[1999] KEHC 65 (KLR)

1. GITHUNGURI JUA KALI ARTSAN ASSOCIATION

2. JAMES MBURU MUKUNDI

3. VERONICA WANJIRUWARUHIU

4. EVANSON MBURU WANJOHI................................APPELLANTS

versus

1. KARANJA MUKIRI

2. RACHAEL WANJIRUWAWERU

3. PETER KARANJA THINDI

4. JOSEPH MATHENGE MUTITU.............................. RESPONDENT

JUDGMENT

This is an appeal filed by Githunguri Jua Kali Artisan Association,James Mburu Mukundi, Veronica Wanjiru Waruhiu and Evanson MburuWanjohi who are not satisfied with the judgment delivered in this matter byM/s Margaret Rungare, then Senior Resident Magistrate, on 18th February1998, in Civil Case No.506 of 1996 in the Senior Resident Magistrate'sCourt at Githunguri.

The 1st Appellant is a registered body at the Registrar of Societies Office. The 2nd and 3rd Appellants are the registered trustees of the 1stAppellant while the 4th Appellant was the 1st Appellant's Secretary at thematerial time.

There is the name of one Patrick Nganga Kamau appearing on thecertificate of lease as another trustee of the 1st Appellant, but that name hasbeen left out in these proceedings.

The lease I have just mentioned is in relation to the suit propertyregistered under the provisions of the Registered Land Act as Title No.GITHUNGURI/TOWN PARCEL NO./l 1 pursuant to a letter of allotmentissued by the Commissioner of Lands to the 1st Appellant on 16th May 1991.

The certificate of lease, issued in the names of the three trustees of the1st Appellant shows that the Lesser is the County council of Kiambu for aterm of 99 years from 1st July 1992 at a rent of Kshs.3, 600/= and that theLessee is the 1st Appellant and it contains a mandatory restriction in terms ofSection 48 of the Registered Land Act that

"NO DISPOSITION BY THE PROPRIETORSHALL BE REGISTERED WITHOUT THE

WRITTENCONSENT OF THE LESSOR."

The term proprietor refers to the Lessee.

The approximate area of the leased plot is given as 0. 2925 hectarealthough the letter of allotment had given the area as 0. 56 hectare.

Other things to note are that the Letter of Allotment had stated that theterm of 99 years was to run from 1st May 1991 and that the Annual rent wasto be Kshs.5600/=. By then, 16th May 1991, the plot was unsurveyed as canbe seen from the heading of the letter. A number 42 has been mentioned bythe parties in relation to that land but it is not clear how the number cameabout.

However, it would appear that upon the survey which resulted into theissuing of the lease, the area given to the 1st Appellant was almost half theoriginal area and that may explain why the Annual rent had to come down toKshs.3600/= and the running of the term of the lease made to be from 1stJuly 1992 with the new number being Githunguri Town Parcel No./ l 1. Thecertificate of lease I am looking at was produced as Plaintiff exhibit No. 8 andwas issued to the Trustees of the 1st Appellant on 23rd February 1996.

Thereafter the suit giving rise to this appeal was filed in theMagistrate's Court at Githunguri on 14th October 1996, the Appellants, thenPlaintiffs, seeking orders that the Respondents do vacate the suit property,namely Title No. Githunguri/Town Parcel No.l 1 measuring 0. 2925 hectare and that in the alternative, the Court do issue an eviction order against theRespondents and further that a permanent injunction be issued restraining theRespondents, their servants, their agents and/or any other person acting undertheir authority from entering, trespassing and/or having any other dealingswhatsoever with the suit premises.

The Appellants wanted those orders on the basis that the Respondentshad, each, illegally and without the Appellant's authority put up semi-permanent structures on the suit property Title No. Githunguri/Town ParcelNo/11 although the Respondent knew the land belonged to the 1st Appellant.

The Respondents, then Defendants, did not accept the claim of theAppellants. They admitted that the Appellants were currently registered as theproprietors of the suit parcel of land but contended that the 1st and 2ndRespondents were entitled to a portion of 50 feet by 80 feet while the 3rd and4th Respondents were entitled to another 50 feet by 80 feet portion out of thesuit parcel on the ground that before the Appellants were allocated the suitparcel of land the Respondents had, by letters of allotment dated 24thSeptember 1992 been allocated by the Kiambu County Council, theirrespective plots, the one given to the 1st and 2nd Respondents having beennumbered Githunguri/Githunguri/16/L and the one given to the 3rd and 4th Respondents having been numbered Githunguri/Githunguri/16/G. TheRespondents claimed the two portions were within the suit parcel of land andthat that happened through the mistake of the County Council of Kiambu andthat therefore the Respondents had continued paying their respective rates tothe County Council.

The Respondents therefore denied the illegality the Appellants wereattributing to them and went on to say that the structures the Respondents hadput on the suit parcel of land had been put there long before the Appellantswere allotted the suit parcel of land and could not therefore have been putthere with the Respondent's full knowledge that the 1st Appellant owned theland. They prayed for dismissal of the Appellants case.

The Respondents went on to make a counter claim against theAppellants praying for rectification of the Appellants' registration as ownersof the suit parcel of land under section 143 of the Registered Land Act so thatthe suit parcel of land could be divided into three portions to enable the 1stand 2nd Respondent have their separate portion, the 3rd and 4th Respondenttheir separate portion and the remainder to be with the Appellants.

The learned trial magistrate dismissed the Appellants' suit as prayed bythe Respondents and went ahead to grant the Respondents' counter claim.

The Appellants feel aggrieved, hence this appeal.

But let me go a little backward. Before this suit was filed, mere was acriminal case in which the 1st Appellant was the Complainant and the 1stRespondent was the accused. I should have pointed out that the Respondentsin this appeal are Karanja Mukiri, Rachael Wanjiru Waweru, Peter KaranjaThindi and Joseph Mathenge Mutitu. In the Criminal Case, No.589 of 1994in the same court at Githunguri, Karanja Mukiri, as the accused, was chargedwith the offence of willfully and unlawfully destroying a fence valued atKshs. 16,000/= the property of the 1st Appellant herein.

The fence was on the suit parcel of land and the end result was that thecase was dismissed and the accused acquitted as the trial magistrate said thathe did not find malice, ownership of the piece of land on which the fencewas not having been established. The magistrate added that since theaccused had been allocated a portion of the land by the County Council ofKiambu, the accused was also rightly in occupation as no quit notice hadbeen given.

By that time the lease in favour of the Appellants may not have beenregistered. That was on 21st December 1994 and I have no evidence whenthe lease was registered. But by the time Civil Case No.506 of 1996 was decided on 18th February 1998, the lease had, no doubt, been registered andthe relevant certificate of lease had also been issued on 23rd February 1996.

But whether the lease had been registered or not, I think the mainproblem which stood in the way of the trial magistrates, both in the criminalcase and in this civil case was, the fact that each one of the learned magistratelooked at the Commissioner of Lands and the County Council of Kiambu astwo separate and independent land allocating authorities. No evidence of theland allocating procedure was adduced. All that was there was that the whole piece of land belonged to the County Council of Kiambu. The Councilallocated a portion of 50 feet by 80 feet to the 1st and 2nd Respondents andanother portion of 50 feet and 80 feet to the 3rd and 4th Respondents.Commissioner of Lands allotted the whole piece of 0. 2925 hectare to the 1stAppellant. There was no evidence to answer the question how theCommissioner could do that if the piece of land belonged to the CountyCouncil of Kiambu.

But strangely, while the Respondents in their written statement ofdefence and even in their evidence, were blaming the County Council forwhat happened, each one of the two learned magistrates blamed theAppellants for what happened saying the Appellants did not go to court with clean hands. They talked of surveyors loosely without having gone into the evidence as to how such a surveyor comes to do his work after an allottee by the Commissioner of Lands or an allocatee by the County Council of Kiambu has received the letter of allotment or allocation. The trial magistrate in this civil case therefore stated at page 6 of his judgment:

"As earlier testified to by the clerk to the Council inthe Criminal trial the Commissioner of Landsacquired land which had already been allocated tothe Defendants. These Defendants were neverconsulted when the survey was done and the resultwas mat their plots measuring 50x80 and 50x80respectively were included in the plot of thePlaintiffs:"

The learned magistrate went on to quote section 143 (2) of the Registered Land Act and continued:

"In the instant case the plaintiffs caused the surveyof the plot that included the plots of the Defendantsand caused the same registered in the name of thePlaintiff and Title Deed issued. The circumstancesof the dispute were well known to them as theirallotment letter had the acreage of the plot allocatedto them by the Commissioner of Lands and yet theywent ahead and caused the inclusion of the plots ofthe Defendants in plot No. 11 ending up with adifferent acreage from the one already allocated tothem by the Commissioner of Lands. In this case Ifind the Plaintiffs have not come to court withclean hands or in good faith................ " allotting or allocating authorities should be joined as parties to be in court totell the court what they did and to identify the owner of the suit piece of land.The County Council of Kiambu should have been a party and present in courtto tell the court how the Commissioner of Lands could allot the council'spiece of land without the council's knowledge and consent and withoutregard to the presence and ownership of the council's allocates as its clerkimplied in his evidence in the Criminal Case which me Senior ResidentMagistrate in the instant case followed as if that evidence was a Bible.

The learned Senior Resident Magistrate should have looked at the leaseto see that the Lessor is not the Commissioner of Lands. The Lessor is theCounty Council of Kiambu and there is rent payable by the lessee, who is the1st Appellant, to the Lessor. If the same Council is receivingother dues in respect of the suit piece of land from the Respondents, then itmust be the council which is playing a dirty game between the litigants in thissuit. The Council ought to have been made a party in this suit and I havesaid it and may repeat it. The County Council of Kiambu is a public body,elected by "Wananchi" and must serve them properly and in accordance withthe law.The fact that the Council is the Lessor in this matter shows that on my part, there is no evidence from which I can attribute omissionor fraud or mistake to the knowledge of the Appellants or to actions taken bythe Appellants.

As to surveying the 1st Appellants as an allottee had the duty to paysurvey fees as stipulated in the letter of allotment which fee was to be paidtogether with the rest of the fees. Thereafter it was up to the Commissionerof Lands to instruct a surveyor, presumably from the Director of Survey'sDepartment, in the same Ministry as the Commissioner himself, to go andcarry out the survey. There was no evidence that all the people to whom theCounty Council of Kiambu had previously allocated plots in the suit parcel ofland were to be present. There was even no evidence that the surveyor knewany one of them. The person responsible for summoning them was notrevealed in the evidence. In the circumstances I find no reasonable cause forblaming the Appellants for the absence of the Respondents at the survey ofthe suit parcel of land whose date is also not known.

Finally, from what I have been saying, and especially in thecircumstances of this case, the date on which a local authority, or the CountyCouncil of Kiambu for that matter, made the allocation in question is of nolegal consequence. What is of importance is the forwarding of the allocation to the Commissioner of Lands and thereafter the processing of the leaseculminating into its registration. The person so registered is the legal ownerof the lease even if he was the last person to be allocated the relevant plot bythe local authority. All the rest whose allocations of the same plot were notforwarded by the local authority to the Commissioner of Lands qualify for novalid claim in the lease or the plot and perhaps their remedy lies in followingthe same local authority to allocate them some other plots elsewhere.

To conclude this judgment therefore, I do hereby allow this appeal.Set aside the trial Magistrate's dismissal, with costs, of the Appellants suitand also set aside the Magistrate's order granting, with costs, the counterclaim of the Respondents.

The same counter-claim be and is hereby dismissed.

Respondents, their servants, their agents and/or any other personsacting under their authority be and are hereby ordered to vacate the suitparcel of land within three months from the date of this judgment. In default,they be evicted from the said parcel of land and a permanent injunction toissue restraining them from entering, trespassing and/or having any dealingswhatsoever with the suit parcel of land.

Respondents to pay costs of this suit.

Dated this 15th day of October 1999.

J.M KHAMONI

JUDGE