
35.By failing to make the inquiry expected of her, the purchaser took the title subject to the respondents’ right of possession and actual occupation.
36.The appellant’s title, it would seem, still has further difficulties. The transaction entered into between the appellant and the deceased was a controlled transaction subject to consent by the Land Control Board. Indeed, the need for consent was expressly contemplated by the terms of the sale agreement. Clause 6 provides: -
37.From the language in this covenant, the consent had not been obtained as at the date of the agreement on 13th September 2005. It turns out, however, that the consent which was used to effect the transfer to the appellant was granted in a meeting held on 2nd August 2005. This would be more than a month before the date of the agreement.
38.As to how the consent was sought and granted, the appellant testified as follows:
39.When pressed, in cross-examination, to explain why the stamp of the board was not on the consent, she stated:
40.One quickly notices the shift in position. At one time the appellant says that she applied for the consent, on another that it was acquired or obtained by the deceased. This shift is troubling in the face of the respondents’ assertion that the consent was a forgery. And even if it was the vendor who obtained the consent, the appellant ought to have noticed that it pre-dated the date of the agreement when the agreement itself contemplated that it had not been obtained on that date. In reaching this conclusion i will not get drawn into discussing whether or not the consent lacked validity because it was obtained before the date of the agreement. That is beyond the scope of this decision. Simply, it is to demonstrate that the allegation by the respondents that the consent was a work of fraud is not a trifle. It is in fact well founded.
41.Further evidence is that the date when the application for the consent was made and the nature of the transaction and purchase price were not disclosed on the consent. Given these circumstances, the trial court cannot be faulted for concluding:
42.In addition, a restriction which had been on the register of the suit land was removed on 8th December 2005 just one day before the transfer was effected on 9th December 2005.
43.In the end, I find that the transaction was fraught with stark irregularities that could not go unnoticed by the appellant or which ought to have been easily noticed the appellant. The conclusion to draw is that reached by the trial court; the appellant was not a bona fide purchaser without notice of the irregularities. She had to suffer the consequences of participating in an irregular transaction. The trial court was entitled to frown upon the transaction and to make the orders it made.
44.I find no merit in the appeal and would propose that it be dismissed with costs.
JUDGMENT OF KIAGE, JAI have read in draft the judgment of my learned brother Tuiyott, JA. with which I am in full agreement and there would be no utility in my adding anything thereto.As Mumbi Ngugi, JA also agrees, the appeal shall be disposed of as proposed by Tuiyott, JA.
JUDGMENT OF MUMBI NGUGI, JAI have read in draft the judgment of my learned brother Tuiyott, JA. with which I am in full agreement and have nothing useful to add.
Dated and delivered at Kisumu this 8th day of July, 2022.F. TUIYOTT...................................JUDGE OF APPEALP. O. KIAGE...................................JUDGE OF APPEALM. NGUGI...................................JUDGE OF APPEALI certify that this is atrue copy of the original.Signed.DEPUTY REGISTRAR