[2020] KEELC 141 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT KITALE

ELC PETITION NO. 5 OF 2019

GERISHOM NDEGE ERIMA...........................................................................................................PETITIONER

VERSUS

TRANS-NZOIA COUNTY LAND ADJUDICATION & SETTLEMTENT OFFICER......1ST RESPONDENT

THE DIRECTOR OF LAND ADJUDICATION &SETTLEMENT OFFICER.................2ND RESPONDENT

AND

MARONDA NICHOLAS ONGERA..............................................................................INTERESTED PARTY

JUDGMENT

Introduction

1. The Petitioner herein vide his Petition dated 3/4/2019 and filed in court on 5/4/2019 is seeking the following remedies:

a. A declaration that the Petitioner is the lawful allottee of plot No. 590, Kapkoi Settlement Scheme measuring approximately 5 acres or thereabout.

b. An order of mandatory injunction requiring the 1st and 2nd Respondents to process all requisite documents including a Discharge of Charge and transfer documents in favour of the Petitioner and transmit the same to the Land Registrar, Trans-Nzoia, for purposes of issuance of a Title Deed or Certificate of title to the Petitioner.

c. Costs of the Petition and interest thereon.

2. The instant petition is supported by an affidavit titled “verifying affidavit of Gerishom Ndege Erima” sworn on 4/4/2019.

3. The petition is opposed by the Respondents. Through the office of the Attorney General, they filed a response to the Petition dated 11/10/2019 and filed in court on 17/10/2019.

4. The Interested Party despite being served never entered appearance.

Petitioner’s Case

5. The petitioner contends that vide a letter of allotment dated 27/7/1984, the Settlement Fund Trustees allocated him that parcel of land known as Plot No. 590, Kapkoi Settlement Scheme.

6. The petitioner has stated further that following the said allocation, he took possession of the land and has since retained occupation of the suit land after paying all the requisite charges, fees and interest in favour of the Settlement Fund Trustees.

7. It is stated that on 1/4/2019, the petitioner upon visiting the land offices in Nairobi in a bid to process his discharge of charge, he discovered that the interested party was in the process of illegally and/or fraudulently discharging the same parcel of land had obtained title documents in his favour.

8. As a result of the foregoing the petitioner preferred the instant petition seeking the forestated reliefs.

Respondents’ Response to the Petition

9. The Respondents are opposed to the instant petition vide replying affidavit sworn by State Counsel MuthanzeLung’uon 11/10/2019. It is deposed that the petitioner was indeed allocated plot No. 590 in Kapkoi Settlement Schememeasuring5 acres in1982 upon payment of 10% of the total amount required in 1987 and that the charge was executed on 8/12/1989.

10. It is deposed further that the Petitioner did not make further payments as required until 15/3/2019 way after the expiry of the stipulated time and that as a result of the Petitioner’s non-compliance with timelines, the respondents reallocated the suit property to the interested party on 21/2/2014.

11. It is deponed that the interested party paid the full amount required to the respondents and was issued with the Certificate of Outright Purchase in 2014.

12. It was further deponed that the reallocation to the interested party was entirely based on Petitioner’s failure to make payments on time and thus none of his constitutional rights was infringed.

13. The court was urged to dismiss the Petition herein with costs lack of merit.

The Interested Party’s Response.

14. The interested party did not file any response to the petition despite service.

Submissions

15. The court ordered the parties to file their respective submissions. The petitioner through Katama Ngeywa & Co. Advocates filed his written submissions on 8/5/2020 but on perusing the court file, I note that the respondents have not filed theirs.

16. In view of the pleadings and the submissions tendered herein, I find the following issues to be salient and hence worthy deliberation.

17. Issues For Determination

a. Whether the land in issue was allocated to the Petitioner and subsequently reallocated to the interested party.

b. Whether the reallocation of the suit land to the interested party was in violation of the constitutional rights of the petitioner.

c. What orders should issue?

18. The issues are addressed as hereunder.

a. Whether the land in issue was originally allocated to the Petitioner and subsequently reallocated to the interested party

19. There is no doubt that the land in issue was allocated to the petitioner in the year 1984 vide a letter of allotment dated 27th July 1984as that has been admitted by the respondents and the interested party has not appeared to present before court evidence to the contrary. The respondents have also conceded that the same land allocated to the petitioner was reallocated to the interested party.

b. Whether the reallocation of the suit land to the interested party was in violation of the constitutional rights of the petitioner

20. The petitioner’s claim is founded on allegations of violation of his constitutional rights. The petitioner has argued that the purported reallocation of the suit land to the interested party on 21/2/2014 was illegal and irregular.

21. The petitioner has argued that the offer by the Respondent to the interested party was invalid ab initio for the reason that it was issued in 2014 with full knowledge that the petitioner was in occupation of the suit land having been allocated the same way back in 1984 and that the allotment letter had never been recalled, revoked and/or cancelled at any time by the respondents.

22. It is further averred that the demand by the respondents to the petitioner for payment of the balance over the same allocated land in 2019 alleged to have been re-allocated in 2014 to the interested party is clear manifestation of who the rightful owner of the suit land is.

23. I have perused the said demand letter marked GNE-4in the annextures to the supporting affidavit of the Petition. It would appear by that letter that the respondents still recognized the petitioner’s ownership of the land as at the date 23/1/2019. Further evidence that the respondents acknowledge that the petitioner owns the land is the acceptance of the payment of dues made by the petitioner on 15/3/2019, a copy of the receipt for which has been placed in the court record by both the petitioner and the respondents. No dispute therefore arises as to whether the petitioner owned the land after 2014, the year the interested party was allegedly re-allocated the land.

24. This court is convinced that in view of that letter which has not been controverted by the respondents the alleged allocation of the land to the interested party in 2014 is a ruse intended to illegally and irregularly deprive the petitioner of his land.

25. In Rukaya Ali Mohamed -vs- David Gikonyo Nambacha & Another (Kisumu HCCA No. 9 of 2009:- Justice Warsame as he then was pronounced himself on a similar issue and held:

“Once (an) allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers (an) absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation, or that the allotment was outrightly illegal or it was against the public interest.”

26. It therefore follows that where land has been validly allocated, the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.

27. Consequently, when the Petitioner was allocated the land sometimes in 1984, he acquired a legal interest and therefore the respondents could not just reallocate the same to the interested party unprocedurally as is the case.

28. The respondents and the interested party have failed to demonstrate before this court that the letter of allotment to the petitioner was ever validly cancelled or that the petitioner had ever been alerted of such cancellation or any intention to cancel that it. The petitioner is settled on the land, and has been so settled for a long time. The respondents never showed a ground report as evidence that he was not so settled. Any interference with the allotment to the petitioner in the circumstances amounts to a violation of his right to own property under Article 40 (1)of the Constitution and also amounts to arbitrary deprivation of his rights to property in violation of the provisions of Article 40(3) of the Constitution.

29. The upshot of all this is that I find merit in the petition. I therefore allow the petition in terms of Prayers Nos. (a), (b)and(c) thereof.

Dated, signedanddeliveredatKitale via electronic mail on this 14th day of October, 2020.

MWANGI NJOROGE

JUDGE, ELC, KITALE.