[2018] KEELC 2207 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC PETITION CASE NO. 08 OF 2017

IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOM UNDER ARTICLE 22,27, 40 OF THE CONSTITUTION OF KENYA 2010

BETWEEN

ELIAS NTWIGA.................................................................PETITIONER

VERSUS

LAND ADJUDICATION & SETTLEMENT OFFICER

MERU SOUTH........................................................1ST RESPONDENT

DIRECTOR OF ADJUDICATION.......................2ND RESPONDENT

LAND REGISTRAR MERU SOUTH....................3RD RESPONDENT

HON. ATTORNEY GENERAL..............................4TH RESPONDENT

ANDERSON NJAGI M’MURIANKI....................5TH RESPONDENT

JACKSON IRERI ABIDAN..................................6TH RESPONDENT

ANDERSON MIRITI ABIDAN.............................7TH RESPONDENT

BONFACE MBAE ABIDAN...................................8TH RESPONDENT

JUDGMENT

1. This judgment concerns a petition which is in the following form:

AMENDED PETITION

TO:

HIGH COURT OF KENYA

AT CHUKA

The petition of Elias Ntwiga of Chogoria in Tharaka Nithi County in the Republic of Kenya who brings this petition on his own behalf and states as follows:-

1. The petitioner is the owner of parcel Numbers 572 – Gatua Registration section and his address of service for the purpose of this suit is P. O.Box 83, Chogoria.

2. The 1st respondent is the Land Adjudication Officer, Meru South Sub County.

3. The 2nd respondent is the Director of Land Adjudication in the Republic of Kenya.

4. The 3rd respondent is the Land Registrar Meru Sub County.

5. The 4th respondent is the Hon. Attorney General the Chief Legal Advisor of the Government of Kenya their address of service shall be P. O. Box 51-60200 Meru and is sued on behalf of the other respondents who are government officers.

6. The 5th respondent is an adult of sound mind and disposition a resident of Tharaka Nithi County.

7. The 6th respondent is an adult of sound mind and disposition (sic) a resident of Tharaka Nithi County.

8. The 7th respondent is an adult of sound mind and disposition (sic) a resident of Tharaka Nithi County.

9. The 8th respondent is an adult of sound mind and disposition (sic) a resident of Tharaka Nithi County.

10. The petitioner bought his land from one M’Rachi Kiraithe in the year 1969 on the 1st May, 1969 measuring 6. 80 acres.

11. That the seller had refused to transfer the land and (sic) issued him vide Chuka District Magistrate Court Civil Case Number 45/1972.

12. That the court delivered its judgment ordering M’Rachi Kiraithe to transfer the land to me which he did.

13. That the transfer of the land from M’Rachi Kiraithe to me was done vide objection 311 which objection proceedings that 1st respondent has refused to supply me.

14. That upon inquiry at the land adjudication office Meru South I found that my land had been subdivided without my knowledge and issued new numbers and title deed, the parcel that was used to subdivide my land is parcel No. 413.

15. That the parcels were subdivided and registered as follows:-

a. Anderson Njagi M’Murianki parcel number 386 0. 62 Ha.

b. Jackson Ireri Abidan parcel number 1841 0. 28 Ha.

c. Anderson Miriti Abidan parcel number 1840 0. 76 Ha.

d. Boniface Mbae Abidan parcel number 413 0. 69 Ha.

16. That the respondents illegally unlawfully and without just cause subdivided my parcel of land number 572 on sheet 7 of the map to the above named persons which has deprived me my right of ownership of property as enshrined in the constitution of Kenya 2010

17 That the 1st, 2nd and 3rd respondents illegally, unlawfully and (sic), subdivided my land and gave away my land thus depriving me my right to own land.

18. That on the maps my parcels of land can be seen however on the ground it is not there. It is the respondents who altered documents to deprive me my right to own property.

PARTICULARS OF FRAUD AND DECEIT AGAINST THE RESPONDENTS JOINTLY AND SEVERALLY FOR:-

a. Without justifiable cause altering and transferring my land to other people and giving it new numbers.

b. Registering parcel 413 from my parcel 572 without any justifiable cause.

c. Acting in bad faith and with malice to displace the lawful owners of parcel Number 572 on sheet of 7 of the index map.

d. Running a sham process to deny the petitioner his lawful land.

REASONS WHEREFORE: the petitioner pray (sic) for judgment to be entered against the respondents jointly and severally for:

a. A declaration that the respondents action of subdividing his parcel 572 to 413 and giving it away to other people is arbitrary, untenable unconstitutional and therefore unlawful for being in breach of articles 27, 40 and 47 of the constitution of Kenya (2010) and for an order directing that the 1st respondent to place back parcel 572 on sheet 7 on the maps as bought by the petitioner and be registered into his name by the 3rd respondent.

b. A declaration that the petitioner (sic) right to own property has been violated by respondents.

c. Costs of this petition.

d. A declaration for cancellation of all titles that were issued as a result of taking portion of parcel 572 to 413 by the 1st and 3rd respondents.

DATED AT CHUKA THIS 19TH DAY OF SEPTEMBER, 2017

ELIAS NTWIGA

PETITIONER

2. The petition is answered through the affidavit of the 8th defendant sworn on 21st November, 2017 which is reproduced herebelow in the deponents words without any erasure whatsoever. It states:

ANSWER TO AMENDED PETITION

I BONIFACE MBAE ABIDAN OF P. O. BOX 239 Chuka in the Republic of Kenya make oath and state as follows:

1. That I am the 8th respondent herein with full authority from the 5th, 6th and 7th respondents to make and swear this oath.

2. That the 5th, 6th and 7th respondents and I have read the amended petition which is undated and having understood the contents therein I wish to make the following response on my behalf and that of the 5th, 6th and 7th respondents.

3. That our address for service for the purpose of this petition is C/O M/S I.C. Mugo & Co. Advocates P. O. Box 380 Chuka.

4. That the 5th, 6th and 7th respondents and I have no issues with the petitioner’s address for service as posted in paragraph 1 of the amended petition.

5. That in further response to the contents of paragraph 1 of the amended petition I wish to state as follows;

i) That during adjudication process of Gatua adjudication section the petitioner’s land number LR: MUTHAMBI/GATUA/572 was drawn in the map as appearing in two sheets that is sheet number 7 and sheet number 1.

ii) That on demarcation the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 was demarcated and delineated as appearing in sheet number 1.

iii) That both of the map and on the ground the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 appears on map sheet number 1.

iv) That although land parcel LR; MUTHAMBI/GATUA/572 appeared in sheet number 7 on the ground such land does not exist.

v) That there is no way that the petitioner can have his land equal in size on two different sheet maps.

vi) That during the adjudication the adjudication and demarcation officer must have made an omission by retaining the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 on sheet map number 7.

6. The contents of paragraphs 2, 3, 4 and 5 of the amended petition are correct in so far as the same relates to the descriptions of the 1st, 2nd 3rd and 4th respondents to this amended petition.

7. The contents of paragraph 5,6, 7 and 8 of the amended petition are correct in so far as the same relates to the names and addresses of the 5th, 6th, 7th and 8th respondents to this amended petition.

8. That the 5th, 6th and 7th respondents and I plead ignorance of facts deposed by the petitioner at paragraph 10 of the amended petition and in particular that the 5th, 6th, 7th and 8th respondents were not informed by the petitioner when he purchased the alleged 6. 80 acres from one M’RACHI KIRAITHE.

9. That the 5th, 6th, 7th respondents and I equally plead that we are strangers to the petitioner’s averments in paragraph 11 of the amended petition and in particular the petitioner sued one M’RACHI KIRAITHE vide CHUKA DISTRICT MAGISTRATE COURT CIVIL CASE NO 45 OF 1972.

10. That equally and by the dint in number 9 of this answer to the amended petition the 5th 6th and 7th respondents and I are strangers to the contents of paragraph 12 of the amended petition and in particular that the judgment in CHUKA D.M’S COURT CIVIL CASE NO. 45 OF 1972 adjudged M’RACHI KIRAITHE to transfer any land to the petitioner.

11. That the 5th, 6th and 7th respondents and I are once more strangers to objection no 311 and also that M’RACHI KIRAITHE ever transferred any land to the petitioner.

12. That the contents of paragraph 14 of the amended petition is misleading and in particular by the mention of land parcel 413 Gatua adjudication section as it was then and I wish to qualify the petitioner’s averments as follows;

(i) That land parcel 413 Gatua adjudication section as it was then was ancestral and belonging to ABIDAN NDIGA NJURI.

(ii) That land parcel 413 Gatua adjudication section as it was then was subdivided by the owner one ABIDAN NDIGA NJURI and he distributed the same to his sons namely JACKSON IRERI ABIDAN who got 1. 01 Acres, ANDERSON MIRITI ABIDAN who got 2. 12 acres and BONIFACE MBAE ABIDAN who got 2. 12 acres (annexed and marked B.M. A. 2 is a document from the adjudication office effecting subdivision for 413 Gatua adjudication section).

(iii) That when title deeds were issued for MUTHAMBI/GATUA registration area JACKSON IRERI ABIDAN was given land parcel LR; MUTHAMBI/GATUA/1841, ANDERSN MIRITI ABIDAN was given LR; MUTHAMBI/GATUA/1840 and BONIFACE MBAE ABIDAN was given LR; MUTHAMBI/GATUA/413 (annexed and marked B.M. A. 3 a, b, c, d, e and f are copy of registers and official searches for LR; MUTHAMBI/GATUA/1841, 1840 and 413 respectively)

(iv) That if M’RACHI KIRAITHE sold land to the petitioner the land sold was situated at Gaketha village and not Ituntu village where land parcels number LR; MUTHAMBI/GATUA/413, 1840 and 1841 are situated.

(v) That ABIDAN NDIGA NJURI did not sell any land to the petitioner therefore the petitioner could not be having land in land parcels LR; MUTHAMBI/GATUA/413, 1840 AND 1841 which are ancestral land.

(vi) That the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 is in Nithi River valley intact and the same is to be found in registry sheet map no. 1 (annexed and marked B.M. A. 4 a and b are the green card and official search of LR; MUTHAMBI/GATUA/572 respectively).

13. That in response to the contents of paragraph 15 of the amended petition I wish on behalf of myself and of the 5th, 6th and 7th respondents to respond in the following manner;

i) That land parcel LR; MUTHAMBI/GATUA/386 is ancestral land with nothing to do with M’RACHI KIRAITHE from whom the petitioner purport to have bought land from (annexed and marked B. M. A. 5 a and b are the green card and official search of LR; MUTHAMBI/GATUA/386).

ii) That land parcel LR; MUTHAMBI/GATUA/386 is ancestral land and M’MURIANKI M’KONDO never sold any part thereof let alone to the petitioner.

iii) That LR; MUTHAMBI/GATUA/386 was direct transfer from M’MURIANKI M’KONDO to one of his sons ANDERSON NJAGI M’MURIANKI the 5th respondent.

iv) That LR; MUTHAMBI/GATUA/1840, 1841 AND 413 are subdivisions carried out during adjudication by ABIDAN NDIGA NJURI.

v) That there is no time that the petitioner ever lodged an objection against ABIDAN NDIA NJURI in respect to land parcel 413 Gatua adjudication section.

14. In light of the foregoing the petitioner’s averments at paragraph 16 of the amended petition are misconceived and incompetent given that the petitioner’s land LR; MUTHAMBI/GATUA/572 is not to be found on sheet number 7 rather it is on sheet no 1 and for sure LR; MUTHAMBI/GATUA/572 cannot be found in sheet no. 1 and sheet no. 7 at the same time and with the same acreage.

15. That if the 1st and 2nd respondents subdivided the petitioner’s land and gave it away as deposed in paragraph 17 of the amended petition then such land was not LR; MUTHAMBI/GATUA/413, 1840, 1841 and / or 386.

16. That the petitioner is conceding that LR; MUTHAMBI/GATUA/572 is not on the ground in map sheet no. 1 but the petitioner is economical with the truth in that he does not tell the court that his land LR; MUTHAMBI/GATUA/572 is in map sheet no. 1 both on map and on the ground and as I have pointed out the petitioner cannot be seen to be having his land with the same registration number in different map sheets.

17. That the particulars of fraud and deceit itemized at paragraph 18 (a) to (d) are denied in toto and in fact it is the petitioner who wants to reap from where he has not planted and enrich himself unfairly.

18. That the amended petition is time barred by dint of section 7 of law of limitation of actions act CAP 22 granted that a period in excess of 12 years are over from the time the cause of action arose if any.

Reasons wherefore the 5th, 6th, 7th ad 8th respondents pray that the petitioner’s amended petition be dismissed with costs to the 5th, 6th, 7th and 8th respondents.

3. The petition was canvassed by way of written submissions.

4. The petitioner’s submissions are reproduced in full herebelow:

(Petitioner’s submissions are in the exact words used by the petitioner and without any erasure)

PETITIONERS SUBMISSIONS

Your honour, the petitioner herein filed this petition on the 19th October, 2017, seeking a declaration against the respondents jointly and severally for:-

a. A declaration that the respondents action of subdividing his parcel No.572 to 413 and giving it away to other people is arbitrary, untenable, unconstitutional and therefore unlawful for being in breach of Article 27, 40 and 47 of the constitution of Kenya (2010) and for an order directing that the 1st respondent to place back parcel 572 on sheet 7 on the maps as bought by the petitioner and be registered into his name by the 3rd respondent.

b. A declaration that the petitioner’s right to own property has been violated by the respondents.

c. Costs of this application.

d. A declaration for cancellation of all titles that were issued as a result of taking portion of parcel 572 to 413 by the 1st and 3rd respondent.

The petition is supported by the supporting affidavit sworn on the 5th June, 2017 and the further supporting affidavit sworn on the 5th June, 2017 by M’RACHI KIRAITHE who sold the suit land to the petitioner.

The petitioner has clearly deponed that he purchased the land from M’RACHI KIRAITHE on 1st May, 1969 measuring 6. 80 acres and has attached a copy of the agreement, further he has attached a copy of proceedings and judgment in CHUKA District Magistrates Succession Cause No. 45 of 1972 which is a suit between the petitioner and the person who sold to him the land.

The petitioner wrote to the director of adjudication who directed the land adjudication officer to register his land which was also transferred to him vide objection 311 which adjudication office has refused to produce.

The petitioner’s parcel No. 572 can be seen on the maps but is not on the ground.

From the foregoing your honour, it is clear that the petitioners rights to property have been violated by the respondents and therefore your honour we urge you to allow this petition as filed since the petitioner has not been served with any response by the respondents.

DATED AT MERU THIS 7TH DAY OF DECEMBER, 2017

ELIAS NTWIGA

5. The submissions of the 5th, 6th, 7th and 8th respondents are reproduced herebelow:-

(THE 5TH, 6TH, 7TH AND 8TH RESPONDENTS’ FINAL SUBMISSIONS IN THE EXACT WORDS USED BY THE RESPONDENTS’ ADVOCATE AND WITHOUT ANY ERASURE)

1. Your lordship by an undated amended petition but received in court on 19th October, 2017 the petitioner presented the following prayers for consideration by the court;

i. A declaration that the respondent’s action of subdividing his parcel 572 to 413 and giving it away to other people is arbitrary, unconstitutional and therefore unlawful for being in breach of articles 27, 40 and 47 of the constitution of Kenya (2010) and for an order directing that the 1st respondent to place back parel 572 on sheet 7 on the map as bought by the petitioner and be registered into his name by the 3rd respondent.

ii. A declaration that the petitioner’s right to own property has been violated by the respondents.

iii. Costs of this petition.

iv. A declaration for cancellation of all titles that were issued as a result of taking portion of parcel 572 to 413 by the 1st and 3rd respondents.

2.

(i) This being a petition deposed in his undated amended petition that the petitioner bought his land from one M’Rachi Kirathe in 1969, that the seller refused to transfer the land and the petitioner sued him vide CHUKA D.M’S COURT CIVIL CSE NO. 45 OF 1972 and a verdict delivered ordering M’RACHI KIRAITHE to transfer the land to the petitioner, that the transfer of the purchased land was by objection No. 311.

(ii) The petitioner further deposed that upon inquiry at the land adjudication office the petitioner found out that “his land” had been subdivided and given new numbers. The subdivisions and registration was as follows, ANDERSON NJAGI M’MURIANKI PARCEL NO. 386, JACKSON IRERI ABIDAN PARCEL NO. 1841, ANDERSON MIRITI ABIDAN PARCEL NO. 1840,BORNFACE MBAE ABIDAN PARCEL NO. 413.

(iii) That the petitioner further deposed that the respondents subdivided LR; MUTHAMBI/GATUA/572 on sheet number 7 depriving the petitioner the right to own property, that the 1st, 2nd and 3rd respondents illegally and unlawfully subdivided the petitioner’s land and gave it away thus depriving him right to own land.

(iv) That on the map the petitioner’s land can be seen but on the map it is not there.

(v) The petitioner particularized and itemized fraud attributed to the respondents thus altering and transferring the petitioner’s land to other people under new numbers, registering land parcel number 413 from the petitioner’s land LR; MUTHAMBI/GATUA/572, acting in bad faith and with malice to displace the lawful owner of parcel number LR; MUTHAMBI/GATUA/572 on sheet number 7 of the index map, running a sham process to deny the petitioner his lawful land.

3.

(i) The 5th, 6th, 7thand 8threspondents on their part in opposition to the petitioner’s amended petition filed and served their answer to petition sworn by BONIFACE MBAE ABIDAN and dated 21stSeptember, 2017. The deponent therein averred that he was swearing on his behalf and that of the 5th, 6thand 7threspondents. The deponent deposed therein that during adjudication process of Gatua adjudication section the petitioner’s land number LR; MUTHAMBI/GATUA/572 was drawn in the map as appearing in two sheets that is sheet number 7 and sheet number 1, at on (sic) demarcation the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 was demarcated and delineated as appearing in sheet number 1, that both on the map and on the ground the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 appears on map sheet number 1, that although land parcel LR; MUTHAMBI/GATUA/572 appeared in sheet number 7 on the ground such land does not exist, that there is no way that the petitioner can have his land equal in size on two different sheet maps, that during the adjudication the adjudication and demarcation officer must have made an omission by retaining the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 on sheet map number 7.

(ii) The 5th to 8th respondents had no issue of the addresses of the respondent as posted by the petitioner in his amended petition. That the 5th to 8th respondents were not informed by the petitioner that the petitioner had bought land from one M’RACHI KIRAITHE and indeed they were not aware that the petitioner had bought any land from anybody. That the 5th to 8th respondents were strangers to the petitioner’s averments that the petitioner had sued one M’RACHI KIRAITHE VIDE CHUKA D.M’S COURT CIVIL CASE NO. 45 OF 1972. The 5th to 8th respondents equally deposed that they were not aware in CHUKA D.M’S COURT CIVIL CASE NO. 45 OF 1972 that one M’RACHI KIRAITHE should give the petitioner’s averments that he got land from M’RACHI KIRAITHE under objection no. 45 of 1972.

(iii) That the petitioner’s mention of parcel number 413 Gatua adjudication section the petitioner was misleading the court. The deponent then went on to qualify the averments of the petitioner as deposed at paragraph of the amended petition as follows;

a) That land parcel 413 Gatua adjudication section as it was then was ancestral land belonging to ABIDAN NDIGA NJURI.

b) That land parcel 413 Gatua adjudication section as it was then was subdivided by the owner one ABIDAN NDIGA NJURI and he distributed the same to his sons namely JACKSON IRERI ABIDAN who got 1. 01 acres, ANDERSON MIRITI ABIDAN who got 2. 12 acres AND BONIFACE MBAE ABIDAN who got 2. 12 ACRES.

c) That when title deeds were issued for Muthambi/Gatua registration area JACKSON IRERI ABIDAN was given land parcel LR; MUTHAMBI/GATUA/1841, ANDERSON MIRITI ABIDAN was given LR; MUTHAMBI/GATUA/1840 and BONIFACE MBAE ABIDAN was given LR; MUTHAMBI/GTUA/413.

d) That if M’RACHI KIRAITHE sold land to the petitioner the land sold was situated at Gaketha village and not Ituntu village where land parcels number LR; MUTHAMBI/GATUA/413, 1840 and 1841 are situated.

e) That ABIDAN NDIGA NJURI did not sell any land to the petitioner therefore the petitioner could not be having land in land parcels LR; MUTHAMBI/GATUA/413, 1840 AND 1841 which are ancestral land.

f) That the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 is in Nithi River Valley intact and the same is to be found in registry sheet map No. 1.

4.

i) The deponent in the answer to the petition went on to state that land parcel LR;MUTHAMBI/GATUA/386 is ancestral land with nothing to do with M’RACHI KIRAITHE from whom the petitioner purports to have bought land from, that land parcel LR; MUTHAMBI/GATUA/386 is ancestral land and M’MURIANKI M’KONDO never sold any part thereof let alone to the petitioner, that LR; MUTHAMBI/GATUA/385 was a direct transfer form M’MURIANKI M’KONDO to one of his sons ANDERSON NJAGI M’MURIANKI the 5th respondent.

ii) That LR; MUTHAMBI/GATUA/1840, 1841 and 413 are subdivisions carried out during adjudication by ABIDAN NDIGA NJURI, that there is no time that the petitioner ever lodged an objection against ABIDAN NDIGA NJURI in respect to land parcel 413 Gatua adjudication section.

iii) That the petitioner’s averments at paragraph 16 of the amended petition are misconceived and incompetent given that the petitioner’s land LR; MUTHAMBI/GATUA/572 is not to be found on sheet number 7 rather it is on sheet no. 1 and for sure LR; MUTHAMBI/GATUA/572 cannot be found in sheet no. 1 and sheet no. 7 at the same time and with the same acreage. That if the 1st and 2nd respondents subdivided the petitioner’s land and gave it away as deposed in paragraph 17 of the amended petition then such land was not LR; MUTHAMBI/GATUA/413, 1840, 1841 and / or 386.

iv) That the petitioner is conceding that LR; MUTHAMBI/GATUA/572 is not on the ground in map sheet no. 1 but the petitioner is economical with the truth in that he does not tell the court hat his land LR; MUTHAMBI/GATUA/572 is in map sheet no. 1 both on the map and on the ground and as I have pointed out the petitioner cannot be seen to be having his land with the same registration number in different map sheets.

v) The deponent denied the particulars of fraud and proceeded to say that it is the petitioner who wants to reap from where he has not planted.

vi) That the amended petition is time barred by dint of section 7 of law of limitation of actions act CAP 22 laws of Kenya granted that a period in excess of 12 years are over from the time the cause of action arose if any.

vii) The deponent concluded the answer to petition on his behalf and that of the 5th, 6th and 7th respondents by praying that the petition be dismissed with costs.

5. That on 7th February, 2018 the matter was before court for directions. The court directed that the petition be canvassed by way of written submissions hence these submissions.

6. Your lordship the issues for determination in our humble view include but are not limited to the following;

(a) Whether the petition is time barred courtesy of section 7 of the limitation of actions act CAP 22 laws of Kenya?

(b) Whether the petitioner’s land parcel LR: MUTHAMBI/GATUA/572 is intact?

(c ) Whether the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 is the same as land parcel LR; MUTHAMBI/GATUA/413?

(d) Whether land parcel LR; MUTHAMBI/GATUA/386 was part of LR; MUTHAMBI/GATUA/413 and whether its origins can be traced from LR; MUTHAMBI/GATUA/572?

(e) Whether the 5th to 8th respondents got any land from the 1st, 2nd and 3rd respondents which such land belonged to the petitioner?

(f) Whether the 5th to 8th respondents have deprived the petitioner of his land and denied him his right to own property in contravention to the constitution?

(g) Whether the petitioner is entitled to the prayers sought?

(h) Who should pay the cost of this suit?

7. Your lordship we shall now try to analyze the evidence contained in the affidavits of the litigants in bid to answer the issues of determination posted by the 5th to 8th respondents in paragraph 6 herein above.

a) The first question by these proceedings in our humble view is whether the petition is time barred? Our answer to this question is in the affirmative. It is the petitioner’s averments that he purchased land parcel LR; MUTHAMBI/GATUA/572 in 1969 FROM M’RACHI IRAITHE. If (as the petitioner is persuading this court to believe) the 1st to 4th respondents alienated his land and gave it to the 5th to 8th respondents back in 1969. The respondents (although we deny this fact vehemently) have been sitting, occupying and making use of the petitioner’s land for a period in excess of 48 years. For the last 48 years the petitioner has been sitting on his right to own land. Section 7 of the limitation of actions act CAP 22 Laws of Kenya prohibits claim on land after the expiry of twelve years. The said section provides, 7 “an action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action occurred to him or, if it first accrued to some person through whom he claims, to that person.” By operation of this section the petitioner’s petition should fail for being incompetent ab initio.

b) The next issue for determination in these proceedings is whether the petitioner’s celebrated land parcel LR; MUTHAMBI/GATUA/572 is intact or it was at one time during adjudication alienated by the 1st, 2nd and 3rd respondents, subdivided and transferred to the 5th to 8th respondents. The answer to this question is a strong no. the 5th to 8th respondents have no issues as to whether indeed the petitioner purchased land measuring 6. 80 acres from one M’RACHI KIRAITHE. They also do not have issue as to whether the said M’RACHI KIRAITHE refused to give him land and the petitioner sued him vide CHUKA D.M’S COURT CIVIL CASE NO. 45 of 1972 and the court ordered M’RACHI KIRAITHE to transfer the land to the petitioner. Our main question is how does one prove the existence and ownership of a registered land parcel? The official way of proving ownership of land is by reaching (sic) a copy of register and if that is not enough an official search of the land under reference will show who the owner of the land is. In the answer to petition at paragraph 12 (vi) the deponent has attached a copy of register and an official search in respect of land parcel LR: MUTHAMBI/GATUA/572. The land is to be found in sheet No.1. The first entry in the copy of register is that of the petitioner and it does not show any subdivision. No other person has that land. The official registered proprietor of LR; MUTHAMBI/GATUA/572 is ELIAS NTWIGA ZAKAYO KIRIKA. The acreage is 0. 34 Ha. How 0. 34 Ha turns to be 6. 80 acres can only be answered by the petitioner. The petitioner’s land is intact and he wants to take other persons’ land which is not acceptable.

(c)

i) Is the petitioner’s land parcel LR; MUTHAMBI/GATUA/572 the same as land parcel LR; MUTHAMBI/GATUA/413? We submit that the two parcels of land have nothing in common, they have never been the same and none is a subdivision of the other. These are land parcels belonging to different persons and with different origins.

ii) Land parcel LR; MUTHAMBI/GATUA/572 belongs to the petitioner. The 5th to 8th respondents cannot tell the correctness of the petitioner’s averments that he bought 6. 80 acres from one M’RACHI KIRAITHE and which land was delineated as LR; MUTHAMBI/GATUA/572. The 5th to 8th respondents were not privy to the purchase. The 5th to 8th respondents were not privy to the suit in court or any transactions that followed after the petitioner purchased the land from M’RACHI KIRAITHE. Simply they are strangers to those allegations and the burden of prove (sic) is to the petitioner. As we have pointed out supla (sic) the petitioner’s land parcel from wherever he got it from is still intact and one wonders why he is shying away from his own land which is registered under his name and there is humble evidence to show that he is the registered proprietor.

(iii) That land parcel LR; MUTHAMBI/GATUA/413 is ancestral land on the part of the 6th, 7th and 8th respondents. The land belonged to their father one ABIDAN NDIGA NJURI. He caused the adjudication of the said land and during adjudication his land was demarcated into three parcels LR; MUTHAMBI/GATUA/413, 1840 and 1841. He then transferred land parcel LR; MUTHAMBI/GATUA/413 to BONIFACE MBAE ABIDAN (8th respondent), LR; MUTHAMBI/GATUA/1840 to ANDERSON MIRITI ABIDAN (7th respondent) and LR; MUTHAMBI/GATUA/1841 to JACKSON IRERI ABIDAN (6th respondent). The court should note that the petitioner was nowhere to object to the demarcation of land parcel LR; MUTHAMBI/GATUA/413 and the transfer. Simply there are no annextures to LR; MUTHAMBI/GATUA/413 belonging to the father of the 6th, 7th and 8th respondents and LR; MUTHAMBI/GATUA/572 belonging to the petitioner. In the answer to amended petition the deponent therein deposes that the petitioner purchased his land from one M’RACHI KIRAITHE at a place known as Gaketha village. On the other hand LR; MUTHAMBI/GATUA/413, 184 and 1841 are situated at Ituntu village. The two areas are separated by a distance of 15 kilometers or thereabout. There was no way the petitioner could buy land at Gaketha and have it placed on some other people’s land 15 kilometers away. The petition is a figment of the petitioner’s imagination. Land parcels LR; MUTHAMBI/GATUA/413, 1841 and 1842 have an acreage of 4. 27 acreas. The petitioner alleged that he bought 6. 80 acres. The sizes do not add up to the petitioner’s allegations.

8. The petitioner’s mention of land parcel LR; MUTHAMBI/GATUA/386 as part of his land LR; MUTHAMBI/GATUA/572 is unfortunate. In the first instance LR; MUTHAMBI/GATUA/386 is not a subdivision of LR; MUTHAMBI/GATUA/413. There is no time that LR; MUTHAMBI/GATUA/386 belonged to the father of the 6th 7th and 8th respondents. This is a parcel of land that stood distinctly during adjudication. We submit that the land belonged to M’MURIANKI KONDO the father of the 5th respondent. The 5th respondent is not a relative of the 6th, 7th and the respondents, the said MURIANKI KONDO caused the demarcation of LR; MUTHAMBI/GATUA/386 and transferred it to the 5th respondent. That land parcel LR; MUTHAMBI/GATUA/386 is ancestral land for the family of M’MURIANKI M’KONDO with nothing to do with M’RACHI KIRAITHE from whom the petitioner purports to have bought land from. That land parcel LR; MUTHAMBI/GATUA/386 is ancestral land and M’MURIANKI M’KONDO never sold any part thereof let alone to the petitioner. That LR; MUTHAMBI/GATUA/386 was a direct transfer from M’MURIANKI M’KONDO to one of his sons ANDERSON NJAGI M’MURINAKI the 5th respondent. It is for the foregoing reason that we are submitting that the petitioner does not have any known interest over land parcels LR; MUTHAMBI/GATUA/413, 1840, 1841 and 386. Even though the doctrine of tracing these parcels of land cannot be traced to LR; MUTHAMBI/GATUA/572.

9. There is no doubt that the petitioner’s land parcel is both on the ground and on the map on sheet number 1. On sheet no. 7 (and this is conceded by the petitioner) land parcel LR; MUTHAMBI/GATUA/572 is only to be found on the map but not on the ground. There is no way, we submit, a land parcel can be on two different sheet maps with the same acreage. The petitioner’s land is on sheet number 1and not sheet number 7 granted that on sheet number 7 the land is not on the ground. In any event a map is not a final determining factor over the size and position of the land on the ground. The petitioner’s land is intact as submitted and he should not be allowed to use an error in a map to have his land located on another person’s land parcel so that the two overlaps (sic). The petitioner should be contended (sic) with his land as it is and wherever it is and this is clear on map sheet number 1 and on the ground.

10. Did the 5th to 8th respondents get any land from the 1st, 2nd and 3rd respondents that belonged to the petitioner? The answer to this question is in the negative. The petitioner has proved no evidence to prove his allegations in the petition. The petitioner has not supported his allegations by any documentary evidence. The onus of proving the petitioner’s allegations is wholly and squarely on his shoulders. We submit that in the balance of probability the petitioner has not established or proved his case against the respondents and in particular 5th to 8th respondents. Having not proved his case substantive justice of this case demand that the petitioner’s petition be dismissed with cost to the 5th to 8th respondents.

11. Your lordship we had a chance of going through the petitioner’s submissions. Of interest in the submissions is that the petitioner mentions of a sale of land between himself and one M’RACHI KIRAITHE. The petitioner also talks of a suit to wit CHUKA D.M. C.C. NO. 45 OF 1972 where the petitioner had sued the said M’RACHI KIRAITHE over land the petitioner refers to as plot no. LR; MUTHAMBI/GATUA/572. The petitioner has deliberately omitted the mention of land parcel LR; MWIMBI/MURUGI/572 which is registered in his name and which appears in sheet number 1. The 5th to 8th respondents have attached a copy of register and official search which clearly shows that the petitioner’s land is there and intact. It is quite funny that he petitioner sticks on land parcel LR; MUTHAMBI/GATUA/572 which appears on the map but not on the ground.

12. Your lordship for the foregoing arguments and submissions we urge the court to dismiss the petition with costs to the 5th to 8th respondents.

13. We rest our submissions and pray.

DATED AT CHUKA THIS 13TH DAY OF FEBRUARY, 2018

I.C. MUGO & CO. ADVOCATES

FOR THE 5TH TO 8TH RESPONDENTS

6. The submissions of the 1st to 5th respondents are reproduced herebelow in full without any erasures:

1ST –4TH RESPONDENT’S SUBMISSIONS

May it please Your Lordship.

On behalf of the 1st – 4th respondents, we submit as follows on the amended petition dated 19th October, 2017. We rely on our grounds of opposition dated 6th March, 2018

Your Lordship, the petition herein is not well grounded in law, as there is no evidence to demonstrate the description of the suit property. A close examination of the supporting affidavit dated 5th July 2017 as well as the further supporting affidavit dated 5th June, 2017 confirms this (sic) submissions.

The petitioner has deponed at length that on the process of how he came to own the suit property. It’s not clearly stated where the suit property is placed on the ground, the objection proceedings does (sic) not give evidence on whether implementation was effected or even the actual acreage of the suit property.

We submit that the petitioner ought to have annexed a document on the confirmation of ownership of the suit property. A map would suffice. This information is critical for description of the suit property and also to enable examine and evaluate the scope of infringement.

Your Lordship, we further submit that the petitioner on his own admission indicates that the seller had refused to transfer the suit property to him. It would have been expected of him to seek and / or obtain orders of implementation of the transfer. This reinforces our other ground of opposition that the petitioner is indolent. Public policy and interest of justice requires that a person with any legal claim to be vigilant with a view of asserting the claim with the risk of delay creating further legal complications such as the ones at hand in this petition.

Your lordship, the prayers sought also indicate a variance between what should have first been sought is the cancellation of the titles that are in the names of the 5th to 7th respondents as he alleges which affected his portion of land and deprived him right to property. The petitioner herein only seeks for a constitutional declaration that he is the lawful owner of the suit land.

Your Lordship on our final ground of opposition we submit that the petitioner’s claims in the petition lack particularity and are full of conjecture with no evidential basis of where the original suit land was placed thus it is not possible to currently ascertain where it should be plotted on the ground. A survey report of the ground is very critical for conclusive determination of the issues. That has not been placed on record. The court is thus left to speculate where the suit land was originally placed.

Your Lordship, in conclusion we submit that the petitioner has not proved that there was an infringement on his right by the 1st to 4th respondents. The respondent thus pray that you do find that this petition is unmerited and dismiss it with cost to the 1st to 4th respondents.

This is our humble submission and prayer.

We so pray.

DATED AT MERU THIS 6TH DAY OF MARCH, 2018

J. M. KIONGO

SENIOR LITIGATION COUNSEL,

FOR: HON. ATTORNEY GENERAL

& DEPARTMENT OF JUSTICE.

7. Contemporaneously with the filing of their submissions, the 1st to 4th Respondents filed grounds of opposition which were in the following form

GROUNDS OF OPPOSITION

TAKE NOTICE that the 1st to 4th Respondents shall at the hearing of the amended petition 19th October, 2017 oppose the same on the following grounds:

1. That the petition herein is not well grounded in law as there is no evidence to demonstrate the description of the suit property.

2. That the petitioner has been indolent and it is not in the interest of justice to interfere with the indefeasible titles existing.

3. That the petitioners claim is full of conjecture and devoid of particularity sufficient for its disposal.

4. That the petition is defective and an abuse of court process.

DATED AT MERU 6TH THIS DAY OF MARCH, 2018

J. M. KIONGO

SENIOR LITIGATION COUNSEL,

FOR: HON. ATTORNEY GENERAL &

DEPARTMENT OF JUSTICE

8. The petitioner filed further submissions which are reproduced herebelow in full without any erasures or additions:

PETITIONER’S FURTHER SUBMISSIONS IN REPLY TO THE SUBMISSIONS BY THE RESPONDENTS (EXACTLY IN HIS OWN WORDS)

Your Lordship contrary to the submissions by the 1st – 5th respondents the petition herein is well grounded in law. The property is property described at paragraph 5 of the supporting affidavit to the petition before amendment as Land parcel/ 572 MUTHAMBI/GATUA the land was 6. 8 Acres. During land consolation the land was transferred into two portions being one portion measuring 5. 9 Acres in sheet 7 MUTHAMBI/GATUA and the other portion was transferred to sheet 1 being 0. 34 Ha MUTHAMBI/GATUA.

Further after I had sued M’RACHI KIRAITHE at the CHUKA law courts vide Civil Suit No. 45 of 1972 he transferred into my names the suit land vide objection NO. 311 of 1980. This is contrary to what the submissions of the 1st – 5th respondent in their submission have stated. It is therefore clear that the petitioner has never been indolent at all but has been vigilant.

We submit your lordship that the petitioner’s right to property was violated because out of his 6. 9 acres he was only registered as the proprietor of LR NO. MUTHAMBI/GATUA/572 measuring approximately 0. 34 Ha or 0. 84 Acres measuring the (sic) he lost a total of 6. 06 Acres.

Your lordship we submit that petition herein is not time barred as alleged since the petitioner only realized that he had lost his land when he went to get the title deed of his land in the year 2005 since the land consolidation process was on going. We submit further that the land was transferred from GAKETHA to GATUNTUNE 5. 9 Acres and 0. 34 Ha Nithi valley.

The father of the 6th, 7th and 8th respondent one ABIDAN NDIGA was a committee member of the land consolidation team and he is the one who corrupted the process.

It is clear that the land office had not demarcated the land on the ground but only did this after 2005 after titles had been issued.

After I had launched my complaint to the director of adjudication he visited the ground and noted that parcel numbers MUTHAMBI/GATUA/572 had been duplicated in to map sheet 1 and sheet 7, there are abnormalities that have not been explained. Attached are the said letters and maps.

We submit further your lordship that the petitioner’s rights were clearly violated and we urge you to allow the petition as drawn.

DATED AT CHUKA THIS 9TH DAY OF MARCH, 2018

ELIAS NTWIGA

9. I find the issues for determination straight forward. They are:

a) Is there a nexus between parcel No. MUTHAMBI/GATUA/572 which the appellant claims was taken away by the 5th to 8th respondents AND parcel No. MUTHAMBI/GATUA, which the 6th to 8th Respondents claim is their ancestral land which was bequeathed to them by their father Abidan Ndiga Njuri?

b) Was the petitioner deprived of his land by the respondents?

c) Who will bear the costs?

10. At the onset, I find the petitioner to be veritably economical with the truth. At the end of his submissions he says that his petition should be allowed as the respondents had not filed any responses in opposition to it. There can be nothing further from the truth. It is pellucid from the filings made by the respondents that they have robustly opposed the petition.

11. The petitioner has averred in his petition that he had bought his land from one M’Rachi Kiraithe in the year 1969 and that after M’Rachi Kiraithe had refused to transfer the land to him, he had filed a suit at Chuka, to wit, Chuka District Magistrate’s Court Civil Case Number 45/1972. He avers in paragraph 12 of his petition that a judgment was delivered in his favour and that M’Raichi Kiraithe was ordered to transfer the land in dispute to him.

12. Once again, the petitioner comes out as an incorrigibly dishonest litigant. It is clear from his filings that he had filed case No. 45 of 1972 at Chuka District Magistrate’s Court against one M’Rachi Kiraithe. His claim was for Kshs.582/= which he claimed that he had paid to the defendant in a land sale gone sour. The court’s proceedings are veritably succinct and it is easy to reproduce them herebelow:

“3. 5.72: Plaintiff present and unrepresented

Defendant present and unrepresented

The plaint read and explained to the defendant

DEFENDANT

I admit that I owe him Kshs.582/= and I shall pay him.

JUDGMENT

On his own admission the defendant is to pay to the plaintiff

Kshs.582/= or land plus costs of the suit.”

13. The court was equivocal. It never expressly ordered the defendant M’Rachi Kiraithe to transfer land to the petitioner. The size of the apposite land is also not particularized.

14. Even assuming that the defendant transferred land to him, was it the land he was claiming from the 5th to 8th respondents. I am persuaded that it is not. The petitioner has not controverted that the land occupied by the respondents is ancestral land. The land they occupy was derived from Land Parcel No. MUTHAMBI/GATUA/413. The land he claims is MUTHAMBI/GATUA/572. I find that the two parcels of land have no probative nexus.

15. The petitioner does not dispute that parcel No. MUTHAMBI/GATUA/572 appeared in 2 sheets, number 1 and number 7. He also admits that it does not exist on the ground although it appears on the apposite map. To me this was a clear mistake made innocently by the concerned officers.

16. I do find that the petitioner has been indolent. He did not object during the adjudication process to the allocation of Land Parcel No. MUTHAMBI/GATUA/413 to Abidan Ndiga Njuri, the father of the 6th to 8th respondents. I opine that the petitioner is abusing the court process by trying to benefit from the mistaken inclusion of Land Parcel No. MUTHAMBI/GATUA/572 in two map sheets, to wit, numbers 1 and 7.

17. I find that the issues canvassed by the petitioner do not qualify to be constitutional issues. The land he is claiming to be his has not been ascertained to be his through the process envisaged by the Land Adjudication Act and by the Land Consolidation Act. In other words his claim is for inchoate rights.

18. Article 61 (2) pellucidly recognizes land to be public, community or private. The petitioner is not claiming public or community land. He is, by deduction, claiming enforcement of his right to private land. And yet the process that ascertains ownership of private land in the area where the land he is claiming is situated has not declared the land he claims to be his.

19. I agree with the advocates representing the 5th to 8th respondents that the petitioner’s claim is time barred by dint of the provision contained in section 7 of the Limitation of Actions Act.

20. In the circumstances, I find that this petition lacks merit.

21. This petition is hereby dismissed.

22. Costs will follow the event and are awarded to the respondents.

23. It is so ordered.

Delivered in open Court at Chuka this 25th day of July, 2018 in the presence of:

CA: Ndegwa

Elias Ntwiga – Petitioner

I.C. Mugo for 5th to 8th Respondents

AG absent for 1st to 3rd Respondents

P.M. NJOROGE

JUDGE