Kimani & 4 others v Sigona Jua Kali Association & 4 others

the ndings of the trial court simply because it would have reached dierent results if it was hearing the case for the rst time – Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123. 2. The original suit was led in the Environment and Land Court (‘ELC’) in Nairobi by Sigona Jua Kali Association (the 1st respondent) against Kikuyu Town Council (this later becamea sub county of the County Government of Kiambu – the 2nd respondent), the Land Control Board, Kiambu (the 3rd respondent), the Registrar of Lands (the 4th respondent), the Attorney General (the 5th respondent), Jane Wangechi Kimani (the 1st appellant) Grace Wambui Kamuiru (the 2nd appellant), Grace Wanjiru Mbugua (the 3rd appellant) Joseph Kibiru Wachira (the 4th appellant), and John Mutua Kamene (the 5th appellant). The suit was later transferred to ELC, Thika. It was claimed in the plaint by the 1st respondent that it was a society registered under the Societies Act; that it applied to the defunct Kikuyu Town Council and had been allotted a plot known as Sigona/934 (‘the suit property’) vide minutes dated 15th January, 2001; that the allotted suit property was to be sub-divided to accommodate the 1st respondent, utility land for Kikuyu Town Council and provisional administration oces as per the said minutes; that the allotted suit property was to be subdivided to accommodate the 1st respondent, utility land for Kikuyu Town Council and provisional administration oces as per the said minutes; that: “ …the Plainti’s claim and right to the suit property is contained in or evidenced by or to be inferred from the 1st Defendant’s minutes of works, town planning and markets committee meeting held on 15th January, 2001 conrming that the suit premises were indeed allocated to the Plainti. The said minutes were therefore a clearance and/or allotment.” 3. It was further claimed in the plaint that the 1st respondent had ascertained that the appellants and other respondents had fraudulently transferred the suit property rstly to the 1st, 2nd and 3rd appellants and subsequently to the 4th and 5th appellants without the 1st respondent’s approval or consent. Particulars of fraud by all those parties were set out in the plaint and the 1st respondent prayed for a permanent injunction to restrain all those parties from trespassing on, constructing, transferring or disposing of the said suit property pending the hearing and determination of the suit; a declaration that the 1st respondent was the benecial owner of the suit property; cancellation of certicate of title issued on 30th April, 2002 “to date”; eviction of the appellants from the suit property; an order directed to the 2nd and 3rd respondents to facilitate registration of the suit property to the 1st respondent; mesne prots and costs of the suit. 4. The 1st appellant (Jane Wangechi Kimani) delivered a defence in which she claimed that the suit was res-judicata having been the subject of Kikuyu PMCC No. 53 of 2004; the 1st respondent’s claims were denied; that the suit property was non-existent as it had been subdivided in 2002 into various plots; that she had acquired title to the suit property, had subdivided it and had transferred plots to the 2nd to 4th appellants and therefore the suit should be dismissed. 5. The 2nd, 3rd and 4th respondents denied the claim in a defence by the Attorney General who took a preliminary objection that the suit oended the provisions of the Government Proceedings Act and the suit should be dismissed with costs. The other appellants did not le defences to the suit but a preliminary objection was taken by the 1st and 5th appellants through their lawyers M/s Muhuhu & Co. Advocates to the eect that the suit property was non-existent having been subdivided into parcels Nos. Sigona 935 to 965; that the suit was time-barred under the Limitation of Actions Act; that the suit was res-judicata and that the 1st respondent had no right of audience for failure to pay costs in an earlier dismissed suit. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 2

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6. When the hearing commenced before Mbugua, J. John Kamau Ndere, who described himself as the secretary of the 1st respondent testied that the 1st respondent was allocated the suit property by the defunct Kikuyu Town Council; that the suit property was previously government land; that he had minutes from the Kikuyu Town Council evidencing that the 1st respondent had been allocated the suit proeprty. He further testied that the suit property had been fraudulently transferred and then subdivided into parcels Nos. 935-965; that the suit property had resulted from a previous parcel No. 832 which had been 0.55 hectare which acreage had been altered to be 1.55 hectares; that the suit property had been given to the 1st respondent on 5th September, 2010. 7. Challenged in cross examination the witness admitted that the minutes he had produced from Kikuyu Town Council as evidence in the case did not have parcel number. The 1st respondent’s case was then closed. 8. John Matheka, a Land Registrar at Kiambu Land Registry testied that his oce had placed a restriction on the suit property after the Commissioner of Lands raised issues regarding ownership of the same. He did not have the green card for the suit property and was not in a position to explain its history, but he conrmed that there was a cancellation in parcel number 832 whose acreage had been altered from 0.55 hectare to 1.55 hectare; that according to records from survey department the suit property had not been sub-divided. According to him title number 832 changed to parcel numbers 930-934 on 4th March, 2002. He further told the court that the suit property belonged to the 1st appellant and there was no fraud by any party involving the same. He denied that the suit property had ever belonged to Kikuyu Town Council stating that it all along had belonged to the government. 9. The 1st appellant testied that she had become the owner of the suit property in 2002 and had sold it to the other appellants. According to her the suit property was a subdivision from an parcel No. 41 which was about 25 acres and bordered a railway line. 10. That was the case made before the Judge by opposite sides and in a judgment delivered on 2nd May, 2019 the Judge found that the suit property did not belong to the 1st appellant or the 1st respondent, that it was government land and any alienation of the same ought to have been through the laid down mechanisms available at that time. The Judge found that the suit property should not have been lumped up with parcel No. 832 and therefore gave orders that the registration of the suit property in the 1st appellant’s name was illegal, unprocedural and was through corrupt schemes; that alienation of the suit property leading to subdivisions running from 935-965 was unlawful; an order was issued that the green card of parcel number 832 reverts to its original format bearing acreage of 0.55 hectare in the name of the 1st appellant; all titles forming the series Sigona No.935-965 and any further titles arising out of subsequent subdivisions were declared to be null and void and were cancelled and were to revert back to parcel no. Sigona 934 measuring 0.970 hectare and upon such reversion the suit property was to be categorized as public land under Article 62 (1)(d) ofthe Constitution of Kenya; survey records be amended to reect the change if at all such records had been aected by the alienation of the suit property into parcels 935- 965; the 1st respondent was to be at liberty to pursue its claim after the said reversion in line with provisions of Article 62(4) ofthe Constitution; the Deputy Registrar of the court was authorized to sign all requisite documents to give eect to the judgment and, nally, each party was ordered to bear their own costs. 11. The appellants led a Notice of Appeal against the whole decision. 12. There are 19 grounds of appeal in a Memorandum of Appeal drawn for the appellants by their lawyers M/s Muhuhu & Co. Advocates. The rst ground of appeal is a curious one – that the Judge erred in law and fact in failing to nd that “…the Respondent/Original Plainti” has not proven its case on a https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 3

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balance of probabilities.” We say that it is a curious ground because we have not seen any appeal by the 1st respondent (Sigona Jua Kali Association). 13. The Judge is also faulted for not nding that the 1st respondent had no locus standi or identity to sue; that the Judge erred in law and fact in failing to nd that the original parcel No. Sigona/934 was no longer in existence at the time of ling the suit; that the Judge should have found that the suit was time barred as title for the suit property had been issued in 1997 and sub-divisions had been carried out in 2002; that the Judge should have found the suit res-judicata in view of Kikuyu PMCC No. 53 of 2004; that the Judge should have found the appellants absolute owners of their parcels of lands; that no fraud was proved so as to lead to cancellation of titles; that the Judge erred in law and fact in disregarding evidence by the appellants, that of the Land Registrar and evidence of Kikuyu Town Council; that the Judge erred in law and fact in making orders in favour of Commissioner of Lands who was not a party in the suit; that the Judge should have addressed the issue of “excluded owners of the sub-divided parcels”, and, nally that the Judge erred in law and fact in ordering costs be paid by the “respondent.” This is also curious ground rstly because the “respondent” is not complaining but, secondly, as we have seen in this judgment the Judge ordered each party to meet their own costs. 14. When the appeal came up for hearing before us on 24th June, 2024, learned counsel Mr. Angaya appeared for the appellants; learned counsel Mr. Mugu appeared for the 1st respondent, while learned counsel Miss Mwalozi appeared for the 3rd, 4th and 5th respondents. We were satised that the 2nd respondent who was absent had been served with a hearing notice for the day through its advocates M/ s Kibatia & Co. Advocates, we allowed the appeal to proceed to hearing its absence notwithstanding. The parties present had lled written submissions which they fully relied on. 15. The appellants state in written submissions that the 1st appellant was the owner of the suit property which she subdivided and sold to the other appellants; that the 1st respondent had no legal claim to the suit property; that the suit property was not government land. On locus it is submitted for the appellants that the 1st respondent did not prove that he had locus to bring their claim and the suit should have been dismissed. 16. The appellants further submitted that the Judge should not have ordered cancellation of the title to the suit property when the 1st respondent had not proved its case. The appellants contend that the suit property did not exist when the suit was led as it had been sub-divided giving rise to parcel Nos.935-965 and they fault the Judge for not dealing with this issue as a preliminary one in the suit and also the preliminary point taken that the suit was time-barred. The appellants also submit that the Judge should have found the suit as res-judicata in view of a previous suit. 17. The appellants submitted further, that the Land Registrar who testied in court conrmed that there was no irregularity or fraud involving the suit property or the subdivisions which followed and they say: “ …No iota of proof was presented to show that any fraud was committed in the issuance of the titles and the trial court neither visited the site in order to verify the 1st appellant’s allegations nor did the land.” 18. The appellants submit that it was wrong for the Judge to have proceeded with the case and made ndings without the surveyor of the area being called to testify; that it was wrong to make orders in favour of Commissioner of Lands who was not a party in the case. It was nally submitted by the appellants that the Judge should have faulted the 1st respondent for not joining all aected parties to the suit case. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 4

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19. In written submissions the 1st respondent attacks the propriety of the appeal questioning why the appellants have named the other respondents (apart from itself) who were defendants in the suit at ELC. The 1st respondent submits that it is wrong for the appellants to do so stating that the Judge did not award the suit property to the 1st respondent but left it (the 1st respondent) free to pursue a claim through the Commissioner of Lands. 20. The 1st respondent submitted that the Judge was wrong to hold that it had no interest in the suit property submitting that it was in the process of pursuing its claim through Kikuyu County Council and had a right to protect public land from being irregularly acquired. The 1st respondent supports the Judge for questioning how the acreage of the suit land could be more than the mother title. The 1st respondent further submitted that title to the suit property issued to the 1st appellant was subject to challenge if it had been irregularly acquired. 21. It is submitted by the Attorney General on behalf of that oce and other respondents that the suit property was as a result of subdivision of Sigona/832 which measured 0.55 hectare but the actual size of the parcel Sigona/832 was not clear as it appeared to have been cancelled and altered to be 1.55 hectare, the Land Registrar had told the court that he was not aware of the position on the ground as it is the surveyor who could give that information; that Sigona/832 had been subdivided to create Sigona/930 and Sigona/934, the later (suit property) measures 0.97 hectare and this could not be because the original title measured 0.55 hectare. It is submitted by the Attorney General that when a title is challenged it is upon the person claiming ownership to prove that he lawfully obtained it. The Supreme Court of Kenya case of Dina Management Limited vs. County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] is cited in support of that proposition. Also cited is the case of Chemey Investment Limited vs. Attorney General & 2 Others [2018] eKLR on the issue of fate of titles which are obtained fraudulently where the following passage appears: “ …The eect of all those decisions is that sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense.” 22. It is submitted further, that the appellants have not proved the legality of their titles; that they have not shown the mechanism employed to acquire the suit property under the Government Land Act (repealed), the Land Planning Act (repealed), or the Physical Planning Act. It is nally submitted by the Attorney General that the Judge erred in making ndings and orders aecting parties who were not parties in the suit and that the judgment could not be enforced. 23. We have considered the whole record, submissions made, and the law. 24. It was the 1st appellant’s case before ELC evidence before the Judge that she had legally acquired the suit property in 2002 but that the 1st respondent had attempted to evict her from the same prompting her to le a case at the Kikuyu Magistrate’s Court being PMCC No. 53 of 2004 which was determined in her favour; that she thereafter sub-divided the suit property to parcel Nos. Sigona 930 to 965 which parcels she had sold and transferred to the 2nd to 4th appellants. That the title was challenged by the 1st respondent which claimed the suit property on the basis that it stated had been allocated to it by the defunct Town Council of Kikuyu. The Land 25. Registrar, Kiambu, was called and testied that ownership of the suit property or the resulting subdivisions had been challenged but his oce had failed to place a caution on the suit property despite being required to do so by the Commissioner of Lands. The 1st appellant was not able to give the history of the land before her alleged acquisition in 2002 and the Land Registrar, asked to give that history but stated that only the department of survey could do so. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 5

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26. It is now settled law that once a title to land is challenged it is not enough for a registered proprietor to wave the title as evidence of ownership; one must go to the root of the title to show that it was legally and procedurally acquired. 27. This is what the Supreme Court of Kenya stated on the issue of legality of title in Dina Management Limited (supra): 28. 93. As held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 [2013] eKLR, where the registered proprietor’s root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership. It is the instrument that is in challenge and therefore the registered proprietor must go beyond the instrument and prove the legality of the title and show that the acquisition was legal, formal and free from any encumbrance including interests which would not be noted in the register. 94. To establish whether the appellant is a bona de purchaser for value therefore, we must rst go to the root of the title, right from the rst allotment, as this is the bone of contention in this matter.” In Chemey Investment Limited (supra) this Court had this to say on the same issue: Decisions abound where courts in this land have consistently declined to recognise and protect title to land, which has been obtained illegally or fraudulently, merely because a person is entered in the register as proprietor. See for example Niaz Mohamed Jan Mohamed v Commissioner for Lands & 4 Others [1996] eKLR; Funzi Island Development Ltd & 2 Others v County Council of Kwale (supra); Republic v Minister for Transport & Communications & 5 Others ex parte Waa Ship Garbage Collectors & 15 Others KLR (E&L) 1, 563; John Peter Mureithi & 2 Others v Attorney General & 4 Others [2006] eKLR; Kenya National Highway Authority v Shalien Masood Mughal & 5 Others (2017) eKLR; Arthi Highway Developers Limited v West End Butchery Limited & 6 Others [2015] eKLR: Munyu Maina v Hiram Gathiha Maina [2013] eKLR and Milan Kumarn Shah & Others v City Council of Nairobi & Others, HCCC No. 1024 of 2005. 29. The eect of all those decisions is that sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at public expense.” 30. Statutory underpinning of that position is to be found in section 26 of the Land Registration Act which provides: 26. (1) The certicate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate, and the title of that proprietor shall not be subject to challenge, excepta. on the ground of fraud or misrepresentation to which the person is proved to be a party; or https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 6

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b. (2) 31. where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme. A certied copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.” Section 80 of the said Act provides: 80. (1) Subject to subsection (2), the court may order the rectication of the register by directing that any registration be cancelled or amended if it is satised that any registration was obtained, made or omitted by fraud or mistake. (2) The register shall not be rectied to aect the title of a proprietor who is in possession and had acquired the land, lease or charge for valuable consideration, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectication is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.” 32. The Judge found that a private individual in the pre-constitution of the Constitution period could acquire land through an adjudication process under the Land Acquisition Act or the Land Consolidation Act which would lead to the crystallization of rights and interests in land through registration under the Registration of Lands Act (repealed). 33. There was also a process through the Trust Land Act where the former County Councils which held land for residents of an area could set apart land and allocate to individuals. 34. The Judge analysed the evidence particularly by the 1st appellant and the Land Registrar on the acquisition of the land by the 1st appellant and the Judge found telltale signs; and that the creation of the suit property shrouded in mystery. The 1st appellant claimed to have inherited the suit property from her late husband but there was no evidence to support that claim because no evidence was availed to show that the suit property was ever part of parcel No. 41 originally owned by the 1st appellant’s husband. The Land Registrar was unable to produce records for parcel 832 and of the suit property yet he was the custodian of those records being the keeper of the parcel le where all records pertaining to land in the area were kept. The Land Registrar was unable to explain how or why the acreage of parcel No. 832 which was initially 0.55 hectare was cancelled or altered to read 1.55 hectare. Neither the 1st appellant nor the Land Registrar could explain how parcel No. 832 which was 0.55 hectare could yield a larger parcel (the suit property) which was 0.970 hectare. This is what led the Judge to conclude: …There is no rocket science herein. It is plainly clear that there was illegality in creation of parcel 934 which was far much bigger than the mother parcel no.832. It is also not lost to this court that no one appears to know what became of parcels no.930-933. This information is crucial in determining the circumstances under which parcel no 832 came to be cancelled…” 35. The Judge observed at paragraph 55 of the judgment: 55. The land registrar has stated that registration of land is the last step in land acquisition. However, such acquisition must emanate from somewhere. The Land registrar has stated that mutation of subdivisions emanate from the https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 7

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oce of the surveyor who is also responsible for giving the numbers. Plainti has availed a letter, item no. 26 which is from the director of survey to the Commissioner of Lands and it reads as follows; Re; Sigona 934 (NOW SIGONA 935-965) Refer to your letter ref No. 209163/A/121 Dated 8.3.2010. This is to conrm to you that parcel No. Sigona/934 has not been subdivided, the same is still intact from our map (Sigona sheet no 3)”.” 36. We agree with the Judge that if the sub-divisions emanating from the suit property had been lawfully done as alleged by the Land Registrar records at the survey department would have been in tandem with records at the registry of lands. It was also surprising in the premises where important questions on land ownership had been raised not just by the 1st respondent but also by the Commissioner of Lands that the Land Registrar, whose duty it was to manage and safeguard records on land ownership in his area, had failed to register a caution against the title which had been presented by the 1st respondent and also as directed by the said Commissioner. On this, the Judge found that the reason for such failure was that the Land Registrar “were the master minds of the fraud. This fraud was so well orchestrated that only the fraudsters knew what was happening…” 37. The Judge also considered another important aspect which related to the speed at which the suit property was alienated. The whole process of subdivision, creation of mutation forms, obtaining consent of Land Control Board and registration of subdivisions to new titles had taken a record of 6 days, something the Judge found to be: …a whirl of feverish activity in a rush to dispose o the land no.934. It is therefore a fallacy for the land registrar to claim that there was no dispute, no fraud and no other claims on the suit land save the claim of 5th defendant….” We agree with these ndings. 38. It was not practically possible for the suit property to have an acreage larger than the parcel from which it was “born”; it was not possible for its acreage to be larger than the mother title. There was no allegation on any merger of lands before 2002 when the 1st appellant claimed to have acquired title to the suit property. There was mystery surrounding how the 1st appellant allegedly acquired the suit property and it is not lost on us that there were allegations by the 1st respondent that senior government ocials including ocers at the Ministry of Lands had conspired to create a title to the suit property and were beneciaries of the resultant subdivisions. The Judge found, and we agree, that registration of the suit property to the 1st appellant was illegal, un-procedural and it was through corrupt schemes. 39. That nding should dispose of this appeal but the appellants have taken other issues in Memorandum of Appeal and in their written submissions which we will now address, albeit briey as they are peripheral issues to the appeal. 40. The appellants submit that the Judge was wrong to make ndings in the case when the suit property had been sub-divided into other parcels of land and transferred to other parties. The short answer to that question is the holding by the Supreme Court in Dina Management Limited (supra) and other cases to the eect that root of title must support the claim by the registered owner of land on the propriety of such ownership when the same is challenged. The root of the title to the suit property was challenged, it in fact could not be traced at all and was shrouded in mystery, as we have shown. The https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 8

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resultant titles that emanated from the suit property had no root, they had no standing, they stood on quicksand, and they must go with the winds. 41. On the preliminary objections taken by the appellants, these were properly dealt with by the Judge. The parties had agreed by consent that the preliminary points be taken at the hearing of the case. One of those points was whether the Judge could deal with the case when the suit property had already been subdivided. We have just dealt with this issue and there is no need to repeat ourselves on it. 42. On whether the suit was res-judicata, it was not. The suit by the 1st appellant in the subordinate court in Kikuyu prayed for injunction. The defendants in that suit led a claim where they claimed ownership of the land. The magistrate correctly found that he had no jurisdiction to deal with an issue relating to ownership of the land, holding that it was the High Court that had jurisdiction to deal with the issue. There was no determination by the subordinate court. The 1st respondent then led the case at ELC. So the suit was not res-judicata at all as the question had not been heard or determined on merits at all. 43. On the point taken by the appellants that the suit was barred by Limitation of Actions Act, it was not apparent on the pleadings whether that was true or not. The appellants did not pursue that point and cannot now do so in this appeal. Whether or not the law of limitation applied was not apparent on the pleadings. As was Company Limited vs. West End Distributors Limited [1969] EA 696: …a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or a plea of limitation or a submission that the parties are bound by a contract giving rise to the suit to refer the dispute to arbitration.” 44. On whether or not the 1st appellant was a society within the meaning of the Societies Act this issue was not pursued before ELC and it is wrong to raise it on appeal as there is no material on which we can make a determination. 45. The appellants complain that the Judge made orders in favour of Commissioner of Lands who was not a party to the suit. 46. The court made those orders after analysing the evidence which concluded that the suit property was public land which had been acquired without following laid down procedure leading to an illegal title. The suit property being pubic land properly reverted to the Commissioner of Lands after the title in favour of the 1st appellant was impeached. We nd no error in that determination by the Judge at all. 47. Then there is the issue, supported by the Attorney General (in submissions) that orders were made against parties who were not parties in the suit and that the judgment was not implementable. 48. The suit led in the ELC was against parties who were served with Summons to Enter Appearance and they all appeared and participated in the suit. There was no evidence that any party was excluded from the suit. Evidence by the 1st appellant was to the eect that she had subdivided the suit property and had transferred the subdivisions to the 2nd to 4th appellants. There is no basis for this complaint by the appellants and the Attorney General. 49. We nd no merit in this appeal which we dismiss. We think in the circumstances on the issue of costs that each party meets its own. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024. ASIKE-MAKHANDIA https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 9

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………………………… JUDGE OF APPEAL S. ole KANTAI ………………………… JUDGE OF APPEAL ALI - ARONI ………………………… JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1938/eng@2024-12-20 10

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