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JudgmentTERESA MUTHONI MWANIKI VS LUCY NJOKI MWANGI13 min read

TERESA MUTHONI MWANIKI VS LUCY NJOKI MWANGI

Environment and Land Court at Nyeri Environment and Land Court · · MUGO KAMAU, J


JUDGMENT:

  1. Before the court for determination is a suit filed vide Plaint dated 16th February 2015, in which the Plaintiff averred that the suit property LR. GITHI/IGANA/973 is registered in the joint names of the Plaintiff and Defendant, which registration was effected on the 7th of December 2006. Before this registration, the Plaintiff was the sole registered proprietor of the suit property.
  2. The Plaintiff claims that this joint registration as proprietors of the suit land with the Defendant was done through misrepresentation and deceit and that she was unaware of what she was doing.
  3. The events leading up to the joint registration were that the Defendant had supplied grocery goods on credit to the Plaintiff valued at about Ksh.20,000/= pursuant to which the Defendant misrepresented to the Plaintiff that she wanted the debt secured by the Plaintiff’s Title Deed for the parcel of land. That the Defendant misrepresented to the Plaintiff that the Title Deed would only be security and told her to sign documents, which apparently related to joint ownership of the suit land, hence taking advantage of the Plaintiff’s illiteracy.
  4. The Plaintiff has been in occupation of the suit parcel and the Defendant has been cultivating a portion thereof until December 2014, when the Plaintiff demanded rent, and that is when the Defendant revealed to her that she is the joint owner of the suit land.
  5. Upon demanding the cancellation of the unlawful joint registration, the Plaintiff was threatened by the Defendant and the registration still remains joint.
  6. The Plaintiff prays for the following orders:
  7. A declaration that the joint registration of the Defendant as a co-proprietor of L.R GITHI/IGANA/973 with the Plaintiff was/is unlawful, be cancelled and reverts to the Plaintiff as the sole proprietor.
  8. A permanent injunction restraining the Defendant from interfering with the Plaintiff’s quiet enjoyment of the land.
  9. Costs of the suit.
  10. Any other or better relief.

The Defendant’s statement of defence.

  1. The Defendant filed a statement of Defence dated 25th February 2015, denying the Plaintiff’s claim, stating that the Plaintiff was a protégé and that she was cognizant of the whole land transaction exercise.

Summary of the hearing proceedings

  1. The hearing began on 23.11.2016, where PW 1, Teresa Muthoni Mwaniki, the Plaintiff testified, adopting her witness statement dated 16th February 2015 and accompanying bundle of documents as evidence.
  2. In her statement, the Plaintiff reiterated the contents of her Plaint and stated that she believed the Title to the suit property is with the Defendant as she has looked for it and found it was missing from her house and has never seen it again. She insisted that she did not know any documents she signed would involve joint registration of the suit plot with the Defendant, who she only owed Kshs.20,000/= for shop goods supplied on credit. That the Defendant has been threatening the Plaintiff and has been using force to enter and cultivate the land after refusing to have the parcel revert to her.
  3. The Plaintiff further denied that the Defendant used to contribute church money on her behalf, as she contributed her donation personally to the church and does so to date.
  4. She produced a copy of the official search to the suit property and the demand letter addressed to the Defendant dated 19th January 2014 as exhibits before the Court.
  5. Upon cross-examination, the Plaintiff stated that she was taken by the Defendant to an office she did not know while she was on her way to the hospital.
  6. She denied signing any transfer forms and she later learnt that the office she was taken to was the Land Control Board. She was also not certain whether the Defendant removed the Title Deed from her house and she only learned of the joint ownership after the Defendant started cultivating her land. This was the close of the Plaintiff’s case.
  7. DW 1 Lucy Njoki Mwangi, the Defendant herein gave her testimony and stated that the Plaintiff came to her when she had a lot of problems and she offered to help the Plaintiff in buying food, treatment and clothes. That the Plaintiff initially paid her for these services, but later on stopped.
  8. The Defendant stated that in the year 2006, after the Plaintiff stopped paying the Defendant for the expenses and owed her a lot of money she offered to transfer her parcel of land to the Defendant as payment. They obtained consent of the Land Control Board sitting at Mukurwe-ini to have the land registered in their joint names.
  9. The Defendant’s evidence is that it is not true that the Plaintiff was coerced into signing the documents, that she signed to be registered as a co-owner willingly when she was in her right mind. She also testified that the Plaintiff does not have any child to inherit land from her.
  10. Upon cross-examination, the Defendant confirmed that she has the current possession of the Plaintiff’s Title Deed. When asked about the amount the Plaintiff owed her, the Defendant stated that the Plaintiff told her not to bother calculating the same and chose to gift her the land instead. She did not have records of what the Plaintiff owed her.
  11. The Defendant stated that the Plaintiff chased her away from the suit land in the year 2015 and she does not know who has been assisting her since then.
  12. DW 2 Newton Muchemi Kariuki stated that he is a farmer from Gitugi location and that he knows both parties herein. At the time he was a member of the Land Control Board at Mukurweini, that the Plaintiff brought the Defendant to him, wishing to transfer her entire land to the Defendant. The Plaintiff complied and signed all the requisite documents.
  13. On cross-examination, DW 2 denied having memory of whether the Plaintiff signed the documents with her signature or thumb print. He also noted that the first time the Plaintiff appeared before the Land Control Board, her brother protested and the Board declined to sign the consent. The second time, the Plaintiff did not appear with any relatives and consent was given. DW 2 stated that the reason the Plaintiff gave in to the transfer was that the Defendant had assisted her greatly.
  14. DW 3 Florence Waruguru also gave her statement and stated that she knew the Defendant as a friend and a neighbour and that she also knows the Plaintiff as a neighbour.
  15. DW 3 stated that the Plaintiff and Defendant were friends and that the Defendant would sometimes give her money to pay tithe on behalf of the Plaintiff as well as church contributions. She also knew that the Defendant was cultivating on the Plaintiff’s land but she did not know about any other arrangement between them.
  16. On cross-examination, DW 3 stated that the Defendant is not a member of their church and was only contributing on the Plaintiff’s part. That was the close of the Defence case.

Plaintiff’s Written Submissions

  1. Counsel for the Plaintiff submitted that the source of the Plaintiff’s tribulations was the purchase of shop goods worth Ksh.20,000/= on credit from the Defendant, secured by the Plaintiff’s Title.
  2. Noting that the Plaintiff is illiterate, Counsel stated that the Defendant took the Plaintiff to Mukurweini and had her sign the transfer, believing it was just security for the credit facilities in the year 2014.
  3. Counsel’s submission was that shop goods worth Ksh.20,000/= cannot suffice to be consideration for land and this is evidence of fraud.
  4. The fact that the Plaintiff is illiterate and had to rely on the Defendant to tell her what she was signing for is also highlighted as evidence of trickery. It was submitted that it is doubtful whether the consent to transfer was signed, noting that the Defendant still has the land ownership documents.
  5. The Plaintiff’s counsel relied on the doctrine of non-est factum, that the signing of the transfer was “not her act” as she was misled into surrendering her Title Deed, believing it was only to secure goods taken on credit and submitted that the act is legally void, praying that her case be allowed as prayed.

The Defendant’s written submissions

  1. Counsel for the Defendant submitted that the suit property came to be registered in joint names by the parties by consent and that the Plaintiff’s allegations that she was not cognizant of the whole exercise was based on falsehood and misrepresentation submitting that the amount owed to the Defendant by the Plaintiff was colossal, and that it was the Plaintiff who suggested that they should have joint ownership of the suit property.
  2. It was submitted that the parties then proceeded to attend the Land Control Board at Mukurwe-ini and obtained consent for the joint ownership without coercion, duress and/or undue influence as she appended her thumb print.
  3. It is therefore the Defendant’s submission that on a balance of probabilities and standard of proof, there is veracity as pertains to the mutual relationship between the Defendant and Plaintiff at the time of joint registration of the suit land and the Plaintiff is merely concealing material particulars and prayed that the court find in the Defendant’s favour and allow status quo to prevail.

Analysis and Determination

  1. This is a suit where the Plaintiff claims that she was misrepresented and defrauded by the Defendant into signing documents for joint ownership of the suit property, LR. GITHI/IGANA/973, which she was the sole registered proprietor of previously, on the pretext that she was only signing documents to secure shop goods worth Ksh.20,000/= on credit.
  2. On the other hand, the Defendant argues that the Plaintiff owed her a lot more money than that, and that the Plaintiff willingly offered joint ownership of the suit land to her as repayment for the debt owed. That they attended the Land Control Board together with the requisite documents, signed by the Plaintiff willingly and without coercion, to obtain the Board’s consent and register the joint ownership.
  3. This Court notes with a lot of concern that the documentary evidence is quite scanty, leaving a lot of issues unconfirmed. The only documents exhibited as evidence before the Court are a copy of the certificate of official search on LR GITHI/IGANA/973 dated 15th of January 2015 and the letter of demand to the Defendant dated 19th January 2014 by the Plaintiff. The Defendant claims to have a copy of the joint Title Deed to the suit property, which was not mentioned by any of the Defence witnesses.
  4. The Certificate of official search indicates that the suit property was indeed jointly registered in the names of the parties herein on 7th December 2006 and that the Title Deed  was issued, which the Plaintiff stated that she is not in possession of.
  5. Under the law, transferring land into joint ownership, such as joint tenancy or tenancy in common, involves a transfer instrument and registration with the relevant land registry. Joint tenancy means that when one owner dies, their share automatically passes to the surviving owner(s). In tenancy in common, each owner holds a distinct share that can be transferred or inherited independently. In this case, the land is registered as a joint tenancy.
  6. The parties have not exhibited any documents indicating that they undertook a transfer. There are no copies of transfer documents on record, neither is the consent from the Land Control Board on record and more importantly, there is no agreement between the parties exhibited that led to the joint ownership presented before this court.
  7. The Land Registration Act provides at Section 26 that:

“The certificate 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 certificate, and the Title of that proprietor shall not be subject to challenge, except—

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) where the certificate of Title  has been acquired illegally, unprocedurally or through a corrupt scheme.”

  1. The Plaintiff alleges that the Defendant misrepresented to her that she was only providing her certificate of Title as security for goods that were sold to her by the Defendant on credit worth Ksh.20,000/=.
  2. The Defendant alleges that the Plaintiff owed her money that she lent to her for food, treatment, clothing, church contributions and such and that she did not keep a record of the amount owed to her because the Plaintiff told her not to because she was going to give her a share of her land to own jointly with her.
  3. All this puts this Court in a precarious situation as there is nothing to indicate what the parties are saying is true. We shall therefore look at the scanty evidence and facts of the case in order to determine the same on a balance of probabilities.
  4. Since there is no executed agreement and no copies of transfer documents on record, this court can only assume that there was fraud involved in the joint registration including the Defendant. The Defendant also bears a burden of proving her allegations that the joint registration was done lawfully.
  5. The Court of Appeal in Mumbi M'Nabea v David M.Wachira [2016] eKLR stated as follows while commenting on burden of proof in the Kenyan context and noted that:

“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not, Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:-

“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

The above provision provides for the legal burden of proof. However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:-

“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi  &  Others  v.  Blue  Shield  Insurance  Company  Limited  -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:-

“Whereas under section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, section 109 of the same Act recognizes that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”

  1. I am in agreement with the above precedent that the burden of proof lies on the person who wishes the Court to believe its existence. Similarly, the Court of Appeal in Mbuthia Macharia v Annah Mutua Ndwiga & another [2017] eKLR discussed the burden of proof as follows:

“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift to the party who would fail without further evidence? In this case, the incidence of both the legal and evidential burden was with the appellant. It was upon the appellant to prove that he did not affix his signature on the transfer of the suit premises in favour of the 1st Respondent. “

  1. The Court notes that conferring registered interest in land is not a simple matter of taking someone to the lands office and acquiring the same. There is usually a written agreement involved, signed by both parties and two witnesses as per Section 3 of the Law of Contract Act, unless the same is acquired by transmission upon death or was a gift, which has not arisen nor been proved in this case.
  2. I therefore find that while the Plaintiff bears a burden to prove her case, the Defendant bears a corresponding burden to disprove the Plaintiff’s allegations. The Defendant failed to discharge her evidentiary burden of proof in rebuttal of the Plaintiff’s allegations, therefore her acquisition of the Title to the suit land is questionable and should stand revoked. The mere fact that the Plaintiff may have owed her monies does not mean that she is entitled to a share of the Plaintiff’s land as there are other ways to settle a debt. If the Plaintiff wished to settle the debt by giving the Defendant a share of the suit land, then she would have executed an agreement that indicated so.
  3. The court thus finds in favour of the Plaintiff’s case on a balance of probabilities in the following terms:
  4. A declaration do issue that the joint registration of the Defendant as joint proprietor of LR. GITHI/IGANA/973 with the Plaintiff was/is unlawful. The joint registration is to be cancelled and the Title to the same reverts back to the Plaintiff as the sole proprietor.
  5. A permanent injunction is issued by this court, restraining the Defendant from interfering with the Plaintiff’s quiet possession of the suit land viz. LR. GITHI/IGANA/973
  6. There shall be no orders as to costs.

Judgment signed and delivered at Nyeri this 25th Day of July, 2025.

MUGO KAMAU

JUDGE


    TERESA MUTHONI MWANIKI VS LUCY NJOKI MWANGI TERESA MUTHONI MWANIKI VS LUCY NJOKI MWANGI