[2022] KEELC 1850 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.293 OF 2018

(FORMERLY NRB MILIMANI ELC 120 OF 2015)

CROTON INVESTMENT LIMITED.......................PLAINTIFF

VERSUS

LUCY NJOKI MAINA......................................1ST DEFENDANT

THE LAND REGISTRAR, RUIRU................2ND DEFENDANT

ATTORNEY GENERAL.................................3RD DEFENDANT

JUDGMENT

The Plaintiff herein Croton Investment Limited commenced this suit vide a Plaint dated 9th February 2015, and sought for the following orders as against the Defendants;

a) A Declaration that the Plaintiff is the lawful owner of the property known as Ruiru Kiu Block 2/3456.

b) A Permanent Injunction restraining the 1st Defendant from trespassing , interfering, encroaching or in any way possessing the property known as Ruiru Kiu Block 2/3456.

c) An order compelling the 2nd Defendant to immediately remove , withdraw and/or cancel the caution placed upon the suit property.

d) An order for the eviction of the 1st Defendant , her servants and /or agents from the suit property known as Ruiru Kiu Block 2/3456, and everybody claiming through them and under them be bound by the said order.

e) In the alternative to prayer (d) above, an order for delivery up if vacant possession to the Plaintiff of the property known as Ruiru Kiu Block 2/3456, or the portion thereof occupied by the Plaintiff, by herself and or her servants and/or agents and everybody claiming through her or under her be bound by the said order

f) Mesne profits to the date and or granting of vacant possession

g) General Damages for trespass

h) Interest on (e) and (f) above at Court rates from the date of filing suit until

In its statement of Claim, the Plaintiff averred that it is the registered owner of the suit property. However, the 1st Defendant has trespassed onto the suit property and the Plaintiff is unable to peacefully enjoy and carry on its business thereby causing it loss. That the 1st Defendant has laid an illegal claim over the suit property and has registered a caution. It is the Plaintiff’s contention that the 1st Defendant has fraudulently and irregularly obtained an alleged Title in respect of the suit land. It particularized fraud by the 1st Defendant as;-

- Attempting to obtain parallel title document,

- Purporting to take over and evict the Plaintiff, trespassing,

- Registering an encumbrance.

The Plaintiff further particularized fraud and illegality by the 2nd Defendant as;-

- Allocating the 1st Defendant the suit property while there was a prior registration,

- Issuing the 1st Defendant with a title deed to the suit property,

- Attempting to cause issuance of two titles,

- Colluding with the 1st Defendant to obtain the irregular and illegal Title and to register an encumbrance.

It was the Plaintiff’s contention that the 1st Defendant has trespassed and damaged the suit property and it is therefore just that an order of permanent injunction be granted.

The 1st Defendant contested the suit and filed her Amended Defence and Counter Claim dated 8th July 2020, and denied all the allegations made in the Plaint and averred that she is the registered, legal and bonafide owner of L.RRuiru/Kiu Block 2(Githunguri)3456, and thus she is in occupation as the bona fide owner, having been transferred to her by Githunguri Constituency Ranching Company Limitedand having been issued with a Title Deed in her name in 1992. Further that in so far as the Plaintiff’s Title Number L.R Ruiru Kiu Block 2/3456 purports to refer to her parcel of land, then the Plaintiff’s Title is invalid.

That she bought ten shares of Githunguri Constituency Ranching Company Limitedin the 1970s and was duly issued with a share Certificate in her maiden name Lucy Njoki Njoroge. That she balloted and was allocated plot number3456, and two others and took possession upon being shown the land and has been in possession . Further, that she was issued with a Clearance Certificate in the year 1992,and upon making the requisite payments, she was issued with a Title Deed in the year 1992. That with time, she took a loan and built rental houses and she has never sold the suit property to anyone.

That when she learnt that people were claiming her property, she went to Githunguri Constituency Ranching Company Limited and she was informed that the Company had not sold nor allocated the suit land. That upon conducting a search, the green card could not be found and she later learnt that her green card had been removed and another green card with a title Number resembling hers but not the same had been placed showing, thereon that the Plaintiff was the owner. That then she reported the matter to the Police.

That she is the only one with a good title and that the Plaintiff or the person who sold them suit property obtained the title deed fraudulently. She particularized fraud and irregularity as;

- Removal of the green card with her name and unlawfully replacing it with the false one and

- Obtaining an illegal title deed.

She thus contended that the Plaintiff’s claim as per the Plaint are unfounded in law as her Title is indefeasible.

In her Counter Claim, she averred that she initially held land via ballot No.1495, and share certificate No.1087, and she had paid for all of them the requisite fees since 1973. That no two shareholders of the Company could hold similar ballots or share certificate and hence the Plaintiffs claim is fraudulent. She therefore ought for orders that ;

a) That a Declaration be issued that the 1st Defendant’s Title to land parcel Ruiru/ Kiu Block 2(Githunguri)3456, is the legitimate Title and a construction of the register be ordered forthwith

b) That the 2nd Defendant be ordered to cancel or annul the Plaintiff’s Title to land parcel No. Ruiru /kiu Block 2(Githunguri)3456 and all entries , green cards in support of the Title

c) That the Plaintiff be ordered to pay costs and interest of the suit

The matter proceeded by way of Viva Voce evidence wherein the Plaintiff called one witness and the 1st Defendant called two witnesses. The 2nd Defendant did not participate in the proceedings, despite being served with the suit papers.

PLAINTIFF’S CASE

PW1 Dr, Francis Ngatia Kangematestified that he is a Director of Croton Investment Limited and adopted his witness statement as his evidence in Court. He also produced his list of documents as Exhibit 1. He further testified that their Company purchased the suit property in Ruiru from Francis Mwaura. That they entered into a Sale Agreement and paid the purchase price and the title was shown to them. That before purchase, they did their due diligence and the official search revealed that Francis Mwaura was the owner of the suit property, though he did not have an original Title Deed. However, the said Francis Mwaura organized for it and their Advocate told them it was safe to purchase the suit property as it had been advertised in the Kenya Gazette on the loss of the original Title Deed. He further stated that the suit property was then transferred to their Company, Croton Investment Ltd and when they wanted to develop the land four years later, they found someone had trespassed on the suit property.

That Francis Mwaura was a member of Githunguri Constituency Ranching Company Limited, and he held a share or ballot for the plot. That the said Francis Mwaura had the share Certificate dated 5th June 2001, being No. 537, and ballot paper No. 1495. He further testified that the share Certificate was transferred from 2087,vide a transfer dated 10th May 1985. That the Plaintiff Company acquired their certificate of title in 2009,and they could not trace the person who sold the land to them as he was Deceased. That a letter from the Land Registrar confirmed that Francis Mwaura Kimaniwas the registered owner of the suit property and the land is now registered in the name of the Plaintiff.

DEFENCE CASE

DW1 Lucy Njoki Maina adopted her witness statement dated 11th May 2015 as her evidence in Chief. She further testified that she balloted for the suit property from Githunguri Constituency Ranching Company Limited. That her father Njoroge balloted for it and the Title came in the name of Lucy Njoki Maina as she was married by then. She produced the list of documents dated 22nd August 2019 as Exhibits 1 to 7. A further list of documents dated 29th June 2020 as Exhibits 8 to 13 and the list of documents dated 13th October 2020as Exhibits 14 to 15. That the land registration Number is 3456. That she paid for it and she was given receipts . That she obtained a shamba and a plot and ¼ an acre, and the suit property is 1¼ acre. Further that she obtained the Title in 1992, and she has never sold the suit property to anyone. That the Title is in the name of the Plaintiff and she placed a caution on it. Further, that she balloted in the name of her parents and she got the title deed in the name of Lucy Njoki Maina.

DW2 John Maina Mburu testified that he is the Chairman of Githunguri Constituency Ranching Company Limitedfrom 12th September 2009. He adopted his witness statement dated 23rd September 2020as his evidence in Court . He further testified that the owner of L.R Ruiru/Kiu Block 2(Githunguri) 3456is Lucy Njoki Maina, and the parcel of land has not been transferred to any other party . That it is held by ballot 1495and share certificate No. 2087 dated 19th October 1972. Further that the Clearance Certificate for Lucy Njoki was issued on 30th April 1992, and she acquired the Title Deed on 22nd June 1992. That Francis Mwaura was not a member of Githunguri Constituency ranching Company Limited. That as per the Plaintiff’s list of documents, the Share Certificate did not emanate from their Company. Further, that the signatures are imitations of signatures of their former Directors and the Director whose signature has been imitated was known as Mukamba and died in 1995 and one Kamunge resigned in1996. That Lucy Njoki Njorogedid not transfer the suit property to any other person. He testified that Lucy’s Certificate is not cancelled and the share certificate is dated 19th October 1972, and not 10th May 1985 .That the letter dated 17th February 2009, did not emanate from their offices.

Further that Francis Karianji Njorogewas a former Director of the Company between 2003 and 2009 and is a fraudster and he is serving, jail term of 2 years. That when the land was transacted, he was not the Chairman and that he did not know all the, members of Githunguri Constituency Ranching Company Limited,individually, but through records. That if a Director signs a letter on behalf of the Company, the Company would be bound if it is a genuine letter. That the Company did not issue any objection to the Kenya Gazette publication as they did not see the said Notice or Publication. That the essence of the receipt issued in the year 2009, is for taking the owner to the ground to show them the plot.

The parties were directed to file written submissions and in compliance with the said directives, the parties filed their respective written submission which the Court has carefully read and considered and renders itself as follows;-

The Plaintiff and the 1st Defendant have both laid claim to the suit property. While the Plaintiff contends that and has produced in evidence a title deed that indicates that it is the registered proprietor of L.R Ruiru Kiu Block 2/3456, the 1st Defendant has contended and has produced in evidence a title deed that shows that she is the registered owner of L.R Ruiru/kiu Block 2(Githinguri)3456. While the Land Reference Numbers would appear different, from the evidence adduced, there is no doubt in the Court’s mind that the suit property originated from Githunguri Constituency Ranching Company Limited, and that the said property being Land Reference No. 3456 originated from Ballot No.1495 . The question then would be who is the bonafide owner of the said share certificate and ballot card? This is what this Court must determine.

As both parties hold a title deed over the suit property, the Court is guided by the holding of the Court in the case of Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others [2016] eKLR, where 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.”

The Plaintiff through its Director, PW1 testified that it bought the suit property from Francis Mwaura Kimani,who held ballot No. 1495, and was issued with a share Certificate No. 537, dated 5th June 2001, and that the same was transferred from 2087. The Court has perused the documents produced in evidence by the Plaintiff and notes that there is a title deed in the Plaintiff’s name dated 27th August 2009, a letter dated 17th February 2009, from Githunguri Constituency Ranching Company Limited, certifying that Francis Mwaura Kimani is the rightful owner of L.R 2/356, share Certificate No. 537dated 5th June 2001, and a ballot. However, DW2 who is the Chairman of Githunguri Constituency Ranching Company Limited, testified and produced in evidence documents from the Company indicating otherwise and denied that the above documents emanated from their Company.

Together with evidentiary documents, the Defence witness produced, in evidence a letter dated 20th February 2020, from the Company stating that the 1st Defendant was the owner of L.R 3456, and ballotNo.1495. An extract of register was further produced which indicated that the 1st Defendant was the owner alongside a ballot No. 1495, and a Share Certificate 2087. From the share Certificate dated 5th June 2001, the same having been produced by the Plaintiff indicate that the Share Certificate was a transfer from 2087.

The 1st Defendant is the holder of Share Certificate 2087and no evidence has been produced to prove otherwise. As Githunguri Constituency Ranching Company is the custodian of all documentations as pertaining to the suit property and further as the 1st Defendant has produced, in evidence the receipts of payments, Share Certificate 2087, Ballot No. 1495 evidencing the root of her title, the Court is satisfied that it is the 1st Defendant who has satisfactorily shown or proved the root of her certificate of title.

However, the Plaintiff has failed to show that its Certificate of title has a good foundation and that it was properly passed to. There is no evidence that the said Francis Mwaura Kimani, was ever a member of Githunguri Constituency Company Limited and hence no evidence of how he acquired the documentation. The 1st Defendant being the bearer of Certificate No. 2087,has denied ever transferring the same to any other party. The Court therefore finds and holds that the Plaintiff has failed to satisfactorily show the root of its title, whereas the 1st Defendant has done so.

Even if the Court was to assume that both parties have valid documentations, from the evidence produced, it is clear that the 1st Defendant was the one who had been allotted the land in the year1970 and her title deed was issued in 1992, while the documents from the said Francis Mwaura Kimani, who allegedly sold the land to the Plaintiff shows that he was issued with a share certificate in 2001, and the title deed held by the Plaintiff was issued in 2009. On priority basis on allocation of the suit property, the Court finds and holds that the one held by the 1st Defendant must be given priority. See the case of Gitwany Investment ltd vs. Tajmal Ltd & 3 Others (2006) eKLR, where the Court held that:-

‘….the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issued two title in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake then the first in time must prevail’

Further in the case ofRepublic Versus City Council of Nairobi & 3 Others (2014) eKLR, the Court held that;

“once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated,the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.”

Therefore, this Court finds and holds that the 1st Defendant is the bonafide owner of the suit property. The Plaintiff had sought for a permanent injunction and an order for eviction of the 1st Defendant, general damages, mesne profits and delivery of vacant possession. However, the Court has found and held that the 1st Defendant is the bonafide owner of the suit property is and thus the absolute and indefeasible owner and entitled to all the rights and privileges appertain to the suit property as provided by Sections 24 and 25 of the Land Registration Act 2012.

Consequently, the Court finds that the prayers sought by the Plaintiff in its claim dated 9th February, 2015 are not merited and then same are dismissed.

The 1st Defendant has sought for a Declaration that her title is the legitimate one and that the 2nd Defendant be ordered to cancel or annul the Plaintiff’s certificate of title.

Section 26 of the Land Registration Act, provides for circumstances under which a certificate of title can be impeached. The Court has found and held that the 1st Defendant is the bonafide owner of the suit property and that the certificate of title held by the Plaintiff was acquired unprocedurally. This court hence has no option but to impeach the said certificate of title held by the Plaintiff and order for the rectification of the register. The title held by the Plaintiff was issued in the year2009, and thus Section 143 (1) of the Registered Land Act Cap 300 (repealed) comes into play. The provisions of this Section have been repeated inSection 80(1) of the Land Registration Act which provides;

“(1) Subject to subsection (2), the court may 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.”

Flowing from the above provisions of law, the Courts finds and holds that the Plaintiff’s certificate of title is impeachable and thus cancelled. The Counter claim dated8th July 2020, succeeds.

The Counterclaim dated 8th July 2020 is therefore merited.

Having Carefully considered the pleadings by the parties, the evidence adduced and the relevant provision of law, the Court finds and holds that the Plaintiff has failed to prove its case on the required standard of balance of probabilities and therefore its claim dated 9th February 2015 is dismissed entirely.

The Court further finds and holds that the 1st Defendant has provide her case on the required standard of balance of probabilities in her Counterclaim and thus finds and holds that the said Counter Claim is merited and the same is allowed in the following terms; -

a) That a Declaration be and is hereby issued that the 1st Defendant’s Title to land parcel Ruiru/ Kiu Block 2(Githunguri)3456 is the legitimate Title and a rectification of the register be ordered forthwith

b) That the 2nd Defendant be and is hereby ordered to cancel and or annul the Plaintiff’s Title to land parcel No. Ruiru /kiu Block 2(Githunguri)3456, and all entries , green cards in support of the Title

c) That each party to bear their own costs of the suit

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF FEBRUARY, 2022.

L. GACHERU

JUDGE

Delivered online;

In the presence of

Mr. Nyachio HB Mr. Muchemi for the Plaintiff

Mr. Warutere H/B Kanyi Kiruchi for the 1st Defendant

N/A for the 2nd Defendant

Kuiyaki – Court Assistant

L. GACHERU

JUDGE