[2004] KEHC 2174 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI CIVIL CASE NO. 1756 OF 2002

FELISTER NJOKI MUNGAI ………………….. PLAINTIFF

VERSUS

KIAMBU COUNTY COUNCIL ……………........DEFENDANT

JUDGMENT

This suit was filed on 27th November 2002 by the plaintiff Felista Njoki Mungai against the Kiambu County Council. In it the plaintiff is seeking, inter alia

a) A permanent injunction to issue restraining the Defendant from trespassing, disposing off or i n any other way interfering with Plot No. Ndumberi/Riabai/274

b) A declaration that she is the owner or legal allotee of the said plot

c) An order directing the Defendant to retransfer the plot in the name of the plaintiff and if necessary have the Deputy Registrar of the High Court sign necessary transfer documents.

The plaintiff also asks for costs of the suit with interest at court rates and any other relief the court may deem fit to grant

. The Defendant never entered appearance in the suit. Nor did the defendant file a defence to the same, leading to the plaintiff applying for and obtaining from this court an interlocutor judgment against the Defendant. The said judgment was entered on 3rd February 2003. Additionally the plaintiff had on 11th December 2002 obtained a Temporary Injunction against the Defendant restraining it from “transferring, trespassing, disposing of or in any way interfering with the plot pending the hearing and determination of the suit”.

Having obtained an interlocutory judgment as stated earlier, the plaintiff had the suit listed for formal proof and appeared before me on 22nd January 2004. The plaintiff testified orally and did not call any witnesses. In her testimony she said she has lived on the plot in question since 1984 but that it originally bore the number Ndumberi/Riabai/T.230 which was later changed to Ndumberi/Riabai/274. She further stated that sometime in November 2000 the plaintiff was issued with a Title Deed to this plot and also as owner in the proprietorship section. The plaintiff confused the court as to whether it is the plot number that changed or she is the one who moved from original plot T.230 to T.274. She claims to have returned the Title Deed (again I am not sure to which plot number) to the Defendant at their request and on the pretext that she would be issued with another one. She did not produce a copy of the said Title Deed or a note of some sort to prove its existence or retrieval by the Defendant. She however produced as evidence in support of her claim a certified copy of what is called a ‘Green Card’ opened on 17th April 1959 in respect of parcel No. NDUMBERI/RIABAI/T.284 which if we go by part of her evidence did not exist prior to the events of November 2000. Entry Number 1 in the said card shows the Native Land Trustee Board as the registered proprietor in an entry made on 17. 4.59. Entry No.2 made on 30. 11. 2000 shows Felista Njoki Mungai as the registered proprietor and Entry No.3 made on the same date, 30. 11. 00 shows that a Title Deed was issued. What I find most interesting concerning this card is the entry No.4 which is shown to have been made on the same date i.e. 30th November 2000 and which reads “Entry No. 2 & 3 above E.I.E. (Cancelled). No signature appears on the part reserved for the Registrar’s signature and no stamp was affixed to confirm that all these entries were actually those of the authorized person. The form however bears a certificate of authenticity dated 21st November 2002. The plaintiff’s claim is that her name in the register has been fraudulently removed or deleted and her title deed fraudulently cancelled. Her oral evidence was so brief and so vague that I have had to rely on the pleadings and court records to understand her claim. Her counsel chose not to make any submissions and relied entirely on the plaintiff’s oral evidence, the pleadings and the one exhibit.

According to the plaint the plaintiff has been in occupation of the plot since 1984 but that the same initially bore the number T. 230. She also said in her oral evidence (and I quote) “The number changed but the plot remained the same”. In paragraph 5 to 7 of her plaint the plaintiff states that sometime in the year 2001, owing to a dispute between the Defendant and Ndumberi Dairy Farmers Cooperative Society over the plot the Defendant agreed to transfer to the plaintiff Plot No. NDUMBERI/RIABAI/T.274in exchange for NDUMBERI/RIABAI/T230. Paragraph 7 of the plaint states that the transfer took place on 30th November 2002 and a Title Deed issued in her name on the same day. This clearly contradicts the dates on the green card on which she relies for support. In paragraph 8 of the plaint the plaintiff alleges that she made an official search in respect of the plot and discovered that that her name had been cancelled and/or deleted from the register. It is interesting to note that the said search was done about one week prior to the filing of this suit and before the date alleged in the plaint to have been the date the Title Deed was issued. My temptation to think that 30th November 2002 was a typographical error was defeated by my discovery that the same date is given in the Chamber Summons dated 27th November 2002 in which a Temporary Injunction was issued against the Defendant. There has been no application made to amend the pleadings and the record remains.

Turning to the exhibit, I am unable to say why the green card is silent on the existence of the original Plot No. T.230 if indeed it relates to the plot the plaintiff has occupied since 1984. In her oral evidence she says only the number changed. Yet again in paragraph 6 of the plaint she states she was issued with another transfer “in exchange” being the effective words. It can either be one or the other.

The plaintiff has not provided the court with any other evidence oral or otherwise concerning the allotment and Transfers such as monies paid, rates, agreements etc. As earlier mentioned, all the entries shown on the green card bear the same date, that is 30th November 2000, including the entry No. 4 which cancels entries 2 and 3. Unless the plaintiff had a previous card showing No. 2 and 3 without entry number 4 it would seem no entry of her name or the Title Deed allegedly issued to her ever existed since the same were made. In the absence of the Title Deed or some better evidence of ownership or allotment I am unable to uphold the plaintiff’s claim of ownership. She has not proved the alleged fraud. She has not proved any threat to her possession of the plot either. I find the “Green Card” itself suspect in all respects. Her evidence is contradictory and totally unconvincing and the pleadings do not help at all to prove that she ever had any ownership of the plot or that the same has been taken away or is under threat of being taken away through fraud or otherwise. For the above reasons I find that the formal proof fails. The interlocutory judgment herein notwithstanding the plaintiff is under a duty which she has not discharged.

Consequently the interlocutory judgment together with the Temporary injunction are hereby abated. The suit is dismissed with no order as to costs.

DATED, SIGNED AND

DELIVERED At Nairobi this 6th day of February 2004.

M.G. Mugo

Ag. Judge

6. 2.2004