[2021] KEELC 4511 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. CASE NO. 74 OF 2005

(Consolidated with HCCC. No. 222 of 2008)

THE BOARD OF TRUSTEES FULL GOSPEL CHURCHES OF KENYA....PLAINTIFF/RESPONDENT

VERSUS

THE COMMISSIONER OF LANDS.....................................................................................1ST DEFENDANT

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

GOOD NEWS CHURCH OF AFRICA................................................................................3RD DEFENDANT

JUDGMENT

1. In the Plaint dated 5th August, 2005, the Plaintiff averred that by a Letter of Allotment dated 3rd February, 1994, the 1st Defendant offered to the Plaintiff a grant of unsurveyed parcel of land then referenced as Zone 47- Machakos Municipality measuring 0. 175 Ha for the purpose of putting up a church building.

2. The Plaintiff averred that the said Letter of Allotment required the Plaintiff to accept the offer within 30 days by paying Kshs. 2,880; that the Plaintiff duly accepted the said offer vide a letter dated 24th February, 1994 and that by way of a letter dated 29th June, 1995, the 1st Defendant requested the Plaintiff to pay Kshs. 900 being Conveyancing and Registration fees in respect of the suit property.

3. After paying the requisite fee, it was averred by the Plaintiff that the suit land was duly surveyed and given registration number Machakos Town Block 1/297 and that in the year 1999, a church organization by the name Good News Church of Africa wrongfully and unlawfully trespassed on the suit land upon which it filed Machakos HCCC No. 215 of 1999 against the said organization.

4. The Plaintiff averred that it withdrew the said suit after the said church organization vacated the suit land; that the 1st Defendant has to date not issued to the Plaintiff with the title document and that the 1st Defendant informed the Plaintiff that it might issue a title to an organization other than the Plaintiff.

5. The Plaintiff has prayed for the following orders in the Plaint:

a. A declaration that the Plaintiff has, legally and validly, acquired ownership of, and title to plot number Machakos Town/Block 1/297 (previously known as Zone 47 – Machakos Municipality) and measuring approximately 0. 175 Hectares, and should be registered as such owner, and issued with the appropriate title documents.

b. An order of mandatory injunction directing the Defendants to register the Plaintiff as the owner of Plot No. Machakos Town/Block 1/297 (previously known as Zone 47 – Machakos Municipality) and measuring approximately 0. 175 Hectares, and to issue the appropriate title documents to the Plaintiff.

c. Costs of the suit and interest at court rates.

6. In its Defence, the 3rd Defendant averred that it entered the suit land in the year 1999; that there is no time that the 3rd Defendant vacated the suit property and that the then Municipal Council of Machakos declined to approve the Defendants’ plans to construct a church on the suit premises.

7. Although the Defendants’ Advocates were served with a hearing notice for 17th September, 2020, they did not attend court. The matter proceeded for hearing in their absence.

8. The Plaintiff’s Bishop, PW1, informed the court that he is one of the Plaintiff’s Trustees and that this suit was consolidated with Machakos HCCC No. 222 of 2008.

9. It was the evidence of PW1 that by a Letter of Allotment dated 3rd February, 1994, the Government, through the Commissioner of Lands, and on behalf of Machakos Municipal Council, offered to the Plaintiff an unsurveyed plot then known as Plot Zone 7 within Machakos Municipality measuring 0. 175 Ha.

10. According to PW1, the Plaintiff was required to accept the said offer within 30 days which it did by making a payment of Kshs. 2,880 to the government and that it was issued with a receipt for the said amount.

11. PW1 informed the court that by way of a letter dated 29th June, 1995, the 1st Defendant demanded for Kshs. 900 being additional fees for conveyancing and registration; that the Plaintiff paid the said sum and that when the 3rd Defendant trespassed on the suit property in 1999, the Plaintiff sued the 3rd Defendant in Machakos HCCC No. 215 of 1999.

12. It was the evidence of PW1 that the Plaintiff sued the 1st and 2nd Defendants in this suit (ELC No. 74 of 2005)after the 1st Defendant refused to issue it with title document for the suit property and that when the Defendant in ELC No. 222 of 2008 tried to re-enter the suit property in the year 2008, the Plaintiff sued it in ELC No. 222 of 2008. PW1 produced several documents in evidence which I shall refer to later.

13. In her submissions, the Plaintiff’s Advocate submitted that the Plaintiff’s evidence was not in any way challenged and/or rebutted by the Defence and that the prayers in the two Plaints should be allowed.

14. The evidence before this court shows that vide a Letter of Allotment dated 3rd February, 1994, the Plaintiff was issued with unsurveyed site for a church (Zone 47) Machakos Municipality by the Commissioner of Lands, the 1st Defendant.

15. The Letter of Allotment required the Plaintiff to make a payment of Kshs. 2,880 within 30 days, which the Plaintiff did vide its letter dated 24th February, 1994 and a bankers cheque number 086060 of Standard Chartered Bank for Kshs. 2,880. The copy of the cheque and the forwarding letter were produced in evidence by PW1.

16. PW1 also produced in evidence a letter dated 29th June, 1995 in which the Ministry of Lands informed the Plaintiff to pay an additional sum of Kshs. 900 being conveyancing and registration fees, which it did vide a bankers cheque dated 29th June, 1995. Despite making the said payments, and requesting the 1st Defendant to issue it with a title document, the 1st Defendant has never complied.

17. The Defendants did not testify in this matter. Indeed, the Defendants did not controvert the Plaintiff’s testimony that it was allocated the suit property vide a Letter of Allotment and made the requisite payments within the requisite 30 days.

18. That being the case, it is my finding that the Plaintiff has proved its case on a balance of probability in both Machakos ELC No. 74 of 2005 and ELC No. 222 of 2008. The Plaintiff’s suits are allowed as follows:

a. A declaration be and is hereby issued that the Plaintiff has, legally and validly, acquired ownership of, and title to plot number Machakos Town/Block 1/297 (previously known as Zone 47 - Machakos Municipality) and measuring approximately 0. 175 Hectares, and should be registered as such owner, and issued with the appropriate title documents.

b. An order of mandatory injunction be and is hereby issued directing the Defendants to register the Plaintiff as the owner of Plot No. Machakos Town/Block 1/297 (previously known as Zone 47 – Machakos Municipality) and measuring approximately 0. 175 Hectares, and to issue the appropriate title documents to the Plaintiff.

c. Each party to bear its/his own costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF JANUARY, 2021.

O.A. ANGOTE

JUDGE