[2021] KEELC 3201 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA

ELC CASE NO. 203 OF 2014

DANIEL WATAKA MASAMBU ............................................... PLAINTIFF

VERSUS

MOSES MUTECHO WANYONYI .................................1ST DEFENDANT

JACKLINE TERESA N. OLALE .................................... 2ND DEFENDANT

COUNTY GOVERNMENT OF BUNGOMA......................D DEFENDANT

J U D G M E N T

DANIEL WATAKA MASAMBU(the plaintiff herein) and FRANCIS KITUNI WACHANA (now deceased) are the joint proprietors of the land parcel NO NAITIRI TOWNSHIP/25 (the suit land). They were issued with the Certificate of Lease on 1st July 2005 by the Republic of Kenya.

By an amended plaint dated 20th March 2018 and filed herein on the same day, the plaintiff sought Judgment against MOSES MUTECHO WANYONYI, JACKLINE TERESA N. OLALE and THE COUNTY GOVERNMENT OF BUNGOMA (the 1st, 2nd and 3rd defendants respectively) in the following terms: -

1. An eviction order against the 1st and 2nd defendants from the land parcel NO NAITIRI TOWNSHIP/25 belonging to the plaintiff and general damages.

2. Costs and interest.

3. Any other relief this Honourable Court may deem fit and just to grant.

The basis of the plaintiff’s claim is that whereas he and FRANCIS KITUNI WACHANAare the proprietors of the suit land holding the Certificate of Lease issued to them on 1st July 2003 (the correct date is infact 1st July 2005) for a period of 99 years, the defendants invaded the said land in the year 2010 and have started putting up structures thereon. The plaintiff is therefore unable to utilize the suit land and has suffered loss and damage hence this suit.

Together with the plaint, the plaintiff also filed his statement and the following documents.

1. Certificate of lease for the land parcel NO NAITIRI TOWNSHIP/25.

2. Certificate of Search for the land parcel NO NAITIRI TOWNSHIP/25.

3. Land Rate Receipts

4. Letter dated 16th September 1982.

By a further list of documents dated 24th June 2015, the plaintiff filed the following documents: -

1. Bundle of receipts from the Ministry of Lands.

2. Receipts by Kenya Commercial Bank.

3. Land Rate slips

4. Letter from DANIEL W. MASAMBU to the COUNTY COUNCIL OF BUNGOMA.

And in yet a further list of documents filed on 27th January 2020, the plaintiff filed the following document: -

1. Rent Clearance Certificate.

In his statement dated 19th June 2015 and filed herein on 24th June 2015, the plaintiff states that in 1978, he and his now deceased partner FRANCIS KITUNI WACHANA acquired the suit land from the Ministry of Lands and they were duly registered as the lessee for a period of 99 years. That they have been duly paying the land rates for the suit land to-date and only the Ministry of Lands through the Commissioner of lands can revoke the lease and not the 3rd defendant.

The 2nd and 3rd defendants did not file any defences to the suit.

The 1st defendant filed his defence to the amended plaint on 9th June 2020 in which he pleaded, inter alia, that the plaintiff had not produced any letter of allotment in support of his claim to the suit land. He added that he was allotted the suit land by the 3rd defendant in 2007 as the same was undeveloped and un – occupied and was therefore repossessed in 2004. That the plaintiff did not protest when the suit land was allocated to the 1st defendant who has been paying the land rates. The 1st defendant therefore denied having trespassed onto the suit land and sought that the plaintiff’s suit be dismissed with costs.

The 1st defendant also filed his witness statement dated 6th March 2015 in which he stated that in 2005, he was informed that the 3rd defendant had repossessed all the undeveloped commercial plots within NAITIRI MARKET and interested persons may apply for the same. He therefore applied for the suit land which was allocated to him in May 2007 and in October 2009, he developed it after his plans had been approved by the 3rd defendant. During all that period, he did not hear anybody claiming ownership of the suit land and he is therefore surprised that the plaintiff is claiming it.

The 1st defendant also filed the following documents: -

1. Letter dated 17th May 2007 addressed to him by the 3rd defendant authorizing him to develop the suit land within 2 years.

2. Receipt for Kshs. 6,000/= being plan approval fees.

3. Receipt for Kshs. 6,395/= being land rates.

4. Demand Notice for rates dated 20th January 2015.

5. Approved development plans.

On 4th December 2019, the suit against the 3rd defendant was withdrawn with no orders as to costs.

The hearing commenced on 18th January 2021 when the plaintiff and the 1st defendant were the only witnesses who testified. They were led respectively by their Counsel MR KUNDU and MR KHAKULA and adopted their statements whose contents I have already summarized above. They also produced as their documentary evidence the list of documents filed herein.

At the end of the plenary hearing, the parties were allowed 14 days each within which to file and serve their submissions. The matter was to be mentioned on 16th February 2021 to confirm compliance. However, only MR KUNDU Counsel for the plaintiff filed his submissions.

I have considered the evidence by the plaintiff and the 1st defendant who are the only parties who testified in this case. I have also considered the submissions by MR KUNDU.

It is common ground that the suit land has since 1st July 2005 been registered in the names of the plaintiff and one FRANCIS KITUNI WACHANA who hold a 99-year lease from the REPUBLIC OF KENYA as per the Certificate of Lease produced herein. That registration confers upon the plaintiff all the absolute rights to the suit land subject only to the encumbrances permitted by the law. Section 24(b)of the Land Registration Act 2012 provides as follows: -

“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 the implied and expressed rights and privileges belonging or appurtenant thereto subject to all implied or expressed agreements, liabilities or incidents of the lease.”

Section 26(1) of the same Act provides that: -

“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.” Emphasis added.

Similar provisions were found in Sections 27(a) of the repealed Registered Land Act under which the Certificate of Lease to the suit land was issued. It is clear therefore that the law bestows sanctify of title to the plaintiff as the holder of the Certificate of Lease to the suit land. Unless demonstrated otherwise, the plaintiff is the absolute and indefeasible owner of the suit land and among the rights and privileges that he enjoys include the right to evict any trespassers. That is among the remedies that the plaintiff seeks herein. There is nothing to suggest that his title was obtained through fraud misrepresentation, illegally, unprocedurally or through any corrupt scheme. Indeed, I have not heard the 1st defendant impeach the Certificate of Lease held by the plaintiff.

The 1st defendant’s case is that the suit land was allotted to him in 2007 by the 3rd defendant after the plaintiff had failed to develop it. He then developed it and has been paying land rates and rent. That may be so. However, for as long as the plaintiff held the Certificate of Lease to the suit land and which has not been cancelled to-date, that land was not available for allocation to the 1st defendant or any other person or entity. The law, as is now clear, protects the sanctity of title to land so long as there are no grounds to impeach the same. This position has been re – affirmed in many cases including JOSEPH ARAP NG’OK .V. MOIJO OLE KEIWUA & OTHERS C.A CIVIL APPEAL NO 60 OF 1997 [1997 eKLR], NJILUX MOTORS .V. KD & L & ANOTHER C.A CIVIL APPEAL No 206 OF 1998and also RUSSEL & CO LTD .V. COMMERCIAL BANK OF AFRICA LTD 1986 KLR 633. Therefore, unless there is evidence that a title to land was acquired fraudulently or through an illegal or un – procedural process, the Courts have always up – held the sanctity of title. In the circumstances of this case, no attempt has been made to impeach the plaintiff’s title.

The 1st defendant has pleaded in his defence that he acquired the suit land after it had been repossessed by the 3rd defendant following the plaintiff’s failure to develop it within 2 years. This is what he said during the plenary hearing: -

“When I was allocated the plot, it was not developed. I was given the plot by the COUNCIL. I was to develop it within 2 years. It had been repossessed. I was given an allotment letter.”

The 1st defendant did not produce any allotment letter issued to him by the 3rd defendant in respect to the suit land. The letter dated 17th May 2007 addressed to him by the 3rd defendant and which he refers to as an allotment letter is simply an approval directing him to develop the suit land within a period of 2 years. His building plans were subsequently approved by the 3rd defendant. However, that notwithstanding, if the 3rd defendant was minded to repossess the suit land from the plaintiff for whatever reasons, that was an administrative action and the rules of Natural Justice required that it gives the plaintiff an opportunity to be heard before arriving at that decision. This is because, Article 47(1) and (2) of the Constitutionprovide that: -

47(1) “Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.”

(2) “If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action.”

By the time the 3rd defendant was allocating the suit land to the 1st defendant and authorizing him to develop it by it’s letter dated 17th May 2007, the plaintiff already had a Certificate of Lease issued to him and his partner some 2 years earlier on 1`st July 2005 with respect to the same land with the Republic of Kenya as lessor. Since that action adversely affected the plaintiff’s right to property as protected by Article 40 of the Constitution, the 3rd defendant was under an obligation to give the plaintiff an opportunity to be heard before repossessing the suit land and allocating it to the 1st defendant as it purported to do. Therefore, other than the fact that the 3rd defendant had no powers to alienate land already registered in the names of the plaintiff and allocate it to the 1st defendant, even if it had such powers, they ought to have been exercised in the manner prescribed by the law and not arbitrarily. Unfortunately for the 3rd defendant, it failed on both fronts and this Court must intervene.

The plaintiff has sought orders to evict the 1st and 2nd defendants from the suit land. As is now clear, the suit land is the property of the plaintiff who, together with his partner, hold the Certificate of Lease issued to them on 1st July 2005. The 1st defendant confirms in his defence that he has developed the suit land after it was allocated to him by the 3rd defendant. He had no permission from the proprietors of the suit land to carry out any development thereon and neither could the 3rd defendant lawfully allocate him the suit land. The 1st and 2nd defendants are therefore essentially trespassers on the suit land. The plaintiff is therefore entitled to the orders to evict them.

The plaintiff also sought an order for general damages although he did not specify for what reasons. However, from the evidence herein, the general damages awardable can only be on account of the trespass by the 1st and 2nd defendants on the suit land. When he was cross – examined by MR KUNDU, the 1st defendant also confirmed that the 2nd defendant has occupied the suit land. This is what he said: -

“I have put up a shop and rental units on the plot which measures 20 fit by 80 fit. I occupy half of the plot. The other portion is occupied by the 2nd defendant.”

The 2nd defendant having opted not to defend the suit, the allegations against him have not been rebutted. Infact, they have been confirmed by his co – defendant. Trespass is actionable per se i.e. without proof of any damage – KENYA POWER & LIGHTING COMPANY LTD .V. FLEETWOOD ENTERPRISES LTD 2017 eKLR.

In M’MUKANYA .V. M’MBIJIWE 1984 KLR 761, the ingredients of the tort of trespass were restated as follows: -

“trespass is a violation of the right to possession and a plaintiff must prove that he has the right to immediate and exclusive possession of the land which is different from ownership (see THOMSON .V. WARD 1953 2 QB 153).”

In the circumstances of this case, the plaintiff has demonstrated that by virtue of being the registered proprietor of the suit land, he is entitled to the immediate and exclusive possession thereof. While there is no mathematical formula for assessing the general damages for trespass to land, the Court must apply it’s discretion in a manner that is fair and reasonable. Some of the factors that the Court will take into account include the location, value and size of the land, the length of time that the trespass has taken and also if there has been any damage to the property. The conduct of the trespasser is also an important consideration. Most importantly however, each case must be considered on it’s own peculiar circumstances bearing in mind that no two cases can be similar in at respects. In the circumstances of this case, it became clear from the oral testimony of the 1st defendant that the suit land is a plot measuring 20 feet by 80 feet. However, the value of the land was not disclosed though it is situated in NAITIRI TOWNSHIP within BUNGOMA COUNTY. The 1st and 2nd defendants appear to have occupied it since 2007 after it was allocated to the 1st defendant by the 3rd defendant. I do not however consider the 1st and 2nd defendants’ conduct to be in any way oppressive or arbitrary. The suit land was allocated to them by the 3rd defendant as vacant land, albeit illegally. The 1st and 2nd defendants do not strike me as persons who set out to grab the suit land knowing very well that it belonged to another person. Indeed, during cross – examination, the 1st defendant stated that it was only in 2014 when he discovered that the plaintiff had the lease to the suit land. I would not therefore categorize the 1st and 2nd defendants as the typical land grabbers whose intentions were to defraud the plaintiff of his property knowing very well that he already had the Certificate of Lease. If anything, it is the 3rd defendant who put the 1st and 2nd defendants in the situation in which they now find themselves. Taking all that into account and bearing in mind that the 1st and 2nd defendants will, as a result of this Judgment, loose their developments on the suit land, I will award a nominal sum of Kshs. 10,000/= for the trespass.

With regard to costs, the law as provided under Section 27(1) of the Civil Procedure Actis that they follow the event and are at the discretion of the Court unless for good reasons, the Judge decides otherwise. Such discretion must always be exercised judiciously. Each case must be considered on it’s own peculiar circumstances. In this case, the 3rd defendant against whom this suit was withdrawn on 4th December 2019, was the cause of this litigation by alienating land which already belonged to another person. I would have penalized it in costs if it was still a party in these proceedings. In the circumstances of this case, it would be unfair to condemn the 1st and 2nd defendants to pay costs of the suit when the 3rd defendant which precipitated these proceedings has been let off the hook. The interests of justice will best be served by ordering each party to meet their own costs.

Ultimately therefore and having considered all the evidence herein, there shall be Judgment for the plaintiff against the 1st and 2nd defendants in the following terms: -

1. The 1st and 2nd defendants shall vacate the land parcel NO NAITIRI TOWNSHIP/25 within three (3) months of this Judgment.

2. In default of (1) above, the 1st and 2nd defendants shall be evicted from the said land parcel NO NAITIRI TOWNSHIP/25.

3. The plaintiff is also awarded the sum of Kshs. 10,000/= being damages for trespass upon the land parcel NO NAITIRI TOWNSHIP/25.

4. Each party shall meet their own costs.

BOAZ N. OLAO.

J U D G E

26TH MAY 2021.

JUDGMENT DATED, SIGNED AND DELIVERED AT BUNGOMA THIS 26TH DAY OF MAY 2021 BY WAY OF ELECTRONIC MAIL IN KEEPING WITH THE COVID – 19 PANDEMIC GUIDELINES.

Right of Appeal explained.

BOAZ N. OLAO.

J U D G E

26th May 2021.