[2018] KEELC 280 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.556 OF 2017

(FORMERLY NAIROBI ELCC 354 OF 2011)

BENSON MBURU KINYAGIA.................................PLAINTIFF

VERSUS

BETH NYAMBURA KONGO.......................1ST DEFENDANT

ATTORNEY GENERAL................................2ND DEFENDANT

JUDGMENT

1. On 15th July 2011, the Plaintiff namely BENSON MBURU KINYAGIA sued the 1st and 2nd Defendants, Beth Nyambura Kongo and The Attorney General respectively by a Plaintdated 1st July 2011. He is seeking the following reliefs:-

a) A declaration directed at that District Land Registrar, Thika District, represented by the 2nd Defendant, declaring that the Plaintiff is the legal proprietor of Title Number Ruiru Township/388 and has the right to be registered as the owner of the leasehold interest comprised in Title Number Ruiru Township/388.

OR IN THE ALTERNATIVE

b) General damages for loss of property, assessed at the current value of the suit premises.

c) Costs of this suit.

d) Any further or other order as this Honourable Court may deem fit.

2. The Plaintiff is represented by Macharia Nderitu & Co. Advocates,while Mwihaki Ndudu Litigation Counsel appears for the 2nd Defendant. The 1st Defendant duly served failed to enter appearance and/or file statement of defence and she is unrepresented in this matter.

3. Briefly, the Plaintiff’s case is that he purchased the suit property, LR.No.Ruiru Township/388 from the 1st Defendant as shown on Sale Agreement dated 23rd December 2011 (PExhibit 3) and having conducted an official search as per certificate of official search dated 21st December 2009 and official receipt dated 21st December 2009 (PExhibits 4, 5). He paid land rent and rates as well as stamp duty for the suit land (PExhibits 6, 7, 9 to 11). He obtained letter of consent for transfer dated 6th January 2010 regarding the land (PExhibit 8). The Plaintiff did present a Certificate of Lease dated 22nd January 2010 between the Plaintiff and the 1st Defendant (PExhibit 14) to the Land Registrar, Thika for registration of the suit land. However, the Land Registrar refused to register PExhibit 14 and failed to give reasons for his decision hence precipitating this suit.

4. The 1st Defendant failed to enter appearance and or file a statement of defence having been served by substituted service on 20th June 2016. I note that the Plaintiff filed a request for Judgment dated 20th June 2015 against the 1st Defendant.

5. By a statement of Defence dated 16th September 2011, the 2nd Defendant denied the Plaintiff’s claim, and stated that the Plaintiff’s allegations offends the provisions of Order 2 rule 3 of the Civil Procedure Rules 2010. That the alleged rights are not available to the Plaintiff.

6. The Plaintiff (PW1) relied on his statement dated 1st July 2011 and list of documents of the even date (PExhibit 1 to 14) in his testimony. He stated in part that the Land Registrar, Thika refused to register PExhibit 14 and that he has tried to get title to the sit land in vain.

7. DW1 (Benard Kipkemoi Leitich) Land Registrar, Thika, adduced evidence and relied on his statement dated 17th July 2018 and his report dated 31st October 2018 (DExhibit 1). He testified that PExhibit 14 had not been registered as the rates clearance certificate was not attached to it and that the Government Land Valuer had cautioned him from registering PExhibit 14 without establishing the land owner. That the suit property was owned by Mary Wanjiru King’araas per documents 1 to 18 attached to DExhibit 1. He further stated that the suit property’s register was rectified under Section 79 of the Land Registration Act 2012.

8. Learned Counsel for the Plaintiff filed submissions dated 21st November 2018,wherein he framed six (6) issues for determination, among them, whether PW1 obtained valid completion documents from the 1st Defendant and whether PW1 is entitled to compensation. He cited authorities namely Munyu Maina…vs…Hiram Gathiha Maina(2013) eKLR and Samuel Kamere..vs..Lands Registrar, Kajiado (2015) eKLR.

9. Learned Counsel for the 2nd Defendant field submissions dated 26th November 2018 whereby he highlighted the reliefs sought in the Plaint, as well as the evidence of PW1 and DW1. Counsel submitted that the original lease is still in the custody of the original owner, Mary Wanjiru King’ara hence the 2nd lease to the 1st Defendant remains suspicious. That there are no documents in support of transfer of lease to the 1st Defendant by Mary Wanjiru King’ara. That PW1 is seeking to enforce rights derived from a title that was obtained by fraud.

10. Counsel further submitted that the Land Registrar cancelled PExhibits 13 and 14 as empowered by the law. Counsel relied on authorities which include;- Maina…vs…Maina case (supra), Sukhder Singh Laly..vs..Philip Ojwang Kamau & 3 Others (2018) eKLR, Section 79 of the Land Registration Act 2012, and Article 40(3) of the Constitution of Kenya, 2010.

11. I have carefully considered the Plaint, the 2nd Defendant’s statement of defence, the evidence of DW1 and submissions of Counsel for the respective parties. Having noted the decision in Great Lakes Transport Company (U) Ltd…vs…Kenya Revenue Authority (2009) KLR 720 and the Plaintiff’s list of issues dated 31st October 2017 reflected in his submissions, I find the issues for determination condensed as follows:-

a) Whether PW1 and the 1st Defendant entered into a complete valid transaction in respect of the suit property.

b) Whether the Land Registrar was empowered to decline to transfer the suit property from the 1st Defendant to PW1.

c) Whether the Plaintiff (PW1) is entitled to the reliefs sought in the Plaint.

12. On the validity of the transaction, PExhibit 3 shows that both PW1 and 1st Defendant signed it and there were two witnesses to it. PW1 secured PExhibits 5 to 12 and 14 after he had obtained certificate of official Search (PExhibit 4) and PExhibit 3.

13. The statement of PW1 was that the District Land Registrar, Thika refused to register PExhibit 14 and failed to give him reasons of his decision. He stated, inter alia:

“… I am unable to assert my rights of ownership including occupation and use or the registered owner of the land.”

14. DW1 stated that a Certificate of Lease (PExhibit 13) was issued and registered in favour of the 1st Defendant. That the suit property had been registered in the name of Mary Wanjiru King’ara and transferred to the 1st Defendant on 13th January 1992.

15. PW1 relied on letter of Consent dated 6th January 2010 (PExhibit 8), PExhibits 13 and 14 in relation to transfer of the suit property. DW1 confirmed that PW1 made an application for registration of transfer of lease in respect of the property.

16. In his testimony DW1 stated in part as follows:-

“That however, the application for the transfer was rejected because;-

i. The District Valuer had advised that during inspection for valuation there arose a controversy about ownership and therefore suggested the need for the establishment of the owner before registration.

ii. There was no rent clearance certificate attached to the documents presented for registration.

iii. The seal affixed on the Certificate of Lease surrendered alongside the documents did not correspond with the official seal of Thika Land Registration Office District. (emphasis added)

17. To fortify his testimony, DW1 prepared his report (DExhibit 1) which reads;-

“However, we do not have any transfer over the property. Further, a close examination of the original Certificate of Lease attached to the rejected transfer shows that Certificate of Lease is fake. This is because the Seal on the Certificate of Lease does not correspond with the Seal of Thika Land Registry”.

18. To the extend stated above, DW1 could not register PExhibit 14 in favour of PW1. It was maintained by DW1 that he advised PW1 accordingly.

19. On the second issue, DW1 gave reasons why he could not register PExhibit 14. He was empowered to refuse any registration as premised under Section 8(1) of the repealed Act, the Registered Land Act (Cap 300).

20. According to PW1, by PExhibit 13, the 1st Defendant was the registered proprietor of the suit property. However, in light of the three reasons contained in the testimony of DW1, including DExhibit 1, the ownership of the suit property by the 1st Defendant by the 1st Defendant remains doubtful. PExhibit 14 arose out of a transfer arising from an alleged fraudulent purchase. See Kamere Case (supra).

21. Moreover, it is trite law that when a registered proprietor’s title is under challenge, that proprietor must go an extra mile to prove the legality of how he or she acquired that title to the property. See Maina Case (supra).

22. Similarly, in the instant case, DW1 stated in DExhibit 1 that PExhibit 13 attached to PExhibit 14 was found to have been obtained by fraud thereby giving rise to a defective title; See Singh Laly Case (supra). Therefore, the Land Registrar, Thika acted within the law in his refusal to effect PExhibit 14 in favour of PW1 and cannot be held culpable.

23. Since PExhibit 3 was made between the 1st Defendant and PW1, it is not upon the Land Registrar, Thika to redress any damage that PW1 may have suffered for non-completion of PExhibit 3. Considering the entire case and being guided by the case of Koufor..vs…C. Czarnikow Ltd (1967) 3 ALL ER 686 on the principles that guide the court whether or not to award general damages in cases of such nature, I think an amount of Kshs.1,000,000/= would be appropriate in the circumstances of the case. So I would award the same.

24. The upshot is that I dismiss the Plaintiff’s claim for a declaration as sought in his Plaint. On the alternative, I enter Judgment for him against the 1st Defendant only in terms of general damages assessed at Kshs.1,000,000/= with costs of the suit.

Dated, Signed and Delivered at Thika this 29th day ofNovember 2018.

G. M. A. ONG’ONDO

JUDGE

In the presence of

Ms Nakato Learned Counsel holding brief for Mr. Nderitu for the Plaintiff

Ms Chibole Learned Counsel holding brief for Mr. Ndudu for the 2nd Defendant

Tom - Court clerk

G. M. A. ONG’ONDO

JUDGE