CASE BRIEF PATRICIA MARY CLARK VERSUS GODFREY NGATA NJOROGE AND 3 OTHERS ELC NO.503 OF 2017 (FORMERLY NAIROBI ELCC NO.1313 OF 2013)

By Boaz Kaawe

1. FACTS:

1.1. The suit land was initially owned by Mumwe Investment Limited. Patricia Mary Clark (the plaintiff) bought the suit land (L.R No. Kiambu Municipality/Block III/112) from Mumwe Investment Limited at a price of K shs 750,000 by a sale agreement dated 22nd February 1994 and a 99 year lease certificate was issued to her.

1.2. In the year 2010, Patricia Mary Clark found building stones placed on the suit land. She later discovered upon inquiry that the suit land was registered in the names of Samuel Kuntai Tunai, the 2 defendant who had placed the building stones on the suit land with the intention of doing construction thereon.

1.3. When an official search was carried out at the Kiambu land registry, Patricia (the plaintiff) realised that the suit land was in the name of the 1st defendant, Godfrey Njoroge. According to the green card, the suit land was first registered in the name of Mumwe Investment before the transfer to Patrica Mary Clark in 1994.

1.4. On the on the 26th June 1995, Patricia Mary Clark transferred the suit land to Godfrey Njoroge (1st defendant) who subsequently sold it to Samuel Kuntai (2nd defendant) on 19th February 2010 thereby Patricia Mary Clark was dispossessed of it.

1.5. She reported the matter to the criminal investigations department, Gigiri for action and the land registrar, Kiambu entered a restriction on the suit land on the 6th April 2010 pending the results of investigations.

1.6. The plaintiff (Patricia Mary Clark) filed this suit on the 1st November 2013 against the defendants jointly and severally after she had on the 26th September 2013 sought findings about her complaint and was denied the outcome of her official search.

2. PLAINTIFF’S CASE;

2.1. That the defendants perpetrated fraud and obtained documents through misrepresentation and forgery by presenting to the land registry registration and transfer documents with full knowledge that they did not own the land.

2.2. That it was illegal for the registrar (3rd defendant) to effect transfer and procure title knowing that Godfrey Ngatia Njoroge (1st defendant) was not the bona fide registered owner of the suit land.

2.3. That the Land registrar was negligent not to produce certificate of release relating to the suit land and for failing to summon her to the land Registry for purposes of giving information with regard to the suit land.

2.4. That she was still in possession of the original documents to the suit land and that there was no instrument of transfer from her to Godfrey Njoroge Ngatia (1st defendant).

2.5. That Godfrey Njoroge Ngatia (1st defendant) could not have transferred a good title to Samuel Kantai (2nd defendant) for he had obtained the same by deception, fraud, misrepresentation and trickery.

2.6. That there was no instrument of transfer from her to Godfrey Ngatia Njoroge and that it was irregular for a transfer to be registered when there was no instrument of transfer from one party to the other.

2.7. That when a transfer is effected, the transferor’s document of title is supposed to be surrendered for cancellation and yet for her case she was still in possession of the original title for the suit land.

2.8. That Samuel Kantai (2nd defendant) could not be said to be an innocent purchaser for value since he had failed to call Godfrey Ngatia Njoroge as his key witness to demonstrate that he had a clean title

2.9. That section 3 of the law of contract Act was not complied with since she never signed the sale agreement disposing of the land to the Godfrey Ngatai Tunai. (1st defendant)

3. DEFENDANTS’ CASE;

3.1. That by dint of the Mirror Principle, insurance Principle and the torrens system, the government ought to guarantee all land owners indefeasibility of their title since it is the custodian of the land register.

3.2. That the plaintiff rather had a remedy in action against the state for recovery of damages as against the defendants.

3.3. That court could not order rectification of the register pursuant to section 80 of the Land Registration Act since there was no fraud on the part of 2nd defendant (Samuel Kuntai Tunia).

3.4. That the 1st defendant had good title to the suit land thus passed the same to the 2nd defendant.

3.5. That the 2nd defendant (Samuel Kuntai Tunia) falls under the category of persons protected by the doctrine of bonafide innocent purchaser for value without notice.

4. ISSUES;

4.1. Whether Godfrey Ngatia Njoroge (the 1st defendant) acquired ownership of the suit land legally?

4.2. Whether Samuel Kuntai (the 2nd defendant) got a good title for being an innocent purchaser for value without notice?

4.3. What orders would the court issue out?

4.4. Who would bear the costs of the suit?

5. LAW APPLIED;

5.1. The 2010 constitution of Kenya Article 40

5.2. Law of Contract Act section 3.

5.3. The Evidence Act Cap 80 sections 107 and 112.

5.4. Section 25, 26 and section 80 of the Land Registration Act Section 26 of the Land Registration Act.

5.5. Caselaw

6. DECISION (HOLDING);

6.1. As to whether the 1st defendant (Godfrey Ngatia Njoroge) acquired ownership of the suit land legally, yes the 1st defendant had acquired ownership of the suit land legally.

6.1.1. REASONING; it was evident that the Registrar (3rd Defendant) issued a certificate of lease in the first instance to Godfrey Ngatia Njoroge (1st defendant) without any defect at law and the entries in the register accurately reflected the ownership of the land in favour of the 1st defendant.

6.2. As to whether Samuel Kuntai Tunai (the 2nd defendant) got a good title for being an innocent purchaser for value without notice, yes the 2nd defendant got a good title of the suit land, Kiambu Municipality Block III/112

6.2.1. REASONING; Samuel Kuntai Tunai (2nd defendant) proved by way of evidence including exhibit 1 to 8 and testimony of Titus Masaba Kakewa (DW3) that he lawfully purchased the suit land and as a result, a constructive trust was created in his favour who was entitled to the suit land;

6.2.2. That the Land Registrar had issued a certificate of lease to Godfrey Ngatia Njoroge (1st defendant) and subsequently to Samuel Kuntai (2nd defendant) without any defect at law.

6.2.3. That the allegations of fraud by the plaintiff had not attained the threshold set out in the case of Ndolo-v- Ndolo (2008)1KLR (G&F) 72 and;

6.3. As to what orders the court would issue out, court held that the certificate of title issued in respect of the suit land, Kiambu Municipality Block III/112 in favour of the plaintiff be declared illegal, null and void.

6.4. Court also ordered that the certificate of Title issued in respect of the suit land, Kiambu Municipality Block III/112 in the name of the plaintiff be cancelled by the Land Registrar.

6.5. And a permanent injunction was issued retraining the plaintiff whether by herself or agents or any one acting under him from dealing, alienating, trespassing, interfering or constructing on the suit land, Kaimbu Municipality Block III/112.

6.6. As to who would bear the costs of the suit, court ordered that each party bears his/her costs of the suit.

6.6.1. REASONING; By dint of the proviso to section 27 (1) of the Civil Procedure Act (Cap 21), the decision in Samwel Kamau Macharia and another-vs- Kenya Commercial Bank Ltd and 2 others (2012) eKLR and in view of the circumstances of the instant case, it was trite that each party bore his/her own costs of this suit.