[2023] KEELC 18550 (KLR)

Bond Street Properties Limited v Soli Limited & 4 others (Environment & Land Case E077 of 2021) [2023] KEELC 18550 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEELC 18550 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case E077 of 2021

MAO Odeny, J

July 6, 2023

Between

Bond Street Properties Limited

Plaintiff

and

Soli Limited

1st Defendant

Director, Land Adjudication and Settlement

2nd Defendant

The Hon. Attorney General

3rd Defendant

The Chief Land Registrar

4th Defendant

The Chief Land Registration Officer, Kilifi

5th Defendant

Judgment

1. By a Plaint dated 8th September 2021 the Plaintiff herein sued the Defendants seeking the following orders;a.A declaration that the plaintiff is the absolute registered proprietor of the freehold interest in Title Number Kilifi/Jimba/346 and is entitled to quiet possession without any reference from anyone else claiming or acting through the defendants.b.A declaration that the allocation of Title Number Kilifi/Jimba/346 by the director of adjudication and settlement, the 2nd defendant herein, to the settlement fund trustees was null and void ab initio and ineffectual to confer any right, interest or title upon the settlement fund trustees in the first instance thereby rendering the subsequent transfers null and void.c.An order of rectification of the land register by cancellation of the entry made by the Chief Land Registration Officer Kilifi, the 5th defendant herein over Title Number Kilifi/Jimba/346 on the 24th day of November, 2016 in favour of the settlement fund trustees and Soli Limited.d.An order for permanent injunction against the defendants by themselves, their agents, servants or assigns restraining them from leasing, transferring, charging, entering upon, developing, or in any other manner howsoever from dealing with Title Number Kilifi/ Jimba/346. e.Costs of and incidental to the suit.f.Any other relief that the court may deem fit and just to grant.

2. It is the Plaintiff’s case that on or about 23rd May 2008 as a bona fide purchaser for value without notice and after complying with all conveyancing protocols, it purchased Title Number Kilifi/Jimba/346 measuring approximately 1. 2 Ha from Paul Kiiru Mwangi at a consideration of Kshs. 3,000,000/- and a transfer was duly registered at the Kilifi District Land registry and a title deed dated 23rd May 2008 was issued to the Plaintiff.

3. The 1st Defendant neither entered appearance nor filed a defence. The 2nd -5th Defendants filed a statement of defence dated 15th October 2021.

PLAINTIFF’S CASE 4. PW1 Sofia Abdullahi Chacha a director and shareholder of the Plaintiff company adopted her Witness Statement dated 9th February 2022 and produced as PEX 1-19 a bundle of documents as per the list of documents dated the same date. The following are the documents namely:a.Bond Street Properties Limited's Certificate of Incorporationb.Bond Street Properties Limited's CR 12 as at the 7th day September, 2021c.Bond Street Properties Limited's Board of Directors Resolution dated the 8th September, 2021d.Land Control Board Letter of Consent LCR No. B/ 31/08 and dated the loti' day of April, 2008 for Title No. Kilifi/Jimba/346e.Transfer of Land dated the 25th January, 2008 from Paul Kiiru Mwangi to Bond Street Properties Limited for Title Number Kilif1/Jimba/346f.Stamp Duty Declaration, Assessment & Pay-In-Slip Serial Number 0239892 dated 23rd 2008 for Title No. Kilifi/Jimba/346g.Title Deed dated the 23rd May, 2008 issued to Bond Street Properties Limited for Title Number Kilifi/Jimba/346 as at the 6th October, 2008. h.Copy of letter by T.N. Mburu, Chief Land Registrar dated 28th August, 2007 and referenced KLF/A/14/VOL.X/39 and addressed to the District Land Registrar, Kilifi in relation to Kilifi/Jimba 346, 316, 314 and 323. i.Rates Payment Receipt for the year 2021 for Title Number Kilifi/Jimba/346. j.Discharge of Charge over Title Number Kilifi/Jimba/346. k.Title Deed dated the 23rd May, 2008 issued to Bond Street Properties Limited for Title Number Kilifi/Jimba/346 as at 8th April, 2021. l.Order issued by the Hon. Lady Justice C.W. Meoli on 4th September, 2012, in Malindi High Court Petition No. 11 of 2012. m.The Affidavit of Service sworn by Binyenya Benjamin on the 9th November, 2012 in Malindi High Court Petition No. 11 of 2012n.Judgment and Decree in Denman Properties Limited, Bond Street Properties Limited, Green Lily Limited, Holborn Properties Limited, Royal Tulia Estate Limited v The Hon. Attorney General, the Commissioner of Lands, the Chief Land Registrar, the District Land Registrar, the County Government of Kilifi, the Ministerial Task Force on Land Issues in Coast Province and the Hon. Gideon M. Mung'aro (who were the Respondents and 36 Interested Parties.o.Certificate of Search No. 430/7/15 dated the 20th July, 2015 for Kilifi/Jimba/346. p.Copy of the CR 12 dated 21st August, 2021 for Soli Limited.q.Certified copy of the Green Card for Title Number Kilif1/Jimba/346. r.Certified copy of Title Deed dated the 24th November, 2016 issued to Soli Limited for Title Number Kilifi/Jimba/346. s.Decree in Malindi E & LC Judicial Review Application No. 1 of 2019 Republic vs. The National Land Commission, the Hon. Attorney General and the Chief laand Registrar and Denman Properties Lilnited, Bond Street Properties Limited and Green Lily Limited as the Ex Parte Applicants.

5. PW1 prayed that judgment be entered as per the plaint and closed her case.

6. On cross examination by Ms. Lutta counsel for the 2nd-5th Defendants, she informed the court that she had an original title deed to the suit property and that she had sued the 1st Defendant because they also have a title to the suit property. She also stated that she discovered the existence of the defendant’s titled in May 2021.

2ND TO 5TH DEFENDANTS’CASE 7. DW1 Stella Gatuiri Kinyua the Land Registrar Kilifi County adopted her Witness Statement dated 18th December 2022 and produced as DEX 1-21 a bundle of documents as per the list of documents namely:a.Green card in favour of the 1st Defendant.b.Transfer of Land in Settlement Scheme dated 24th May, 2000 to Paul Kiiru Mwangi.c.Discharge of Charge by the Settlement Fund Trustees dated 11th April, 2000. d.Title Deed of the suit property dated 24th 2000 and registered in favour of Paul Kiiru Mwangi.e.Transfer of Land dated the 25th January, 2008 from Paul Mwangi to the Plaintiff.f.Title Deed of the suit property dated 23rd May, 2008 and registered in favour of the Plaintiff.g.Land Control Board Letter of Consent dated 10th April, 2008. h.Stamp Duty Declaration, Assessment & Pay-In Slip dated 23rd May, 2008. i.Authority to Transact Kilifi /Jimba 346, 316, 314 and 323 dated 28th August, 2007 by Mrs. T.N. Mburu, the Chief Land Registrar.j.Authority to Transact Kilifi/ Jimba 312, 315, 319 and 346 dated 27th August, 2008 by Mrs. T.N. Mburu, the Chief Land Registrar.k.Application for Registration Form dated 8th April, 2021. l.Note dated 20th February 2021 from DTB's Corporate, Mombasa Branch.m.Discharge of Charge registered on 8th April, 2021,n.Green card in favour of the Plaintiff.o.Letter dated the 23rd November 2016 and referenced KLF/A/14 VOL.XXV (89) by F.I. Lubulellah for the Chief Land Registrar.p.Letter dated 21st November, 2016 and referenced DLAS/MLD/LND/16/26 by James G. Kamau the District Land Adjudication/ Settlement Officer, Malindi/Magarini Sub Counties.q.Application for Registration dated 24th November 2016. r.Discharge of Charge and Transfer Document Malindi/Jimba/346 dated 21st November, 2016 and referenced DLASO/MLD/LND/DIS/VOL.1/75. s.Transfer of Land in Settlement Scheme dated 16th November, 2016. t.Discharge of Charge and Transfer Document Malindi/Jimba/346 dated 21st November, 2016. u.Transfer of Land in Settlement Scheme for Title No. Malindi/Jimba/346 dated 16th November, 2016. v.Discharge of Charge for Title No. Malindi/Jimba/346 dated 16th November, 2016.

8. On cross examination by Mr. Binyenya counsel for the Plaintiff, DW1 stated that a title deed was issued to Paul Kiiru Mwangi on 24th May 2000 who then later transferred the suit property to the Plaintiff. Additionally, that the Plaintiff charged the suit property to Diamond Trust Bank Ltd on 6th October 2008 and was discharged on 8th April 2021. She also confirmed that she was aware of Petition No. 11 of 2012 which touched on the suit property.

PLAINTIFF’S SUBMISSIONS 9. Counsel for the plaintiff raised the following issues for determinationa.Who issues title documents and was the PlaintifPs title document issued by the Government of Kenya?b.Whether or not the Government has recalled, and/revoked the Plaintiff's title document of instituted proceedings to have the same cancelled?c.What are the consequences of double allocation of title and title procured irregularly by fraud or corruption?d.Whether or not the Plaintiff is the absolute and indefeasible owner of the suit property?e.What reliefs if at all are available to the Plaintiff?f.Who should bear the cost of this suit?

10. Counsel submitted that that the plaintiff’s title document to the suit property was issued at the Kilifi Land Registry thus the plaintiff is the registered proprietor of the suit property. That since the purchase of the suit property the plaintiff has been in possession of the suit property. Further, that title of a bona fide purchaser for value and without notice of fraud cannot be impeached.

11. Counsel relied on the case of Charles Karathe Kiarie & 2 others V Administrators of the Estate of John Wallace Mathare (Deceased) & 5 Others [2013] eKLR and submitted that the Plaintiff being the holder of title to the suit property is entitled to rely on the indefeasibility conferred by statute to protect her rights to property.

12. Counsel further relied on the cases of Eunice Grace Njambi & Another v Attorney General & 5 Others [2013] eKLR, Virenda Ramji Gudka & 3 Others v Attorney General [2104] eKLR and Republic v Kisumu District Lands Officer & Another [2010] eKLR.

13. On the issue of double allocation, counsel relied on the Court Appeal case of Richard Kipkemei Limo v Hassan Kipkemboi Ngeny 4 others [2019] eKLR where the court stated that double allocation arises when there are two or more otherwise valid certificates of title issued erroneously and in good faith by the land's office. When there is fraud, misrepresentation, deliberate mistake, irregularity or unlawfulness in the procedure for registration, double allocation does not arise.

ANALYSIS AND DETERMINATION 14. The issues for determination are as to whether the Plaintiff has proved that it is the absolute owner of the suit property, whether he has proved the root of its title, and whether it is entitled to the orders sought.

15. The 1st Defendant who also has a title in respect of the suit land unfortunately neither filed a Memorandum of Appearance nor a defence. The Plaintiff gave a detailed chronology of how it acquired the suit land with documents which were confirmed by the Kilifi Land Registrar who testified as DW1. The documents by the Plaintiff were in tandem with the parcel file at Kilifi Land Registry.

16. It confirmed that the land was adjudicated in the name of Paul Kiiru Mwangi by the Settlement Fund Trustees, who later got a discharge of charge, LCB consent, transfer of land from Paul Kiiru to the Plaintiff, stamp duty payment, payment of rates, certified copy of green card and a copy of a title deed.

17. The Plaintiff was under a duty to prove the root of its title through documentary evidence and show that there is a sequencing of the documents leading up to the issuance of title and following the laid down requirements of registration of title. This sequence should be unbroken meaning that each step must be followed and in case of a missed step there must be an explanation for the same.

18. In the case ofHubert L. Martin & 2 Others v Margaret J. Kamar & 5 Others [2016] eKLR the court held that:“…A court when faced with a case of two or more titles over the same land has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title that is to be upheld is that which conformed to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder. With the nature of case at hand, I will need to embark on investigating the chain of processes that gave rise to the two titles in issue as it is the only way I can determine which of the two titles should be upheld…”

19. The Plaintiff has demonstrated the chain of processes followed to get their title and the Land Registrar corroborated the Plaintiff’s evidence indicating that their title has a good foundation.

20. Having found that the Plaintiff has proved that the root of its title has a good foundation, it follows that it is protected by the law. Section 26 of the Land Registration Act provides;(1)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.

21. The court is empowered under Section 80 (1) of the Land Registration Act, 2012 to order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake. I therefore order for the cancellation and rectification of the entry made by the Chief Land Registration Officer Kilifi, the 5th Defendant herein over Title Number Kilifi/Jimba/346 on 24th November, 2016 in favour of the Settlement Fund Trustees and Soli Limited.

22. I have considered the pleadings, the evidence and submission by counsel and find that the Plaintiff has proved his case against the Defendants and is therefore entitled to the orders sought.

23. I therefore grant the following specific orders;a.A declaration is hereby issued that the plaintiff is the absolute registered proprietor of the freehold interest in Title Number Kilifi/Jimba/346 and is entitled to quiet possession without any reference from anyone else claiming or acting through the defendants.b.A declaration is hereby issued that the allocation of Title Number Kilifi/Jimba/346 by the Director of Adjudication and Settlement, the 2nd defendant herein, to the settlement fund trustees was null and void ab initio and ineffectual to confer any right, interest or title upon the settlement fund trustees in the first instance thereby rendering the subsequent transfers null and void.c.An order is hereby issued for rectification of the land register by cancellation of the entry made by the Chief Land Registration Officer Kilifi, the 5th defendant herein over Title Number Kilifi/Jimba/346 on 24th November, 2016 in favour of the Settlement Fund Trustees and Soli Limited.d.An order for permanent injunction is hereby issued against the defendants by themselves, their agents, servants or assigns restraining them from leasing, transferring, charging, entering upon, developing, or in any other manner howsoever from dealing with Title Number Kilifi/ Jimba/346. e.Costs of the suit.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 6THDAY OF JULY 2023. M.A. ODENYJUDGENB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.