[2019] KEELC 2649 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO 192 OF 2017

(FORMERLY NAIROBI ELC CASE NO 813 OF 2013)

GEORGE GATHUKI NG’ANG’A.........................................................PLAINTIFF

VERSUS

GASKI INVESTMENT LIMITED..............................................1ST DEFENDANT

THE REGISTRAR OF TITLES.................................................2ND DEFENDANT

THE CHIEF LAND REGISTRAR.............................................3RD DEFENDANT

JUDGMENT

1. The parcel of land in dispute in the instant suit is comprised in title number Thika Municipality Block 6/1062 containing by measurement one decimal nine five eight (1. 958) hectres or there abouts in area (herein after referred to as the suit property). It was initially allocated as UNS. residential plot “A” Thika Municipality. It is a leasehold interest from the Government of the Republic of Kenya (the lessor).

2. By a plaint (Multi-Track) dated 5th July, 2013 filed on even date, the plaintiff namely George Gathuki Ng’ang’a through M/s Gatheru Gathemia and company Advocates has sued the defendants jointly and severally for ;

a) A declaration that the certificate of lease , registered on the 3rd January 2012 and issued on 10th April 2012 by the Commissioner of Lands is the valid title issued to George Gathuki Ng’ang’a.

b) A declaration that the certificate of lease, registered on the 13th September 2011 and issued on 14th September 2011 by the Commissioner of Lands to Gaski Investment limited is not a valid title.

c) A permanent injunction restraining the 1st defendant whether by itself, its agents and or servants from interfering, trespassing, construction, alienating, charging, selling, disposing of, dealing or in any way interfering with the Plaintiff’s quiet possession of the suit property, THIKA MUNICIPALITY BLOCK 6/1062.

d) A mandatory injunction compelling the 2nd and 3rd defendants to cancel, revoke and expunge from the records at Land Registry all records pertaining to the fraudulently obtained title held by the 1st defendant.

e) General damages.

f) Costs of this suit.

3. The plaintiff claims that by a letter dated 18th May, 1992 (P Exhibit A1) he sought to be allocated the suit property from the lessor through the Commissioner of Lands. Subsequently, his application was approved and he was issued with a letter of allotment dated 10th September, 1992 (P Exhibit A2). He paid the requisite acceptance fees for allotment and lawfully obtained all the relevant documents which include the certificate of lease dated 10th April, 2012 (P Exhibit A26). That the plaintiff is the sole indefeasible proprietor of the suit property.

4. The plaintiff further claims that on or about November, 2012, it came to his attention that the suit property was also leased to the 1st defendant since 13th September, 2011. That the 1st defendant had formerly procured a title over the suit property and threatened to possess of the said property hence precipitating this suit.

5. In a statement of defence dated 9th July, 2014, through Gitonga Muriuki and company Advocates, the 1st defendant denied the plaintiff’s claim and sought it’s dismissal with costs. That the 1st defendant is the bonafide registered owner of the suit property and termed the plaintiff’s title illegal, fraudulent and obtained after the registration of the 1st defendant’s title.

6. The 1st defendant’s also stated, interalia, that the plaintiff’s title is founded on fraud, conspiracy and other related criminal activities and that the same should be deleted from the Land Registry documents. That the reliefs sought by the plaintiff are not available as they are not supported or at all.

7. In their statement of defence filed on 30th June, 2015, the 2nd and 3rd defendants denied the plaintiff’s claim and termed P Exhibit A 26 issued to the plaintiff irregular and fraudulent. They stated that on 2nd September, 1992, the suit property was offered to the plaintiff who failed to accept the offer within the stipulated period of thirty (30) days from that date and did not bother to pay the required fee. That on 17th December, 1997, the said offer was withdrawn from the Land Registry. They are represented by learned counsel, Njoroge Allan Kamau.

8. The 2nd and 3rd defendants further stated that on 10th September, 2010, the 1st defendant applied for allotment of the suit property by a letter of even date (2nd and 3rd D Exhibit 10) which received the necessary consideration and ultimately a letter of allotment dated 23rd December, 2010 was issued in favour of the 1st defendant (2nd and 3rd D Exhibit 9). The requisite fees as per receipt reference 2214271 dated 13th January, 2011 (2nd and 3d D Exhibit 7) was paid by the 1st defendant.

9. The plaintiff contended that he presented a copy of payment receipt No. E200734 dated 8th December, 1997 being payment fees for the initial unsurveyed plot “A” Thika (P Exhibit A3). The 2nd and 3rd defendants initiated the process of preparing another lease on a temporary file. Further to a letter reference. 144938/TC/11 (2nd and 3rd D Exhibit 12), the 1st defendant made additional payment for the then unsurveyed suit property as per official receipt No. 2270961 dated 21st July, 2011. That two leases namely P Exhibit A26 and 1st D Exhibit 12 2nd and 3rd D Exhibit 9) were prepared in respect of the suit property for plaintiff and 1st defendant respectively.

10. The plaintiff filed an application by way of notice of motion dated 14th August, 2017 to enjoin the National Land Commission (NLC) as a defendant to these proceedings. However, on 22nd March, 2018, the application was withdrawn by consent of the parties herein.

11. The plaintiff (PW1) testified and relied on his list of documents of even date (P Exhibits A1 to 29). He also relied on his supplementary list of documents (P Exhibits B1 to 64) and further supplementary list of documents dated 31st October, 2018 (P Exhibit C1 to 9) in his testimony.

12. PW2, Francis Kenyoru Orioki, a Land Registrar stated that he authored a letter dated 9th March 2010 (P Exhibit B18). He confirmed that he certified P Exhibit B20 having seen its original which had been issued in favour of PW1.

13. PW3 was Janet Aluoch Orego, Chief Land administration officer who testified that she authored (P Exhibit B30). She made reference to and relied on several documents including P Exhibits B30, 31, 32, 34 and P Exhibit C1. She stated that two (2) leases were issued in respect of the suit property.

14. DW1 was Silas Kiogora Mburugu and a director with the 1st defendant. He relied on his statement dated 7th June, 2017 as his evidence in chief. He also premised his testimony on his list of documents dated 18th July, 2014 filed on 21st July,2014 (1st Defendant Exhibits 1 to 12).

15. DW2 was Gideon Odeka Ochieng, senior Assistant Director Land Administration. He relied on his statement dated 30th June, 2015 as well as his list of documents of even date (2nd and 3rd D Exhibits 1 to 17).

16. Learned counsel for the plaintiff filed submissions dated 30th November, 2015 filed on even date. He made reference to the orders sought in the plaint dated 5th July, 2013 and submitted; interalia, that the evidence on record confirms that DW1, a director of the 1st defendant purported to obtain a letter of allotment and to register a lease whereas the suit property had already been allocated to the plaintiff who had made numerous deposits in acceptance of the allocation. That the purported lease of the 1st defendant is not signed as required under section 3(3) and 3(6) of the law of contract Act (Cap 23). That the suit property was not available for allocation as unsurveyed plot in the year 2010 hence urged the court to uphold the plaintiff’s case and revoke the defective and irregular lease issued to the 1st defendant.

17. Counsel relied upon authorities including Snell’s Equity 29th Edition P.V Baker London sweet and Maxwell 1990 at pages 27-41 on the relevant maxims of Equity, among them, Equity follows the law and Caltex Oil (Kenya) Limited-vs- Rono Limited (2016) eKLR as regards a claim for general damages.

18. Learned counsel for the 1st defendant filed submissions dated 5th December, 2018 on even date. He framed and analysed three (3) issues for determination, interalia, which of the two (2) certificates of lease was procedurally and legally allocated? He submitted that the plaintiff never accepted the allotment made to him which justified the withdrawal of the allotment. That the defendants’ documents are authentic, credible and were lawfully issued.

19. Counsel urged this court to dismiss the plaintff’s suit with costs and that his certificate of lease be cancelled accordingly. To buttress his submissions, counsel relied on the case of Pius Kimaiyo Langat-vs- The Cooperative Bank of Kenya Limited (2017) eKLR and the case of Caroline Wanjiku Ngugi-vs-Republic (2015) eKLRon enforceability of written contracts and necessary ingredients for the offence forgery respectively.

20. Learned counsel for the 2nd and 3rd defendants filed submissions dated 4th December, 2018. It was submitted that the 1st defendant obtained a lease upon allocation of the suit property. That the plaintiff’s lease thereof was processed on a temporary cover hence prompting the issuance of two certificates of lease for the suit property.

21. Counsel framed and analysed four (4) issues for determination including whether the plaintiff’s the rightful owner of the suit property and whether there was a fraud or irregularity in obtaining any of the two (2) titles to the suit property. Reliance was placed on authorities among them, Wreck motor Enterprises-vs- Commissioner of Lands and 3 others (1999) eKLRregarding issuance of a letter of allotment and Nancy Kahoya Amadiva-vs- Expert Credit Limited and another (2015) eKLR on proof of allegations of fraud.

22. Counsel further relied on the case of Kenya Medical supplies Agency (KEMSA)-vs- Marji Kanji Hirani and 8 others (2018) KLR on failure to meet the conditions of acceptance and payment contained in an allotment letter and Gitwany Investment Limited-vs- Tajmal Limited and 3 other (2006) KLR that in equity the first in time must prevail as well as Munyu Maina-vs-Hiran Gatiha Maina (2013) regarding legal acquisition of title.

23. The plaintiff’s counsel also filed further submissions dated 10th December, 2018 in response to the 1st defendant’s submissions as well as the 2nd and 3rd defendant’s submissions. Counsel submitted that Wreck and the other cases (supra) relied upon in the defendants’ submissions have no useful application in this matter. Accordingly, he reiterated his submission dated 5th December, 2018.

24. I have carefully considered the parties’ respective cases and rival submissions in this suit. A list of agreed and dispute issues dated 27th August, 2014, issues in the plaintiff’s submissions as well as issues in the 1st, 2nd and 3rd defendants’ submission are taken into account. I embrace the said issues and bearing in mind the decision in Galaxy Paints Company Limited-vs- Falcon Grounds Limited (2000) 2 EA 385, the issues for determination are condensed to;

(a) Who is the lawful proprietor of the suit property?

(b) Are the parties entitled to the reliefs sought in their respective pleadings?

25. On the first issue, the plaintiff (PW1) stated that there are two (2) leases. One in the name of PW1 and another in the name of 1st defendant in respect of the suit property. During cross-examination by learned counsel of the 1st defendant, he confirmed that there are two (2) green cards (registers) in respect of the suit property.

26. PW3 fortified the evidence of PW1 that there are two (2) leases in respect of the suit property. It was also confirmed by DW2 who testified that there are two (2) titles for the suit property. Therefore, it is common good that there is a lease issued to PW1 and another issued to the 1st defendant for the suit property.

27. It was the testimony of PW1 that he applied for allotment of the suit land through the commissioner of lands on 18th May, 1992 and he obtained P Exhibit A26. That he is in physical possession of the suit property and his house stands thereon. During cross-examination by counsel for the 1st defendant, he stated that he obtained no search certificate for the suit property and that P Exhibit A2 was a conditional letter for an unspecified period of time. He also stated, interalia;

“There are two (2) green cards in respect of the suit land. The certificate of search shows that the land belongs to 1st defendant. The land is mine. I have no certificate thereof……….” (Emphasis added).

28. On cross-examination by learned counsel for the 2nd and 3rd defendants, PW1 stated that he did accept allotment of the suit property in writing and that he has no green card with regard to the said property. He testified, that;

“I did not do a formal acceptance and payment within the time stated in P Exhibit B4 which is also P Exhibit A2. I obtained the land from the government as shown in P Exhibit B3. “(Emphasis laid).

29. According to PW2, P Exhibit B58 being a notice of 21 days given to PW1 in respect P Exhibit 20 was not drawn to his attention. That it was occasioned by the unavailability of the original files hence did” P Exhibit B18 on a temporary cover or file (TC).

30. PW2 and DW2 confirmed that P Exhibits B32 and 58 were done on a temporary cover as the original file or record was not available. During cross-examination by learned counsel for the 1st defendant, PW3 stated;

“I have seen P Exhibit 58 and it is in the temporary cover. P Exhibit 58 was a notification to PW1. Conditions in a letter of allotment must be met otherwise it becomes invalid.”

31. It is quite clear that the plaintiff’s claim is grounded on a conditional letter of offer (P Exhibit A2). Does it constitute a contract between PW1 and the government of Kenya through the commissioner of lands? The answer is in the negative going by the evidence of PW1, PW2, PW3 and DW2. I agree with the 1st defendants’ counsel that the transaction is not valid as there was an offer (P Exhibit A2) but there was no acceptance and consideration thereof; see William Muthee Muthami-vs-Bank of Baroda (2014) eKLR cited in Pius Langat case(supra).

32. DW1 made reference to 1st D Exhibit 4 and told the court that an earlier allotment of the suit property to PW1 had been withdrawn thus the same property was available for reallocation to himself together with his wife, a co-director of the 1st defendant. In his statement dated 7th June, 2017 and filed on 9th June, 2017, DW1 stated that;

“We agreed with my co-director and my wife to apply in the company’s name Gaski Investment Limited and the commissioner for land accepted the application and granted the offer.

We were issued with allotment letter and paid the requisite fee in the sum of 174,000/- which we paid vide cheque No 03759 and dated 28th December, 2010.

We paid all the necessary fee as required by the ministry officials and our Company was accordingly issued with a title certificate No. Thika Municipality Block 6/1062 on 14th September, 2011……….”

33. DW1 maintained that he accepted the allotment letter in respect of the suit property within the requisite period of time as revealed in 1st D Exhibit 1. That the 1st defendant followed due process in obtaining lease as shown on 1st D Exhibits 2 and 12. That he erected a perimeter wall around the suit property hence he is in possession of the property.

34. 1st D Exhibit 2 and 12 show that the 1st defendant was issued with a certificate of lease on 13th September, 2011. P Exhibit A 26, B41 and P Exhibit C8 reveal that PW1 was issued with a certificate of lese on 10th April, 2012. On that basis, the first in time must be prevail bearing in mind the decision in Gitwanycase (supra) and the principles of equity entrenched under Article 10 (2) (b) of the Constitution of Kenya, 2010.

35. The plaintiff pleaded particulars of fraud and illegality at paragraph 28 of his plaint. He failed to prove the allegations to the required standard going by the decision in of Amadivacase (supra); see also Raila Odinga and 2 others –vs- Independent Electoral and Boundaries Commission (2017) eKLR and Paul Kimaru Njuguna –vs- Pius Karuri Kigumi and another (2009) eKLR. It follows that 1st defendant has proved by way of 1st D Exhibits 1 to 12 that he acquired his certificate of lease through a process which was legal, formal and free form any encumbrances as envisaged in Munyu Maina case (supra).

36. In the premises, I find that the plaintiff’s claim is anchored on a temporary cover as confirmed by PW2 and DW2. Therefore, the certificate of lease as shown on P Exhibit A26 and P Exhibit 41 is irregular. The plaintiff has failed to prove his allegations against the defendants to the required standard.

37. I further find that the 1st defendant has demonstrated that the certificate of lease as shown by 1st D Exhibits 2 and 12 was acquired through a process which was legal, formal and free from any encumbrances. This court hereby upholds the certificate of lease issued to the 1st defendant who is the sole bonafide registered owner of the suit property. The 1st defendant is entitled to the absolute ownership of the suit property under Article 40(1) of the Constitution (supra). The orders sought in the plaint are not merited in the circumstances.

38. Wherefore, I dismiss the plaintiff’s case with costs to the defendants.

SIGNED and Dated at Migori this 7th day of May, 2019

G.M.A ONG’ONDO

JUDGE

SIGNED, Dated and Delivered at Thika this 14th day of JUNE 2019

L.N GACHERU

JUDGE

In the presence of;

1. Mr. Owade holding brief for Mr. Gatheru Gathemia for plaintiff

2. Mr. Muriuki for the defendant

3. M/s Fatma for 2nd and 3rd defendant

4. Lucy –Court Assistant