Case Brief: Joseph Kagunya -vs- Boniface K. Mulli & 3 others [2018] eKLR

By Quincy Jesse Kiptoo LL.B. (Hons), CPM, Dip in Law

Joseph Kagunya -vs- Boniface K. Mulli & 3 others [2018] eKLR

Judgment Written by Gitumbi and delivered by Justice Eboso

On 10^th February 1992, Joseph was alloted Plot No. 277 Jamhuri Phase II now known as Nairobi/Block 63/301. He was alloted the land by the by the Nairobi City Commission, now the Nairobi City County Upon allotment, he paid the stand premium, ground rent, survey fees and part of the conveyance fees. In 2002, he laid a foundation for a house on the suit property but was not able to put up a building.

A person called Charles came out of nowhere and illegally and fraudulently got himself registered as the owner of the suit property. Charles transferred the property to Boniface who took possession of the property and built structures.

Joseph rushed to Court and sued Charles, Nairobi City County, Boniface and the registrar of lands alleging fraud in the divestment of his property without following due process.

Boniface entered appearance and denied all illegality. He averred that he bought property from the original allottee, Charles on 27^th August 2002. After purchase, he was registered as the owner of the suit property on 3^rd September, 2002

Nairobi City County entered appearance and stated that they learnt from Joseph about the alleged fraudulent appropriation of the suit property otherwise its records still bear out Joseph as the rightful allottee of the suit property.

Nairobi City County further averred that it was also a victim of the alleged fraud respecting the property and generally the “Jamhuri allocations” which fraud was orchestrated by third parties such as Boniface in collusion with certain criminal elements within its employment. It therefore recognized Joseph’s title.

Charles entered appearance and stated that he was allocated the property by the Nairobi City County after which the Lands Registrar issued him with a Certificate of Title.

He denied all the particulars of fraud listed in the Further Further Amended Plaint.  He added that the allocation and subsequent registration was legal and Joseph lacks locus standi to challenge the same.

He stated that by virtue of being the registered proprietor of the property, he proceeded to sell the same to the Boniface on 27^th August 2002. As a result, he currently has no proprietary interest in the property. He concluded by averring that his registration as the proprietor of the property was a first registration which neither the Joseph nor the Court could challenge with a view to rectify or nullify

The issues that crystallized before the Court were as follows; Who is the rightful owner? Whether to issue an order for rectification? Whether to issue a permanent injunction?

The Court in its analysis noted that both Joseph and Charles went to great lengths to convince this court that they are the lawful owners of the suit property

On his part, Joseph produced in evidence: Letter of allotment from 1992, receipts evidencing payment of stand premium and annual ground rent, receipts of payment of survey fees, a beacon certificate, evidence of payment of conveyancing fees.

None of the Defendants successfully challenged the validity of any of these documents

On the other hand, Boniface bought the suit property from the original allottee, one Charles Wanduto on or about 27^th August 2002. He however did not produce any evidence to prove that the said Charles Wanduto was indeed the original allottee of the property. He was issued with a Certificate of Lease to the suit property on 3^rd September 2002. Boniface added that he took immediate possession of the suit property and has already put up a two-storey building which is occupied by tenants

He did not explain to the court how he met Charles. He further failed to convince the court that he did any search of the suit property. In place of a search, he stated that his lawyer is the one who conducted the search and told him that the results were positive. The purported search results were not produced before the court.

There were many pointers to the fact that the transaction for the purchase of the suit property between Boniface and Charles was suspect.

The Court noted that Boniface may be the holder of a Certificate of Lease in respect of the suit property but failed to convince the Court that he was indeed an innocent purchaser for value without notice.

In the suit, it was alleged by Joseph that Boniface’s Certificate of Lease was acquired illegally and unprocedurally. The Court sought reliance from the following observation of the court in the case of Daudi Kiptugen -vs- Commissioner of Lands & 4 Others 2015

“In order to determine the question whether the lease held by the plaintiff is valid, it must be demonstrated that it was properly acquired. It is not enough that one waves a Lease or a Certificate of Lease and assert that he has good title by the mere possession of the Lease or Certificate of Lease. Where there is contention that a Lease or Certificate of Lease held by an individual was improperly acquired, then the holder thereof must demonstrate through evidence that the Lease or Certificate of Lease that he holds was properly acquired. The acquisition of title cannot be construed only in the end result, the process of acquisition is material. It follows that if a document of title was not acquired through the proper process, the title itself cannot be said to be a good title. If this were not the position, then all one would need to do is to manufacture a Lease or Certificate of Title at a backyard or the corner of a dingy street and by virtue thereof claim to the rightful proprietor of the land indicated therein. It is therefore necessary for this court to determine how the plaintiff ended up having a Lease and Certificate of Lease in his name and further determine if the Government did intend to issue the plaintiff with a Lease over the suit land.”

Boniface did not appear to have done a search with Nairobi County because if he did, he would have come to know that the suit property had already been allotted to the Joseph.

No evidence was produced by Boniface that the Letter of Allotment issued by Nairobi City County to Joseph in respect of the property was ever cancelled or was invalid in any way.

The failure of the Boniface to ascertain the true owner of the suit property prior to purchasing the same from Charles was a failure in undertaking the due diligence required of him. Had he conducted that search in the records of the Nairobi City County, he would have found out that Charles was not the rightful owner of the suit property. He proceeded to deal with Charles and even the transaction with the Charles was riddled with inconsistencies.

The signature of the Charles in the Sale Agreement differs with his signature on the Lease. Even the Boniface himself denied the purported signature on the Transfer of Lease that he produced. Neither Charles nor Boniface obtained the consent of the Nairobi County to transfer the suit property.

Boniface proceeded to construct a storey building on the suit property without obtaining approval of the Nairobi County to his architectural drawings.

The whole scenario painted a picture that Boniface was aware that the transaction was not above board and by virtue thereof Boniface was clearly not an innocent purchaser for value without notice.

The Court found that the Joseph is the rightful owner of the suit property and the Certificate of Lease held by Boniface Mwangi over the suit property is invalid and of no legal effect for the reason that it was obtained illegally and un-procedurally.

The Court found that the Plaintiff is entitled to have exclusive use and possession of the suit property to the exclusion of the Boniface. It issued an order of permanent injunction restraining the Boniface from trespassing, constructing in or in any other way whatsoever interfering with the Joseph’s possession and or ownership of the suit property.