https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5050

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC CASE NO. 79 OF 2019** **COL (RTD) DR HENRY MUTHEE KATHURIMA** **[*Now Deceased and substituted by* SARAH** **MWAKA KATHURIMA)..............................................PLAINTIFF** **=VERSUS=** **COUNTY GOVERNMENT OF MERU..................1ST DEFENDANT** **CHIEF LAND REGISTRAR...............................2ND DEFENDANT** **JUDGMENT** **Background** 1. This suit was initially designated as **Meru High Court Environment and Land Case No 79 of 2014**. When the ELC Registry was fully operationalized, it was designated as **Meru ELC Case No 79 of 2019.** 2. The late Col (Rtd) Dr Henry Muthee Kathurima [*hereinafter referred to as* ***“the deceased”*** *or* ***“the plaintiff”***] initiated the suit through a plaint dated 16/5/2014. The plaint was amended on 15/6/2020. Through the amended plaint, the deceased alleged that he was the lawful lessee of land parcel numbers **Meru Municipality Block 11/870** and **871**. He contended that on 10/5/2014 and 11/5/2014, the 1st defendant’s agents descended on the two parcels and purported to share the parcels out to traders to put up shacks and conduct their businesses in them. Among other reliefs, he sought injunctive orders against the defendants. The 1st defendant filed a defence dated 15/6/2015 in which they contended that the two parcels were public lands. There is no record of any pleadings that may have been filed by the 2nd defendant. The deceased died on 23/5/2016 during the pendency of the suit. He was substituted by his widow, **Sarah Mwaka Kathurima.** 3. The suit was heard and now falls for determination in this Judgment. One of the key issues to be determined in the Judgment is whether the two parcels are public lands. Before I analyse and dispose the issues that fall for determination, I will outline, in summary, the parties’ respective cases and evidence. **Plaintiff’s Case** 1. Vide a plaint dated 16/5/2014 and amended on 15/6/2020, the estate sought the following verbatim reliefs against the defendants:- 2. ***A declaration that the plaintiff is the registered proprietor of L.R Nos Meru Municipality Block II/870 and 871 and the plaintiff is entitled to the vacant possession thereof.*** 3. ***A permanent order of injunction restraining the defendants by themselves, their employees, servants, agents or anybody else acting at the defendants’ direction, employment, contract or in any manner whatsoever from forever interfering with the plaintiff’s ownership, user, occupation and enjoyment of Meru Municipality Block II/870 & 871.*** 4. ***An order for lifting of the restriction placed over LR Nos Meru Municipality Block II/870 & 871.*** 5. ***General damages for trespass and the irregular registration of a restriction against the plaintiff’s land.*** 6. ***Costs & interest of the suit.*** 7. The estate of the deceased averred that the deceased was the registered proprietor of the suit lands, having been so registered on 30/6/2003 and having been issued with certificates of lease on the same date. The estate added that the 1st defendant’s predecessor, the County Council of Meru, leased to the deceased the two parcels for a period of 99 years from 30/6/2003 (sic). 8. The estate further averred that on 10/5/2014 and 11/5/2014, the 1st defendant’s agents descended on the two parcels and purported to illegally share the parcels out to traders to put up shacks and conduct their businesses in the shacks. **Plaintiff’s Evidence** 1. The estate led evidence by **Sarah Mwaka Kathurima** who testified as **PW1**. She adopted the contents of the deceased’s written statement which was at page 8 of the plaintiff’s trial bundle. She also adopted the contents of her own written statement dated 9/3/2022. Her evidence was that the deceased applied for and was allocated land parcel number **Meru Municipality Block II/287** and **805**. Parcel number 287 was used as a collateral and was subsequently purchased by one **Stephen Michuki M’Kiungu** in a public auction conducted by a chargee. 2. She added that the predecessor of the 1st defendant forcibly built a toilet on a small portion of land parcel number 805. The deceased and the 1st defendant’s predecessor subsequently agreed that the deceased would excise the portion occupied by the toilet through subdivision. As a result of the mutual agreement, parcel number 805 was subdivided into three portions surveyed and registered as parcel numbers 870; 871 and 872. The portion with the toilet was surveyed as parcel number 872 and was surrendered to the 1st defendant’s predecessor while the deceased retained parcel numbers 871 and 872. [*The section and block numbers for the parcels are* ***Meru Municipality/Block II***]. 1. PW1 reiterated the plaintiff’s case as summarized in the preceding paragraphs. She produced a total of 37 exhibits, among them, copies of registered titles relating to the two suit lands, issued in June 2003. She urged the court to grant the estate the reliefs sought in the amended plaint. 2. **Elias Kaburu** testified as **PW2**. At the time of testifying, he was a Deputy Director in the Department of Land Administration, Ministry of Lands, Housing and Physical Planning. He testified as a delegatee of the Director of Land Administration. He produced the correspondence file relating to parcel number II/805 out of which the two suit lands were surveyed. He testified that parcel number 805 was allocated to Henry Muthee Kathurima and was subsequently subdivided into parcel numbers 870, 871 and 872. It was his further evidence that parcel number 872 had been designated as a surrender to the Government. **1st Defendant’s Case** 1. The 1st defendant entered appearance on 26/5/2014 through a memorandum of appearance dated 26/5/2014, filed by ***M/s Kiautha Arithi & Co Advocates***. They subsequently filed a defence dated 15/6/2015 on 15/6/2015 through the same law firm. They denied the contention that the deceased was the registered proprietor of the suit lands and that he was a 99 year lessee of the defunct County Council of Meru. They also denied the allegations that their agents descended on the suit lands on 10/5/2014 and 11/5/2014 and shared the said parcels to traders to put up shacks and carry their businesses in the shacks. They contested the deceased’s ownership of the parcels, adding that the suit parcels were public lands. They urged the court to dismiss the plaintiff’s claim. 2. Hearing of the plaintiff’s case closed on 1/7/2025. On that day, counsel for the 1st defendant informed the court that he would call one witness who was not in court on that day. By consent, the defence hearing was rescheduled to 6/10/2025. Come 6/10/2025, counsel for the 1st defendant applied for an adjournment on the ground that they were unable to trace the 1st defendant’s witness who was an employee in the 1st defendant’s Physical Planning Department. The plaintiff opposed the application for adjournment. The court, nonetheless, granted the 1st defendant a last adjournment and listed the matter for defence hearing on 2/2/2026. 3. Come 2/2/2026, counsel for the 1st defendant informed the court that despite them writing to the 1st defendant to avail their witness, the 1st defendant had failed to give them instructions. Counsel applied for an adjournment. The application was vehemently opposed by the plaintiff. The court rendered a brief ex-tempore ruling in which it held that the defence which counsel was conducting was that of the 1st defendant and if the 1st defendant did not want to present its defence evidence, the court would not force them to do so. The court further found that the 1st defendant’s refusal to present defence evidence was not a proper basis for granting an adjournment to counsel for the 1st defendant. The court rejected the oral application for an adjournment. 4. The court having rejected counsel’s application for adjournment, counsel informed the court that he did not have defence evidence to tender on behalf of the 1st defendant. Consequently, the case of the 1st defendant was marked “closed”. **Case of the 2nd Defendant** 1. The 2nd defendant neither entered appearance nor filed defence despite the fact that the restriction which he had registered against the titles was the subject of the dispute. The Attorney General’s representative who was in court on 2/2/2026 in relation to a different case informed the court that she did not have instructions to come on record in this matter at that point. **Plaintiff’s Submissions** 1. The plaintiff filed written submissions dated 4/2/2026 through ***M/s Mwirigi Kaburu & Co Advocates***. Counsel for the plaintiff submitted that the plaintiff had tendered evidence demonstrating that the deceased procedurally acquired leasehold interest in the suit lands through allocation, payment of premiums, registration of leasehold proprietorship and issuance of leasehold titles. Counsel added that despite being accorded ample opportunity to tender its evidence, the 1st defendant failed to lead evidence to challenge the deceased’s registration or to justify the subsisting restrictions by the Land Registrar. Counsel urged the court to grant the reliefs sought in the amended plaint. **Defendant’s Submissions** 1. The court gave directions on filing of submissions on 2/2/2026. Present in court on that day were ***Mr Mwirigi Kaburu*** for the plaintiff and ***Mr Gikunda Arithi*** for the 1st defendant. Both defendants did not tender submissions. **Analysis and Determination** 1. The court has considered the pleadings, the evidence and the submissions tendered in the suit. As pointed out, the 1st defendant filed a defence but did not tender evidence to support the defence or to controvert the evidence led by the plaintiff. The 2nd defendant neither entered appearance nor filed a defence. Taking the above into account, the key issues that fall for determination in this suit are: (i) Whether the late Henry Muthee Kathurima is the registered proprietor of land parcel numbers Meru Municipality Block II/870 and 871; (ii) Whether the two parcels are public lands; and (iii) Whether the plaintiff is entitled to the reliefs sought in the amended plaint. I will analyse and dispose the three issues sequentially in the above order. 2. Is the late Henry Muthee Kathurima the registered proprietor of the two suit lands? Through its defence dated 15/6/2015, the 1st defendant denied the plaintiff’s contention that the late Kathurima was the registered proprietor of the two parcels that are the subject matters of this suit. The court has evaluated the evidence that was tendered by the plaintiff on the issue. First, the plaintiff tendered copies of registered titles showing that the two parcels were registered in the name of the late Col (Rtd) Henry Muthee Kathurima on 30/6/2003. Also produced were two official searches that confirm the registration of the late Kathurima as proprietor of the suit parcels. 3. The plaintiff led evidence by Elias Kaburu, a Deputy Director in the Department of Land Administration in the National Government. He similarly confirmed that the two parcels were registered in the name of the late Kathurima. On their part, the 1st defendant did not tender any evidence to support their denial of the fact that the late Kathurima was the registered proprietor of the two parcels. Consequently, taking the above evidence into account, and in the absence of any controverting evidence, the court finds that the late Henry Muthee Kathurima is the registered proprietor of land parcel numbers Meru Municipality Block II/870 and 871. 4. Are the said parcels public lands? The 1st defendant pleaded in paragraph 9 of their defence that if the late Kathurima held certificates of leases relating to the two parcels, the same were null and void because the suit lands were public lands. Regrettably, when the court granted the 1st defendant the opportunity to tender evidence impeaching the late Kathurima’s leasehold titles, the 1st defendant failed to tender any evidence. 5. On their part, the plaintiff tendered evidence in form of the correspondence file held by the Department of Land Administration in Ardhi House. It contained records relating to the allocation of the suit lands to the late Kathurima. The suit lands were surveyed out of Meru Municipality Block II/805 which was allocated to the late Kathurima and subsequently subdivided into parcel numbers 870, 871 and 872. Parcel number 872 was surrendered to the Local Authority (the lessor). The plaintiff further led evidence showing that the two titles that the estate is waving were issued to the late Kathurima in 2003 by the Department of Lands. 6. The relevant statutory framework on the legal significance of registration and issuance of a certificate of title relating to land is contained in **Sections 24, 25** and **26** of the **Land Registration Act** which provide as follows: ***24. Interest conferred by registration*** ***Subject to this Act—*** ***(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and*** ***(b) the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.*** ***25. Rights of a proprietor*** ***(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—*** ***(a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and*** ***(b) to such liabilities, rights and interests as affect the same and are declared by*** [***section 28***](https://kenyalaw.org/akn/ke/act/2012/3/eng%402022-12-31#part_II__sec_28) ***not to require noting on the register, unless the contrary is expressed in the register.*** ***(2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.*** ***26. Certificate of title to be held as conclusive evidence of proprietorship*** ***(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.*** ***(2) A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original....*** 1. As the party alleging that the titles held by the estate of the late Kathurima were null and void, the 1st defendant was obligated by **Sections 107, 108 and 109** of the **Evidence Act** and **Section 26** of the **Land Registration Act** to tender evidence proving that the two titles were null and void. Regrettably, the 1st defendant failed to tender the necessary evidence. 2. In the absence of impeaching evidence, the court is obligated by **Section 26(1)** of the **Land Registration Act** to accept the titles held by the estate of the late Kathurima as indefeasible and protect the titles in terms of **Article 40** of the Constitution. Consequently, the court finds that having elected not to tender evidence, the 1st defendant failed to prove the allegation that the suit parcels are public lands. 3. Is the plaintiff entitled to the reliefs sought in the amended plaint? In light of the findings on the two issues, it follows that the estate of the late Kathurima is entitled to prayers *(a),* *(b)* and *(c)* of the amended plaint. 4. With regard to the plea for general damages, the court notes that the relief of general damages had two limbs: (i) general damages for trespass; and (ii) general damages for the irregular registration of restrictions against the two titles. No evidence was tendered on the issue of damages. Secondly, both the pleadings and the submissions were not specific on the liable defendant and the proposed damages for each of the two limbs. The view the court takes is that, in the absence of specific pleadings, evidence and submissions, it would be irregular for the court to pluck figures from the air and assign unsupported figures to each of the two limbs and condemn unspecified defendants to bear the awards. Due to the above omissions, there will be no award of general damages. 5. On costs, the general principle in **Section 27** of the **Civil Procedure Act** is that costs follow the event. No proper grounds have been demonstrated to warrant a departure from the general principle. Consequently, the two defendants will bear costs of the plaintiff in equal portions. **DATED, SIGNED AND DELIVERED AT MERU THIS 20TH DAY** **OF JULY, 2026.** **B M EBOSO [MR]** **ELC JUDGE**