Mbugua & 3 others (Sued as the Administrators and Personal Representatives of the Estate of Joseph Kiarie Mbugua - Deceased and in Their Capacities) v Njuguna & 2 others (Civil Appeal 211 of 2019) [2024] KECA 1931 (KLR) (20 December 2024) (Judgment)
Neutral citation:
[2024] KECA 1931 (KLR)
Republic of Kenya
Civil Appeal 211 of 2019
MSA Makhandia, S ole Kantai & A Ali-Aroni, JJA
December 20, 2024
Between
Florence Wairimu Mbugua
1st Appellant
Grace Wanjiku Mbugua
2nd Appellant
Peter Chege Kiarie
3rd Appellant
Sylvia Murugi Mbugua
4th Appellant
Sued as the Administrators and Personal Representatives of the Estate of Joseph Kiarie Mbugua - Deceased and in Their Capacities
and
George Kamau Njuguna
1st Respondent
Stephen Gathecha Mbugua
2nd Respondent
The Attorney General on Behalf of the Registrar of Lands
3rd Respondent
(Being an appeal from the Judgment and Decree of the Environment and Land Court at Nairobi (Bor, J.) dated 1st October 2018 in ELC No. 558 of 2008
Environment & Land Case 558 of 2008
)
Judgment
1.This is an appeal by the appellants against the judgment and decree of Bor, J. of the Environment and Land Court, (“ELC”) in Case No. 558 of 2008 delivered at Nairobi on 1st October 2018. By the judgment and decree, the ELC decreed that the respondents were the rightful owners of all those pieces or parcels of land known as Nairobi Block 119/574 and 575, respectively, (“the suit property”), and granted a declaration that: the appellants’ continued occupation of the suit property was illegal and fraudulent; the appellants were directed to demolish any structures developed on the suit property and to vacate it within three months from the date of judgment. In the event that the appellants did not demolish the structures, the respondents were at liberty to do so and recover the costs from the appellants as part of the decree. Lastly, the officer commanding Kasarani Police Station was directed to supervise and give security during the demolition exercise. On the other hand, the ELC was persuaded that the appellants did not prove their case entitling them to a counterclaim in the nature of declaration that they were the proprietors of the suit property. Their counterclaim was accordingly dismissed.
2.The facts giving rise to this appeal are straightforward and clear. According to the respondents, they were registered owners of the suit property, which they acquired in or about 1994. They came up with the idea of putting up a petrol station on the suit property. They, therefore, approached their friend, Joseph Kiarie Mbugua, deceased, (“Mbugua”), so that he could introduce them to an architect to draw plans for the petrol station. Mbugua asked them to give him the title documents in respect of the suit property which they did. However, Mbugua fraudulently and unlawfully caused the land registrar to transfer and register the suit property into his name. He then put up a petrol station. When the respondents confronted him over the issue, he threatened them by pointing a gun at them, and they fearing for their lives, backed off. After the death of Mbugua, the respondents filed a suit leading to this appeal against the appellants who are the administrators of the estate of Mbugua and the 3rd respondent jointly and severally, in terms of prayers that were granted and which we have already reproduced at the commencement of this judgment.
3.The appellants, in response, filed a Defence and Counterclaim denying the respondents’ claim. They averred that the respondents were only taking advantage of the demise of Mr. Mbugua to lay claim to the suit property, yet they knew that he took possession thereof in 1993 and they did not take any action for more than 14 years. Mbugua had openly, legally, and lawfully put up the petrol station and the respondents never lodged any claim against him. That in view of Mbugua’s quiet occupation of the suit property, he became the lawful owner by virtue of adverse possession under the Limitations of Actions Act. Regarding the 3rd respondent, they averred that it had issued lawful and legitimate titles to Mbugua and that in the event that the court found that the respondents' title preceded the appellants’, then the respondents should seek appropriate compensation from the 3rd respondent. By way of counterclaim, they sought a declaration that they were the lawful owners of the suit property by virtue of adverse possession; and that the 3rd respondent be ordered to issue fresh leases or titles to them. They also counterclaimed against the 3rd respondent for compensation for the loss of the suit property.
4.The 3rd respondent filed a statement of defence, denying each and every allegation of fact or law contained in the amended plaint and claimed to be a total stranger to some of the averments in the plaint. He stated nonetheless that the title issued to the respondents could only have been issued in strict compliance with the necessary provisions of the law.
5.The ELC after a full plenary hearing of the suit, in a judgment delivered on 1st October 2018 returned the verdict in favour of the respondents as already stated.
6.Aggrieved by the judgment and decree, the appellants have now moved to this Court through a memorandum of appeal dated 20th May 2019. In the memorandum of appeal, the appellants have raised 13 grounds of appeal, which we have condensed into, inter alia, that the learned Judge erred by making a finding that the respondents had proved that they were entitled to be declared owners of the suit property; by failing to appreciate that the appellants, as the registered owners of the suit property, had their rights of ownership protected under Article 40 (b) of the Constitution and sections 27 and 28 of the Registered Land Act (repealed); by making a finding that the respondents had proved that they were the owners of the suit property which emanated from LR. No. 3543, Nairobi that allegedly belonged to the Company known as Githurai Ting’ang’a Company Limited; placing undue weight on the evidence of, the Land Registrar and failing to correctly appreciate the evidence of the appellants; failing to make a finding that even if the appellants were not the registered owners of the suit property, they had proved that they were entitled to be declared as the owners of the suit property by virtue of adverse possession; and failing to award compensation to the appellants for loss of their suit property.
7.The appeal was canvased by way of written submissions with limited oral highlights. When it came up for plenary hearing on 25th June 2024, Mr. Mbabu, learned counsel appeared for the appellants, Mr. Namada, learned counsel appeared for the respondents, and Mr. Eredi, learned counsel held brief for Ms. Fatma for the 3rd respondent respectively.
8.Mr. Mbabu submitted that the prominent issue in this appeal was who between the appellants and respondents held a legitimate title to the suit property. This is because both parties held their own set of titles, which they claimed to be legitimate. While relying on the case of Munyumaina vs. Hiram Gathihamaina, Civil Appeal No. 239 of 2009, counsel submitted that the learned Judge erred by making a finding that the respondents had proved their case on the balance of probabilities when the root of title was under challenge and when in fact, the evidence that was adduced proved that the appellants title was legitimate as opposed to that of the respondents, which was a forgery on account of want of supporting documents such as searches, records, receipts or correspondence from the 3rd respondent’s office. That the respondents alleged in their pleadings that the root of their title emanated from a company known as Githurai Ting’ang’a Company Limited that held the mother title to plot number LR. No. 3543 Nairobi. That in order to tender believable evidence of the root of their title the respondents were obliged to produce in court the alleged mother title LR. No. 3543 and or documents surrendering the mother title to the 3rd respondent. No such evidence was tendered.
9.Further, there was contradiction in the evidence of the respondents and the 3rd respondent’s witness, Silas Kogera Mburugu, a Principal Land Registrar, as to the source of the respondents’ title. That whereas the 1st and 2nd respondents contended that their title emanated from LR. No. 3543, but the evidence of the 3rd respondent was that the title was from LR. No. 5964/2, which severely dented the respondents' claim. The only documents the respondents produced in court to support their claim were an undated Certificate of Ownership and Letters of Allotment dated 26th November 1993, which bore LR. No. 3543, yet the evidence on record demonstrated that the appellants’ titles emanated from the sub-division of LR. No. 5964/2. According to the 3rd respondent's own documents, it indicates Jokiland Service Station, which is owned by the 1st appellant was located on Plot No. LR. 5964/2. In the circumstances, the ELC ought to have made a finding that there was no nexus between the Titles held by the respondents and Githurai Ting’ang’a Company Ltd.
10.The other evidence of the illegitimacy of the respondents’ titles is the total lack of receipts to support the alleged registration of leases or payment of stamp duty to the collector of stamp duty or payment of any such fees or any correspondence, whatsoever. That there cannot be any legitimacy of titles without payment of the requisite fees and other payments to the Government of Kenya. That in the absence of evidence of payment, the respondents’ titles ought to have been regarded as forgeries, illegitimate, and of no consequence whatsoever.
11.Relying on the case of Vijay Moriaria vs. Nansingh Madhusingh Darbar & Another [2000] eKLR, the appellants submitted that during the trial, there was no iota of evidence that was adduced by any of the respondents, that Mbugua was guilty of fraud or misrepresentation in the process of acquiring the suit property. No such evidence was adduced. The allegations of handing over titles to the deceased and the alleged threats by the deceased with a gun made by the respondents sounded more of a fairytale than evidence worth consideration by the Court. That it was impossible for the court to determine the authenticity of the respondents’ titles without the production of the parcel file. Counsel submitted that the learned Judge ought to have treated the respondents' documents with a lot of caution and regarded them as suspect and not worthy of belief in the premises.
12.Relying on the cases of Independent Electoral and Boundaries Commission & Anor vs. Stephen Mutinda Mule & 3 Others [2014] eKLR and Adetoun Oladeji (NIG) l Limited vs. Nigeria Breweries Plc SC 91/2002, counsel submitted that the learned Judge ought to have disregarded the evidence of the 3rd respondent that tended to contradict his pleadings. Parties ought not to probate and reprobate at the same time. That the ELC failed to address the substance of the appellants’ counterclaim and dismissed it without analysis of evidence. That due to the 3rd respondent’s own admission of acts of omission and commission, his estate was entitled to compensation from the 3rd respondent of Kshs 50,000,000 being the value of the suit property and a loss of business in the sum of Kshs.6,000,000 per year from the date of the cancellation of the title to date. That as far as the claim of adverse possession was concerned it was admitted by the respondents that the deceased had been in continuous and uninterrupted occupation of the suit property in a manner that was adverse to the respondents’ title since the year 1994. Therefore, by the time the respondents filed the suit in the year 2008, the deceased and his family had been in occupation of the suit property for a period of 14 years which clearly meets the threshold under section 7 of the Limitations of Actions Act.
13.On their part, the respondents submitted while relying on the cases of Athi Highway Developers Limited vs. West End Butchery Limited & 6 Others [2015] eKLR and Urmilla w/o Mahendra Shah vs. Barclays Bank International Bank Ltd & Another (1979) KLR 76, that it is trite that section 26 of the Registered Land Act is meant to protect the real title holders from unscrupulous persons whose intention is to benefit where they have not sown. The appellants had not demonstrated that the suit property was procured through fraud. That in any event, the title held by the appellants came way after the respondents had their titles processed through the land-buying company. That it was important to underscore Githurai Ting’ang’a Company was a land-buying company, which would buy land and allocate to its members according to shares held by the members and process the title deeds for members. That whereas the respondents were members, Mbugua was not. That only members were entitled to acquire title either directly or by a third party through a member of the company. That the evidence demonstrated that in the processing of titles, it was a company that compiled the necessary records identifying the members entitled to the various pieces or parcels of land and then submitted the list and register to the Ministry of Lands for the Ministry to start processing the individual member’s requisite titles. That is the process which led to the issuance of the title of the suit property to the respondents. Counsel submitted that the respondents were able to demonstrate that the alleged agreement between John Ngugi Kimani and Mbugua was a forgery and an attempt to justify an illegal acquisition of the suit property from them. There was no evidence in the entire proceedings to show that Mbugua conducted any due diligence before allegedly purchasing the suit property. Counsel submitted that of critical importance was that there were letters from the Ministry of Lands recalling the appellant’s titles and indicating that they were illegally and wrongfully issued by misrepresentation and illegal means.
14.The evidence of the Land Registrar clearly confirmed that Mbugua’s title was illegal and should not have been issued in the first place. It was submitted that when it came to the root of the title held by the appellants, the Government itself, through the Land officers, had confirmed that those titles were illegal.
15.On adverse possession, counsel submitted that one cannot claim ownership of the suit by virtue of a valid title and at the same time claim adverse possession. That those defences are mutually exclusive. Adverse possession presupposes that the claimant acknowledges the title of the other party only that he has been allowed occupation and use of the land for more than 12 years without the owners’ consent. That in this case, therefore, Mbugua could not plead adverse possession but most importantly evidence shows that throughout the dispute, there were efforts by respondents to get Mbugua out of the suit property but he used brute force and threats to keep the respondents at bay. Counsel relied on the case of Robert Shume & 3 others vs. Samson Kazungu Kalarna [2015] eKLR, in asserting that the appellants’ claim to the suit property on account of adverse possession was frivolous and vexatious as no evidence of adverse possession was led in that regard.
16.Mr. Eredi, on the other hand fully associated himself with the submissions of counsel for the 1st and 2nd respondents and also fully relied on the submissions prepared by his colleague, Fatma Ali. In her submissions, Fatma reiterated that though Article 40 of the Constitution provides for the protection of the right to property, Article 40 (6) however, provides that such protection does not extend to any property that has been illegally acquired. Counsel submitted that the titles that were first in time should take precedence over others. For this proposition, counsel relied on the case of Munyua Maina vs. Hiram Gathiha Maina [2013] eKLR. That from the evidence on record the appellants’ title was issued in the year 2005 while that of the respondents was issued in the year 1995. That in this case, the ELC correctly addressed the issue of the title, scrutinized all the processes and procedures that brought forth the two titles, and was satisfied that the respondents’ title was valid as opposed to that of Mbugua. That the appellants had failed to prove how they got their title starting with its root or origin. That it was the evidence of the managing director of Githurai Ting’ang’a Company Limited, that Mbugua was not a member of the company and cannot therefore have a legitimate root of title. For all these reasons, the 3rd respondent urged that the appeal be dismissed with costs for want of merit.
17.This is a first appeal. In terms of rule 29(1) of this Court’s Rules, and from a long line of judicial decisions, we are expected, indeed to re-assess the entire evidence tendered in the trial court and make our own independent findings. This is so because an appeal from the High Court to this Court is always by way of a retrial, hence we are not bound necessarily to follow the findings of the trial court. However, it should always be appreciated that it did not see nor hear the witnesses and should make due allowance in that respect. See Peters vs. Sunday Post Ltd [1958] EA 424; Selle and Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Mwangi vs. Wambugu [1984] KLR 453.
18.From the record and the submissions by the parties presented before us, the issues that arise for our determination are two, which of the two sets of titles held by both parties is valid and whether the appellants’ assertion of adverse possession is sustainable.
19.We entirely agree with the submissions of the respondents that though Article 40 of the Constitution provides for the protection of the right to property, such protection does not extend to any property that has been illegally acquired. We also agree with the submissions by the respondents that section 26 of the Land Act is meant to protect the real title holders from unscrupulous persons whose intention is to benefit where they have not sown. From the evidence on record, nowhere have the appellants impugned the respondents’ title on account of fraud or any other illegality. On the other hand, the respondents have accused Mbugua of obtaining title to the suit property fraudulently, which fact they were able to prove satisfactorily. First, Mbugua was not a member of Githurai Ting’ang’a Company Limited, a land-buying company, whose sole objective was to buy land and share it out to its members. It would then process the titles on behalf of its members. Should, however, a member wish to transfer his share to a third party who is a non- member, he will have to involve the company in the transaction. In this case, much as Mbugua, a third party claimed to have purchased the suit property from one, John Ngugi Kimani, whom we doubt was a member and even if he was, there is no evidence that the company was involved in the dealings. Indeed, the then Managing Director of the company was categorical in his testimony that the company was not aware of the dealings and was not involved at all in the transaction. It is obvious that as the custodian of the company’s records, if such transaction ever took place he will be in the know. He was also categorical that it was the company and not individual members that would process the titles before handing them over to its members or third parties. This evidence was corroborated in material particulars by the evidence of the Principal Land Registrar. Indeed, the witness confirmed that the title of the respondents was first in priority, that Mbugua’s title had been superimposed on the respondents’ title. Of critical importance was his testimony that there were letters from the Ministry of Lands recalling the appellants’ title on the basis that it was illegally and wrongfully issued through misrepresentation and should not have been issued in the first place. The company and the officials from the lands office having not been involved in the processing of Mbugua’s title as required, its authenticity is in doubt. The respondents’ root or mother title can easily be traced to the transactions of Githurai Ting’ang’a Company Limited as opposed to Mbugua’s. As stated by the Supreme Court of Kenya in Dina Management Limited vs. County Government Mombasa & 5 Others [2023] eKLR, once it is established that the process prior to the issuance of the title was unlawful, irregular and or not followed, such title is not only not indefeasible, but also invalid, illegal and cannot pass an interest in land to another person. The court went on to observe that the protection offered to a bona fide purchaser for value without notice does not apply where the property was obtained irregularly or illegally. To our mind, this is exactly what Mbugua did. His alleged acquisition of the suit property is shrouded in mystery. The allegations by the owners of the suit property that when they went to Mbugua to reclaim the same, they were threatened with death and a gun pointed at them is not far-fetched. We doubt those old men would conjure up such a fanciful storyline.
20.It is also not lost on us that though the appellants claimed that Mbugua purchased the suit property from John Ngugi Kimani, that evidence was seriously dented by the evidence of the appellants, the Githurai Ting’ang’a Company Limited officers, and officers from the lands office. This was in particular with regard to the parcels involved and the origin of their mother title. It is instructive that despite the opaqueness of Mbugua’s transaction, the appellants did not see the need to call the alleged vendor, John Ngugi Kimani to testify and shed light on the matter. This omission can only be held against the appellants.
21.The appellants raised the issue that the authenticity of the respondents’ title could only be proved or resolved by the production of the parcel file in respect of the suit property. In our view, this assertion is neither here nor there. We are aware that the parcel file is merely a file where documents relating to a parcel of land are kept in accordance with section 7(1) (c) of the Land Registration Act. On the other hand, the white card is the record kept for the leasehold properties while the green card is the record kept for freehold properties. The appellants did not at the hearing apply for production of any of them. They cannot now be heard lamenting their non-production. They also challenged the legitimacy of the respondents’ title on the basis that there was no documentary evidence such as receipts evidencing payments to the Government of the dues on account of stamp duty, registration fees etc. However, as demonstrated by the respondents, the processing of the titles was undertaken by the company on behalf of its members. Most likely, therefore, those payments were made by the company. Further, at the trial, the appellants did not put that question to the 3rd respondent.
22.The appellants claimed that the suit property was purchased by Mbugua from John Ngugi Kimani at a consideration, and he was thus, an innocent purchaser for value without notice. For this defence to hold, this Court in several decisions, inter alia, Elizabeth Wambui Githinji & 29 Others vs. Kenya Urban Roads Authority & 4 Others [2019] eKLR and Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura vs. Attorney General & 4 Others [2017] eKLR, has developed the following strictures to be satisfied before a conclusion can be drawn that the purchaser is an innocent purchaser for value and without notice: “........ for a purchaser to successfully rely on the bona fide doctrine, (he) must prove that: a) he holds a certificate of title; b) he purchased the property in good faith; c) he had no knowledge of the fraud; d) he purchased for valuable consideration; e) the vendors had apparent valid title; f) he purchased without notice of any fraud; g) he was not party to any fraud.” A bona fide purchaser of a legal estate without notice has an absolute, unqualified, and answerable defence against a claim of any prior equitable owner.
23.From the record, however, we do not discern the purchase of the suit property by Mr. Mbugua. The evidence tendered by the appellants did not demonstrate that indeed there was a sale of the suit property from one party to the other. The alleged agreement for sale as Counsel for the 1st and 2nd respondents correctly submitted was a forgery and an attempt to justify an illegal acquisition of the suit property from them. Further, given what we have already stated and the facts of the case, we are persuaded that the respondents’ version of how they came by the suit property makes more sense than Mbugua's. In a nutshell, we are satisfied just like the trial court that Mbugua was not a bona fide purchaser of the suit property for value and without notice.
24.It is also common ground that the respondents’ title rank in priority to that of Mbugua. We are aware that titles that are first in time take precedence over others. See the case of Munyua Maina vs. Hiram Gathiha Maina (supra). From the evidence on record, the appellants’ title was issued in the year 2005, while that of the respondents was issued in the year 1995. So that even if for argument’s sake we were to hold that Mbugua’s title was genuine, he could not surmount this doctrine.
25.As to adverse possession, we hasten to say that the claim stands on quicksand. The appellants’ case was that Mbugua had purchased the suit property. That being the case, his entry into and possession of the suit property could not have been adverse to the title owner. This right to be adverse on the land does not automatically accrue unless the person in whose right it has accrued takes action. In the case of Mtana Lewa vs. Kahindi Ngala Mwagandi [2015] eKLR, this Court held:Even if this Court was to think otherwise and consider this defence, the appellants’ mode of entry was as a result of a purported sale agreement, which means it was a permissive one. It is trite that claim of adverse possession to suffice, the claimant must demonstrate that the same was non-permissive and non-consensual and without license. See Mombasa Teachers Co-operative Savings & Credit Society Limited vs. Robert Muhambi Katana & 15 Others [2018] eKLR. The appellants’ occupation having been permissive, it will follow that a claim for adverse possession may not accrue. If we may ask a rhetorical question. Mbugua’s entry into the suit property having been permissive, at what time did it become adverse so that time starts running for purposes of adverse possession? Further, there is evidence by the respondents that their efforts to get rid Mbugua off the suit property were met with violence. These acts in themselves had the effect of stopping time from running for purposes of adverse possession. Finally, no cogent evidence on this aspect was led by the appellants. All in all, we are satisfied that the appellants by invoking the doctrine of adverse possession were only clutching on the straws so that they may not sink.
26.Having said as much, we are satisfied that the judgment and decree of the ELC was sound and within the law and we uphold it. In essence then, the appeal is devoid of merit and is accordingly dismissed with costs to the respondents.
DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER 2024.ASIKE-MAKHANDIA................................... JUDGE OF APPEALS. ole KANTAI................................... JUDGE OF APPEALALI-ARONI................................... JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR