[2021] KEELC 4590 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 117 OF 2011

(FORMERLY H.C.C.C NO. 710 of 1997 NAIROBI)

GEOFFREY KANU KINYUA..................................PLAINTIFF

VERSUS

1. COMMISIONER OF LANDS

2. LAND REGISTRAR KILIFI

3. THE HONOURABLE ATTORNEY GENERAL

4. JAMES NJENGA

5. SAMMY MWAITA

6. TAIWA AGENCIES LIMITED

7. DINAH CHELAL

8. A. SHARIFF

9. C.W. NGATIA

10. PRINCIPAL REGISTRAR OF TITLES

11. REGISTRAR OF TITTLES MOMBASA

12. DIRECTOR OF SURVEYS.......................................DEFENDANTS

JUDGMENT

BACKGROUND

1. This suit was initially filed as Nairobi HCCC No. 710 of 1997. The record is not clear how and when the matter came to be transferred to Malindi. What was clear was that when the file landed at Malindi some 14 years after it was instituted in Nairobi, it was assigned its current number- Malindi HCCC No. 117 of 2011.

2. By his Plaint dated 24th March 1997 as amended at Nairobi on 25th November 2002, Geoffrey Kanu Kinyua (the Plaintiff) prays for Judgment against the 12 Defendants jointly and severally for orders framed as follows: -

1. A declaration that the area where the suit lands LR Kilifi/Chembe/Kibabamshe/362 and 420 are situated has at all material times before 1. 6.1963 been private land under the sovereignty of the Sultan of Zanzibar and after 1. 6.1993 been Trust Land before adjudication and registration under Registered Land Act Cap 300 in accordance with LN 718 of 1963 Second Schedule Section 208 and the Constitution of Kenya Act No. 5 of 1969 Second Schedule Section 114, 115 and 116 of (the) Laws of Kenya took place on 30/5/1978.

a) A declaration Judgment that the Land Adjudication Officer’s Court of exclusive jurisdiction under (the) Land Adjudication Act Cap 284 did on 28. 5.1978 in determining the Objection or case filed in accordance with (the) Land Adjudication Act Cap 284 Section 26 rule that land in LR Kilifi/Chembe Kibabamshe, Kilifi Jimba, Kilifi Madeteni and Kilifi Mtondia Roka Section was at all material times from time immemorial to 31. 5.1963 held under native title and sovereignty of the Sultan of Zanzibar and from 1. 6.1963 it became Trust Land under the Kenya Order in Council 1963 LN 245 of 1963 Sections 6, 193, 194 and 198 (now revoked) and from 12. 12. 1963 all those areas of Kilifi Coastline became Trust Land under Kenya Independence Order in Council 1963, LN 718 of 1963 Sections 19, 203, and 208 and from 1969 the area became Trust land under the provisions of the Constitution of Kenya Act No. 5 of 1969 Second Schedule Sections 114, 715 and 116 and the said land remained so until when they were adjudicated in accordance with the provisions of the Constitution of Kenya Section 116 under Land Adjudication Act, Cap 284 when the individual parcel after registration under the provisions of Registered Land Act Cap 300 became private land.

b) A declaration Judgment that the claim in Commissioner of Lands Circular letter No. 113936/55 dated 28. 5.1986 and in GN No. 2505 of 30. 5.1986 that land in LR Kilifi/Chembe Kibabamshe, Kilifi/Jimba, Kilifi/Madeteni and any other area of former Kilifi District Coast area to be Government land such as Kilifi/Mtondia Roka where the Commissioner of Lands stopped adjudication process are unconstitutional illegal and res judicata the Judgment, ruling and orders of the Land Adjudication Officer’s Court of Exclusive jurisdiction dated 28. 2.1978 which determined by dismissing the DC Kilifi’s objection of adjudication of then Kilifi Coastline on grounds that it was Government land by ruling that there was no Government land along the then Kilifi District Coastline as at 28th February 1978.

c) A declaration Judgment that the area of the then Kilifi District known as Kilifi/Chembe Kibabamshe, Kilifi/Jimba, Kilifi/Madeteni and Kilifi/Mtondia Roka was before application of LN of 155 of 1970 Trust Land in accordance with the Constitution of Kenya Second Schedule Sections 114, 115 and 116 and also LN 718 of 1963 Second Schedule Sections 203 and 208 and the said land is also land referred to by the Constitution of Kenya (Amendment) Act 1964 No. 28 of 1964 Section 20 and it is land referred to by Section 8B of the Government Land Act (Cap) 280 and the application of (the) Land Adjudication Act, Cap 284 vide LN. 155 of 1970 was Constitutional and lawful and the titles registered under the Registered Land Cap 300 were and still are Constitutional and valid inspite of the purported illegal and unconstitutional cancellation on 22. 12. 1986.

2. A declaration that the purported cancellation of the Plaintiffs titles and subsequent purported transfer of the Plaintiff’s titles Kibabamshe/362 and 420 to the Government of Kenya on 22/12/1986 was unconstitutional, illegal and null and void ab initio; permanent injunction to be issued directed to the Defendants, their servants and/or agents barring them from interfering with the Plaintiff’s title LR No. Kilifi/Chembe Kibabamshe/361 and 420.

3. A declaration that all transactions in respect of the suitlands LR Kilifi/Chembe Kibabamshe/362 and 420 from 22/12/1986 was unconstitutional, illegal and null and void ab initio and the said transactions from 22. 12. 1986 conveyed no Constitutional land rights and by their cancellation the holders lose nothing; the Vendors and their privies are bound by Judgment against the Vendor.

4. An order directed to the Land Registrar Kilifi, the 2nd Defendant; Chief Land Registrar and Registrar of Titles Mombasa, their servants and/or agents to rectify the Land Register by cancelling all registrations from 22. 12. 1986 to date of Judgment and Orders and re-register the Plaintiffs as the sole proprietor of the suitlands LR Kilifi/Chembe/Kibabamshe/362 and 420 from the time they were registered under (the) Registered Land Act Cap 300 on 30. 5.1978 throughout to the date of Judgment and thereafter in future unless lawfully transferred by the Plaintiff.

5. The Plaintiff to be paid full value of the suitlands plus interest at Commercial Bank overdraft rates of interest at 35% p.a from 22. 12. 1986, 28. 5.1986 (sic) calculated on monthly rates and general and punitive or exemplary damages quantum to be determined by the Court from 22. 12. 1986, 28. 5.1986 sic to the time of full payment.

6. Costs of this suit plus and interest (sic) at Commercial Bank overdraft rates of 35% p.a 25% (sic) from the date of filing this suit based on the value of Kshs 5,000,000/- per acre.

3. Those numerous prayers arise from the Plaintiff’s contention that he is in occupation and was at all times material the registered proprietor of the two parcels of land. On or about 22nd December 1986, the 2nd Defendant acting under the instructions of the 4th Defendant purported to cancel the said registration and to register the Government of Kenya as the proprietor thereof.

4. The Plaintiff avers that the area where the suitlands are situated has always been Trust land and that at no time whatsoever did the same become Crown or Government land. He asserts that he purchased the suitland from the native title holder after the said title holder was adjudicated the same under the Land Adjudication Act. On 28th February 1978, the Land Adjudication Officer’s Court of Exclusive jurisdiction had ruled that there was no Government Land in the area and no appeal was preferred against the said decision.

5. He avers that the purported cancellation of his titles without any due process amounts to deprivation by the Government of his properties contrary to Section 75 of the repealed Constitution. He asserts that he is entitled to compensation for none use of the land and also for the difference of costs of development projects which he was to carry out in 1986-87 until the date of Judgment.

6. By a Memorandum of Appearance dated 13th June 2003, the Honourable the Attorney General entered appearance for the Commissioner of Lands, the Land Registrar Kilifi, the Attorney General himself, one James Njenga, one A. Sharrif, and one CW Ngatia, (all sued herein respectively as the 1st, 2nd, 3rd, 4th, 8th and 9th Defendants). I was however unable to find any Statement of Defence filed by the Honourable the Attorney General on behalf of the said parties.

7. Messrs Taiwa Agencies, Dinah Chelal, the Principal Registrar of Titles, the Registrar of Titles Mombasa and the Director of Survey sued herein respectively as the 6th, 7th, 10th, 11th and 12th Defendants respectively, neither entered appearance nor filed a Statement of Defence.

The Plaintiff’s Case

8. At the trial herein, the Plaintiff testified as the sole witness in his case. None of the 12 Defendants listed herein called any witnesses to testify in support of their respective positions.

9. PW1- Geoffrey Kanu Kinyua is the Plaintiff. He told the Court he is the registered proprietor of the parcels of land known as Chembe/Kibabamshe/362 and 420. He further told the Court he had acquired the properties through the process of adjudication and was issued with title deeds by the 2nd Defendant on 15th June 1978.

10. PW1 testified that upon acquiring the two properties, he embarked on a process of developing the same. On 11th March 1983, he charged the properties to Habib Bank A-G Zurich for a loan of Kshs 750,000/-. However, on 30th May 1986, the 4th Defendant vide Gazette Notice No. 2505 purported to cancel all the titles within Chembe/Kibabamshe, Kilifi/Jimba, Kilifi/Madeteni, Kakuyuni/Madunguni and Kilifi/Matsangoni of Kilifi District where the two properties are situated.

11. DW1 further testified that due to the Defendants unlawful actions, he had been denied the right of access and use of his properties and he was therefore unable to develop the same in accordance with his development plan for which he had procured a bank loan to service.

12. PW1 urged the Court to find that his rights had been violated and to compensate him as per a consent order he had previously entered with the Honourable the Attorney General on 7th April 2003 and or as per a Judgment delivered in Nairobi HCCC No. 3106 of 1997 on 31st March 2009 which he termed as the test suit.

13. PW1 further told the Court he settled the loan with Habib Bank A-G Zurich and that the Bank gave him a duly executed discharge of charge dated 20th September 1990. When he presented the discharge at the Kilifi Lands Registry, he was informed by the Land Registrar that the Register for the suit properties was taken to Nairobi under the Orders of the Chief Land Registrar and that therefore the discharge could not be effected until the register was returned to Kilifi.

14. PW1 told the Court that to-date that register has not been availed to enable him register the discharge on the title.

15. On cross-examination by Ms Lutta Learned State Counsel for the A-G, PW1 told the Court that when he presented the discharge to the Land Registry, he was told those titles nolonger exist. That was around 3rd October 1990 but there was no official communication to that effect. He further told the Court that though he had been in possession of the properties since 1978, he had not developed them as he had no title.

16. PW1 further told the Court that he had purchased the properties from the registered owner at the time, one Nyau Wanje. PW1 told the Court they had a Sale Agreement with the Vendor but the same was retained by the Land Adjudication Committee and hence he did not have a copy thereof. He further told the Court he had nothing to show that the transfer fees were paid as everything was done through the Land Adjudication Committee.

17. PW1 testified that he knew the titles were cancelled because there was a Kenya Gazette Notice No. 2505 published in 1986. He conceded that the notice only gave an intention to cancel and that it was true the owners of the listed parcels were required to visit the office of the Commissioner for Lands. PW1 further told the Court he collected his letter as advised and responded telling the Commissioner he had not stolen anybody’s land. He did not however have a copy of that response.

18. PW1 further testified that he initially wanted his land back but had now changed his mind and now only sought compensation. He told the Court they had been unable to carry out a search on the properties but it was not possible to access the titles. He told the Court he was seeking compensation because other titles had been issued. He further told the Court the figures he sought as compesation were based on a valuation he had done in the properties.

Analysis and Determination

19. I have perused and considered the pleadings filed herein, the sole testimony of the Plaintiff and the evidence adduced at the trial. I have similarly perused the rival submissions and authorities as placed before me by the Learned Counsel for the Plaintiff and the response thereto by the Honourable the Attorney General.

20. At the very onset, let me say that I found the Plaintiffs pleadings, and more particularly the prayers in the amended Plaint dated 25th November 2002 rather unwieldy and unnecessarily verbose. The fundamental rules of pleadings used to require that pleadings should only state the facts and not the law. Those facts ought to be material and should not state the evidence. More particularly those facts and the prayers sought should be in a concise and precise form. The pleadings filed herein by the Plaintiff, which happen to be the only pleadings filed in this old matter, have woefully fallen short of those rules and principles.

21. From what I could discern from them, the Plaintiff is seeking a declaration that the area where the subject properties- Kilifi/Chembe Kibabamshe/362 and 420, are situated is trust land and not Government land. On that account he also prays for a declaration that the Gazette Notice No. 2505 of 30th May 1986 as issued by the then Commissioner of Lands (the 1st Defendant) is unconstitutional and illegal and that the same is hence null and voidab initio.

22. The Plaintiff further prays for a declaration that his titles are lawful and proper and that this Court should accordingly direct the Land Registrar Kilifi (the 2nd Defendant) to rectify the land register by cancelling any registrations made thereon between 22nd December 1986 until the date of this Judgment, The Plaintiff also asks to be paid the full value of the suitlands plus interest at what he terms “Commercial Bank overdraft rates” at 35% p.a. from 22nd December 1986. He also craves to be paid general, punitive and exemplary damages as well as costs of the suit plus interest which he asks to be based on the value of the suit properties at the rate of Kshs 5,000,000/- per acre.

23. Testifying in support of his case, the Plaintiff told the Court that he had lawfully purchased the suitlands from the persons who were then registered as the owners thereof under the Land Adjudication Act, Cap 284 of the Laws of Kenya. He produced in this respect the Land Certificates for the said properties issued to him on 15th June 1978.

24. The Plaintiff told the Court that he took possession of the suit properties shortly after acquiring the same and that on or about 3rd August 1983 charged the two properties to Habib Bank A-G Zurich to secure a loan of Kshs 750,000/-. He would proceed to pay the loan in full and was on 20th September 1990 issued with a Discharge of Charge by the Bank.

25. The Plaintiff is however aggrieved that in the meantime, on or about 22nd December 1986, the Land Registrar Kilifi, acting on the instructions of the then Commissioner of Lands James Njenga (the 4th Defendant), purported to cancel the Plaintiff’s registration as the proprietor of the suit properties and instead purported to register the Government of Kenya as the proprietor thereof.

26. It is the Plaintiff’s case that the 2nd and 4th Defendants could not proceed in the manner that they did as the area where the suitlands are situated has always been trust land. The Plaintiff told the Court he had in this respect bought the suit properties from a title holder who had been duly adjudicated the land under the Land Adjudication Act and hence the cancellation of his titles by the Government amounted to deprivation of his properties contrary to the law and the Constitution.

27. From the material placed before me, this suit was precipitated by Gazette Notice No. 2505 published by the 4th Defendant some eleven years before the suit was filed on 30th May 1986. The said Notice issued pursuant to the Government Lands Act, Cap 280 of the Laws of Kenya reads as follows:

“NOTICE TO LAND OWNERS IN KILIFI DISTRICT”

A letter has been sent to the land owners within Chembe/Kibabamshe, Kilifi/Jimba, Kilifi/Madeteni, Kakuyuni/Madunguni, all in Kilifi District, requesting them to respond to the said letter before 31st July 1986 and also requesting them to report to the District Lands Officer, Kilifi District before 31st July 1986. ”

28. In his testimony before this Court, the Plaintiff told the Court that pursuant to the said notice, he visited the Kilifi Land Registry whereat he was issued with the letter referred to. He indeed produced a copy of the letter dated 28th May 1986 authored by the 4th Defendant and copied to the 2nd Defendant. The said letter reads in the relevant part as follows: -

“It has come to light that between 1973 and 1983, a large number of people erroneously claimed land in the above-mentioned areas. You are one of those people as you are occupying plot(s) number(s) (Kilifi/Chembe Kibabamshe/362 and 420). I wish to advise that your occupation of the said land/plot is improper and not in accordance with the law.

Apparently, the Land Adjudication Act, (Cap 284) was erroneously applied to Government Land. This Act only applies to Trust Lands. It could therefore not be used to facilitate your registration as the absolute owner of the said Plot. It follows that in law your registration as the owner of the plot(s) in question was a nullity ab initio and consequently the title you hold in respect thereof is a defective title.

This being the legal position, the Government has decided to cancel your title. To this end, you are requested to report to the Land Registrar Kilifi who shall cancel your defective title and rectify the Register.

I wish, however, to intimate to you that the Government is considering to allocate the piece of land you now occupy to you under the provisions of the Government Lands Act Cap 280. It must however be understood that this shall be on an entirely without prejudice basis and the same shall be done at the full discretion of the Government. If you are in possession of more than one plot in the affected area you will be allocated with only one plot of your choice. The size of the plot to be allocated shall again be at full discretion of the Government.

………”

29. Questioned by Ms Lutta, Learned State Counsel during cross-examination as to what steps he took in response to the letter, the Plaintiff responded that he wrote to the relevant authorities telling them that he had not stolen anybody’s land. The Plaintiff accordingly retained his title deeds which he had used to secure a loan and remained in possession of the suit properties.

30. The Plaintiff told the Court that when he completed repayment of the loan some four years later in 1990, the Bank issued him with a Discharge of Charge dated 20th September 1990. His efforts to register the discharge however failed as he was informed that the Register for the suit properties had been taken to Nairobi on the Orders of the Chief Land Registrar. He told the Court that to-date, that Register has not been availed to enable him register the discharge.

31. In this respect, it was the Plaintiff’s case that he was a bonafide purchaser for value of the suit properties and that as the first registered owner, his title was absolute and indefeasible within the meaning of Sections 14 and 143 of the now repealed Registered Land Act, Cap 300 of the Laws of Kenya. Those provisions as it were, as well as Section 23(1) of the Registration of Titles Act (also now repealed) imported into our law the “Torrens System” of land registration which have since been reproduced under Section 26(1) (a) and (b) of the Land Registration Act, 2012.

32. The Torrens System of land registration recognizes the sanctity of title in this Country such that the title of a registered owner is held to be absolute and indefeasible unless it is shown that the registration was obtained through misrepresentation or fraud and/or that it was obtained through a corrupt scheme to which the registered owner was a party.

33. Re- affirming the applicability of the Torrens System in Kenya in Charles Karaithe Kiarie & 2 Others –vs- Administrators of the Estate of John Wallace Mathare & 5 Others (2013) eKLR, the Court of Appeal observed as follows: -

“The Registration of Titles Act is entirely a product of the Torrens System of registration. The word “Torrens” is derived from Sir Robert Torrens, the third Premier of South Australia and pioneer and author of a simplified system of land transfer which he introduced in 1858. This system emphasizes on the accuracy of the land register which must mirror all currently active registrable interests that affect a particular parcel of land. Government as the keeper of the Master Record of all land and their owners guarantees indefeasibility of all rights and interests shown in the land register against the entire world and in case of loss arising from an error in registration the person affected is guaranteed of government compensation. This statutory presumption of indefeasibility and conclusiveness of title under the Torrens System can be rebutted only by proof of fraud or misrepresentation in which the buyer is himself involved.”

34. Arising from the foregoing, it was apparent that the law is alive to the possibility that an error might occur during the process of registration even under the Torrens System of land registration. Where such an error occurs, the Government as the Keeper of the Master Record is obliged to compensate the affected parties such as the Plaintiff herein.

35. While they did not file any defence before me, it was clear from the impugned Gazette Notice and the 4th Defendant’s letter dated 28th May 1986 that it was the Government’s position that there was an error in the registration where its officers on the ground erroneously applied the Land Adjudication Act to Government Land. The Government sought to remedy this position by summoning the affected parties and rectifying their titles as appropriate.

36. As it turned out, the Plaintiff disregarded the request and refused to surrender his title deeds. While he asserted that his titles were cancelled pursuant to the 4th Defendant’s letter and the impugned Gazette Notice, he conceded during cross- examination that the two merely gave the Government’s intention to cancel the titles but did not in themselves amount to any cancellation.

37. A perusal of the penultimate paragraph of the 4th Defendant’s letter dated 28th May 1986 reveals that the Honourable the Attorney General was to make the necessary application to Court at the default of the Plaintiffs to have the title cancelled. The Plaintiff did not however place any evidence before me to indicate that any such application was made to Court and/or that the titles were subsequently cancelled. On the contrary, it was the Plaintiff’s testimony that the suit properties remained charged to the Bank for another four (4) years until he completed the repayment of the loan he had obtained using the properties as collateral. It was further his testimony that he remains in occupation and possession of the suit properties to-date.

38. Arising from the foregoing, I was unable to see the essence of the Plaintiff’s demand to be compensated at Kshs 5,000,000/- per acre of the suit properties. For one to be entitled to compensation, a party must establish that a right to such a claim exists. In a situation where the Plaintiff remains in occupation and possession of the suit properties, I was not persuaded that a claim for compensation should lie.

39. While the Plaintiff contended that he had prepared development plans to develop the suit properties and that he was prevented from developing the same by the cancellation, he neither produced any plans of the alleged intended construction nor any evidence that he was stopped by anyone from proceeding with the intended development plans. For a claim for compensation to issue, the Claimant must first establish that a right to such a claim exists. That right must be established and demonstrated to exist and the Court must be shown how the right has been contravened or breached to warrant the compensation claimed.

40. In the circumstances of the matter before me, I was not persuaded that the Plaintiff is entitled to any of the declarations and/or other orders sought herein.

41. The Plaintiff’s suit is accordingly dismissed. I make no order as to costs.

Dated, signed and delivered at Malindi this 29th day of January, 2021.

J.O. OLOLA

JUDGE