Hello Mahakamani News, Kindly, is there any way you can assist us to get justice. I have been frustrated at the ODPP office. Kindly assist us to get through to Mr. Noordin Haji. We will appreciate immensely.
The matter was reported under police inquiry file no 5/2012 at Kitui police station. It involved forgery of the signature of Ngulungu Kitheka Ngao by Alexander Matuvi. A CID forensic document examiner acknowledged the forgery as well as the court in Machakos land case no elc no 2/2019.
A complaint was registered at the ODPP office in Nairobi after officers were compromised at Kitui and Machakos offices. To date the matter is still pending at the ODPP office. It has been more than seven years now.
The son of the Alexander Matuvi works in that office thus the matter appears to have been compromised hence the need to write to you about the injustice. We have tried to seek audience with Mr Haji to no success. Kindly assist if u can.
Background of the Email
According to Environment and Land Appeal 2 of 2018 involving Ngulungu Kitheka and Alexander Matuvi. The appellant, Mr. Ngulungu Kitheka was displeased by the Judgment of Principal Magistrate B.M Kimemia in Kitui PMCC No. 311 of 2004 where by the learned Magistrate found that Alexander Matuvi had proved his counter-claim for ownership of a contested piece of land “on a balance of probabilities”.
According to the Memorandum of appeal, Mr Ngulungu argues that the learned Magistrate had erred by failing to declare that a handwritten agreement produced before the court was forged and also that no evidence whatsoever was present to show that the suit land was jointly purchased by Mr Ngulungu and Mr Matuvi.
Mr Ngulungu further claimed that the Judgment was not conclusive as it failed to appreciate him as the registered proprietor of the suit land and therefore he was entitled to the land as there was no basis for the learned Magistrate to have inferred a trust in favor of Mr. Matuvi. [The Principal Magistrate declared that a constructive trust existed whereby Mr. Matuvi was to use the land and occupy it]
Mahakamani News Investigations
Intricacies of this dispute reveal that in 1975 Mr Ngulungu claims to have bought a land registered as Matiyani/Mutulu/475 from a Mwangale Kunde. Whereas, on January 1988, Mr. Matuvi unlawfully trespassed on the said land.
However, Mr. Matuvi deposes that in 1974 jointly with his elder brother Mr Ngulungu they bought parcels number 475 and 476 which were then registered under Mr. Ngulungu therefore creating a resulting trust.
Mr Ngulungu produced a sale agreement as evidence to be relied on by court . To prove ownership he also stated that he used the land to secure a loan from Agricultural Finance Corporation (AFC) of which he completed repaying in 1991.
Further, Mr Ngulungu said that the land had been subject to a dispute between him and his mother where the court in Civil Case No. 320 of 1995 decided the matter in his favour. He denied jointly buying the two suit properties with Mr Matuvi asserting that in 1984 he bought the other parcel number 476 from Ubia Kithuku and that Mr. Matuvi was a mere witness to the contract. To his knowledge, Mr. Matuvi only owned land number 421, a different piece of land. Nonetheless, he acknowledges that Mr Matuvi had been utilizing both parcel number 475/476 [ that Mr Matuvi had built his house on land parcel 475 and had been cultivating it since 1998]
On his part, Mr Matuvi refuted the evidence produced by Mr Ngulungu stating that in 1974 (jointly) they bought the land from one Mr. Selule. On completion of the sale, they sub-divided the land it into two such that Mr Ngulungu took land number 476 while he took parcel number 475. As evidence, Mr Matuvi produced an agreement purportedly drafted by himself. The agreement stated that the two had agreed to share the land equally.
In determining ownership of the land, the trial Magistrate took note that the register for specific parcel of land known as Matinyani/Matulu/475 was opened on September 5, 1979 and that the title deed was registered in favour of Mr. Ngulungu on August 23, 1980. According to the adjudication record, the land was initially owned by Mr. Mwanga Syelunde before the records were changed to reflect Mr. Ngulungu’s name on January 21, 1975.
However, the trial Magistrate contested the sale agreement produced by Mr. Ngulungu for the purchase of parcel 476 vide an Agreement dated August 5, 1984 as it had not been translated in the language of the lower court (English and Swahili). Nonetheless, the Application for the consent of the Land Control Board which revealed that land number 476 had been transferred from one Charles Kithuku to Mr. Ngulungu in 1984 for the sum of Ksh. 10,000 and the board had consented to the transfer on October 19, 1984 sufficed as evidence. Leaving only land 475 in contest.
With this facts in place, On February 15, 2019 Hon Justice Angote of the Machakos Environment and Land Case still dismissed the appeal and upheld the decision of the lower court.
The learned Judge assessed the evidence freshly and concluded that the handwritten agreement produced by Mr. Matuvi (whereby the two brothers had agreed to share parcels 475 and 476) had been forged by the fact that in 1974, the parcel of land number 476 was still in the name of Charles Kithuku and it was not until 1984 that it was changed to Mr Ngulungu. Furthermore, parcel land number 475 was still in the name of Mwanga Syendule in 1974 and it was not until June 16, 1975 that the Land Adjudication Officer consented transfer of the land to Mr Ngulungu.
However, the court dismissed Mr Ngulungu case ruling that since he had allowed Mr Matuvi to occupy and live on parcel number 475 since 1975, a constructive trust had been created and Mr. Matuvi would continue to utilise the land.
As defined in Macharia Mwangi Maina & 87 others vs. Davidson Mwangi Kagiri (2014) eKLR, a constructive trust is based on common intention whereby there is an existence of agreement, arrangement or understanding actually reached between the parties and relied on and acted upon by the claimant.
Accordingly, in the courts eyes a constructive trust had been created by the foregoing that Mr Ngulungu allowed Mr Matuvi to live in parcel number 475 since 1975 and without any interference. Moreover, such a scenario indicates that a common intention existed between the two brothers. This intention created a constructive trust: an equitable concept which acts on the conscience of the legal owner to prevent him from acting in an unconscionable manner by defeating a common intention.
So Why does Mr Ngulungu want the ODPP to be involved in the battle?
The issue raised by Mr Ngulungu is why the ODPP is yet to prosecute Mr Matuvi for making a false document with intent to defraud as contrary to Section 348 of the Penal code whereas both the trial and appellate court have already acknowledged of the forgery.
He acknowledges that Mr. Matuvi was awarded the parcel of land 475 by both the trial and appellate court. However, he wants Mr Matuvi charged for the offence of forging the documents.
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