Judges hit out at ministry over officials' involvement in questionable dealings

Court of Appeal judges have told the Ministry of Lands to establish a working system to weed out "ghosts and fraudsters".

Last Friday, Justices Roselyn Nambuye, Patrick Kiage and Kathurima M’inoti wondered how it could have been possible for a dead person to sell her land from the grave. 

“This is yet another of those cases involving shameless and egregious fraud at the Ministry of Lands. A total stranger obtains false duplicate documents of title to a property while the genuine owner has his documents of title ensconced in a safe or in some financial institution’s strong room.”

They continued: “The stranger mostly in collusion with Ministry of Land officials surreptitiously and fraudulently transfers the property to another person who may not be party to the fraud. Along the chain, an innocent party ends up suffering losses.”

This is how one of the bizarre cases started. Sometime in 1958, Mary Wanjiku Njau bought 0.23 acres of land in Dagoretti where she lived until April 9, 1998 when she died.

The woman, according to her identity card, was born in 1924.

She did not have children and therefore her sister Elizabeth Njoroge and niece Lilian Wairimu were appointed as joint administrators of her estate.

But to their shock, the land was sold off by a person who claimed to be Wanjiku Njau to Noel Mukhulo for Sh470,000.

The seller, according to court records, allegedly transferred the property using an identity card number 74203314/70, four years before Mary died.

The deceased had put a caution on the land in 1995, making it impossible for anyone to transact any business with it after learning that someone was trying to grab her land but did not know who it was.

Three months after she was buried, on July 16, 1998, Mukhulo moved to the High Court to lift the caution.

Njau’s siblings were not served or notified there was a suit and the registrar of land who had been sued did not defend the suit.

The High Court issued orders lifting the caution four months from the date the suit was filed, on November 23, 1998.

Three months later, the land had a new owner by the name Patrick Obonyo who bought it from Mukhulo at Sh650,000.

Land transfer

In 2002, Mary’s sister filed a case against the two and the AG arguing that the land was transferred through fraud.

In reply, Mukhulo told the court that he lawfully bought the land from a Wanjiku Njau and not Mary Wanjiku Njau hence her sisters had no claim or interest to the land. 

Obonyo explained he bought the property from Mukhulo after seeing a sale advert in the dailies on August 13, 2003.

He then took a loan from Standard Chartered Bank using the same as security. He subsequently developed it to be his home and also built some rental houses.

The Attorney General, who had been sued on behalf of Lands ministry, also opposed the suit through an affidavit sworn by senior registrar of titles Jane Wanjiru Ndiba, saying the transactions were above board. 

The court found that there was fraud but held that Obonyo would not lose his rights to the land as section 143(2) of Registered Land Act prohibits rectification of the register where a proprietor is in possession of land s/he bought without knowledge there was fraud involved.

Instead, they ruled that the family should be compensated by the Government for the loss.