[2021] KEELC 2111 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

MALINDI

ELC CASE NO. 135 OF 2017

GRANDSCOPE VENTURES LIMITED....................................PLAINTIFF

VERSUS

ACK. ST. THOMAS CHURCH, KILIFI.................................DEFENDANT

JUDGEMENT

Background

1. Grandscope Ventures Ltd [the Plaintiff] instituted this suit against the ACK St. Thomas Church Kilifi [the Defendant] by way of a Plaint dated and filed herein on 21st June 2017 praying for:

a) A declaration that the Defendant has illegally, unlawfully, wrongfully and without any colour of right encroached and trespassed into the Plaintiff’s parcel of land No. 5054/214 formerly No Kilifi/Mun/Block 4/79 situated in Kilifi;

b) An order of mandatory injunction [to] be issued requiring and/or compelling the Defendant to acquire the Plaintiff’s parcel of land No. Kilifi/Mun/Block 4/79 formerly known as 5054/214 and to pay the Plaintiff the sum of Ksh. 15,000,000/= as consideration of the said acquisition;

c) General damages for trespass and unlawful encroachment onto the Plaintiff’s parcel of land known as Kilifi/Mun/Block 4/79 formerly No. 5054/214 from 4th April 2011untill acquisition of the same by the Defendant; and

d) Costs of this suit and interest thereon.

2. Those prayers are premised on the Plaintiff’s contention that at all times material to this suit, it was the registered owner of the said land parcel Number Kilifi/Mun/Block 4/79[formerly known as No. 5054/214] situated in Kilifi [hereinafter the “suit property”] while the Defendant is the registered owner of an adjacent parcel of land being parcel No. 5054/215.

3. It is the Plaintiff’s case that the Defendant has without any colour of right, unlawfully and intentionally encroached and trespassed onto the suit property and established a cemetery thereon. The Plaintiff avers that despite various notices of demand to the Defendant to cease its trespass and encroachment, the Defendant has blatantly and capriciously failed to heed the same as a result whereof the Plaintiff has suffered and continues to suffer grave loss and damage.

4. But in its written Statement of Defence dated 4th July 2017 as filed herein on 11th July 2017, the Defendant denies that it has encroached upon and or trespassed into the suit and/or trespassed onto the suit property which it admits is adjacent to its own plot No. 5054/215. In addition, the Defendant denies having converted the suit property into a cemetery or grave yard as stated by the Plaintiff.

5. The Defendant avers that while the Plaintiff only acquired its lease for the suit property in April 2011, the Defendant has had its land since 1952 and has been burying its dead thereon. In addition, the Defendant avers that the Plaintiff unilaterally carried out a survey of the suit property without its involvement and avers that if a joint survey were conducted and the same revealed any encroachment on its part of the suit property, it is ready and willing to relinquish that portion of land.

6. The Defendant however denies that it has admitted any liability to the Plaintiff’s claim and/or that it did make any offer for the purchase thereof as stated by the Plaintiff or at all and invites the Plaintiff to strict proof.

The Plaintiff’s Case

7. In support of the case, the Plaintiff called a total of three [3] witnesses at the trial.

8. PW1- Njoroge Regeru is an Advocate of the High Court of Kenya and a director and shareholder of the Plaintiff company. Relying on the earlier statement signed by his co-director Wambui Eileen Njoroge dated 21st June, 2017, PW1 told the court that they purchased the suit property and were issued with a title deed on 4th April 2011 for the purposes of developing commercial residential apartments.

9. PW1 testified that at the time of purchase, the suit property which borders the Defendant’s Plot No. 5054/215, was vacant. In the year 2015, PW1 engaged some consultants to design the project for a high – class 2 to 3 bedroom apartments with top-end finishes. It was then that they went to the grounds and discovered the Defendant had since encroached on their land and buried some individuals therein. They found fresh graves on the site.

10. PW1 told the court that they then authorized their representative Francis Ngare to engage the church and to see if the matter could be resolve amicably. The representatives of the parties held meetings and minuted their discussions between January 2016 and May 2016. PW1 testified that the gist of the discussions was that the land had since become completely useless for the intended purpose.

11. Accordingly, PW1 told the court that they proposed to the Defendant to compensate the Plaintiff and take over the suit property as their own. The plaintiff asked for Ksh. 11 million but the church offered Ksh. 4 million. When the parties failed to make any headway, the Plaintiff instituted this suit.

12. PW1 further told the court that a survey report dated 28th June 2016 that was commissioned by the Defendant had shown that the area of encroachment was 0. 0373 Ha. A report dated 30th January 2017 by the Government Surveyor had confirmed that position. PW1 told the court they did not give consent to the Defendant to use their land and that if the graveyard had been there before they purchased the land, they would never have purchased the same.

13. PW1 further testified that the value of the land as per the valuation done by the Plaintiff was Ksh. 15. 5 million. He urged the court to order a compensation for the said amount. If the Defendant were allowed to only compensate for the portion encroached upon, that would mean sub-dividing the land and surrendering roads and access to the suit property. The concept of the Plaintiff’s project had assumed the entire acreage of the land and any lesser acreage would completely destroy their investment plan. The project was to start in 2016 but they had been unable to do so due to the encroachment.

14. On cross- examination, PW1 testified that he saw the land before they bought it in April 2011. At that time, there were visible graves a cross the fence into the Defendant’s church. After 2011 however, they saw fresh graves on the land. The further told the court they brought a surveyor to the land after purchasing the same because of the dispute.

15. PW2 – Herman Kivumira is a registered valuer practicing as Wesco Consultants. He told the court he has worked as a valuer for more than 35 years. PW2 testified that he prepared a Valuation Report in respect of the suit property dated 18th January 2018 on the instructions of the Plaintiff’s Advocates. The purpose was to find out the effect of an encroachment upon the Suitland.

16. PW2 testified that after investigations and based on their analysis, they returned a value of Ksh. 15. 5 million. He arrived at that figure by making comparisons with similar beach plots as provided by the Kilifi District Surveyor.

17. PW2 further told the court he had looked at the Valuation Report dated 10th January 2018 prepared for the Defendant by valuer Mbaja – Obage. He told the court the report describes the Defendant’s parcel of land and not that of the Plaintiff. The said parcel is valued at Ksh. 450,000/=. According to PW2, the method used in the Defendant’s report was improper as it was not clear which area was valued.

18. On cross – examination, PW2 testified that from the figures provided, it was apparent Mr. Mbajah had valued 10% of the property as a sample. That would put the total value of the property at Ksh 4. 5 million.

19. PW3 – Francis Ngari is a supervisor of the Plaintiff’s properties within Kilifi. He testified that in January 2016 he was sent to Kilifi to check on the property next to the Defendants’ property. He found out the Defendant had encroached on the property. He then, sat down with the Defendant’s representatives to try and come to some agreement. The church’s vicar attended meetings whose deliberations were minuted. The meetings confirmed that there was an encroachment on the Plaintiff’s land.

20. On cross-examination, PW3 conceded that he is not a surveyor and that he was told about the encroachment by the surveyor. He told the court he visited the site and saw some fresh graves. PW3 further told the court that it had come up in the meeting that the church and the relatives of those buried on the land were the ones to compensate the Plaintiff. He however told the court he did not know the relatives of those buried on the land and/or if they had been contacted for compensation. He further conceded he had not seen the church doing the burials.

The Defence Case

21. Just like the Plaintiff herein, the Defendant church called 3 witnesses who testified in support of its defence at the trial.

22. DW1- Stephen Kitsao is a retired clerk with the now defunct County Council of Kilifi and a member of the Defendant church. He told the court the two parcels of land in issue are adjacent to each other and that they share a road. DW1 testified that since the 1950’s, the Defendant has been using its plot which is about 2km from the main church and is known as ‘Plot ya Makaburini ya Wazungu’ as a cemetery. All the church’s committee members were being buried there.

23. DW1 told the court that the Plaintiff came in the year 2011 and started making claims. He told the court some people now buried on the land may not have been part of the church leadership. DW1 denied that the church had entered into negotiations with anyone to buy the land stating that it was the Church Commissioners who own the land.

24. On cross – examination, DW1told the court he was unaware that there were graves on the Plaintiff’s land. The only graves DW1 was aware of were on the church’s land. He further told the court he had nothing to show that the church commissioners had authorized him to testify on their behalf.

25. DW2 – Fredrick Hare Randu is a building technician and a member of the Defendant church. He told the court both the Plaintiff and the Defendant’s parcels of land are adjacent to each other. While there were no developments, on the Defendant’s land, half of it is used as a graveyard for the old white men who founded the church.

26. DW2 testified that it was true that during the survey carried out on the land, the survey line left some of the graves on the Plaintiff’s plot but some of those graves date back as early as 1960. DW2 told the court the Plaintiff must have bought the land with the graves already thereon.

27. On cross- examination, DW2 told the court he was a member of the Development Committee of the church and had been a member of the church since his childhood. He told the court he was unaware of any fresh graves on the land and that the same was demarcated before 2011.

28. DW3 – Mbajah Obage Isaiah is a valuer. He told the court he was instructed by the Defendant to conduct a valuation of its land. He did the valuation and prepared a Report dated 6th February 2018. The report puts the value of the land at Ksh. 4. 5 million.

29. On cross- examination, DW3 told the court the two Valuation Reports produced in court are for two different plots. The one he valued was for Ksh. 4. 5 million and it had no development except for a cemetery thereon. He told the court he valued only a portion of land and that the estimated value was Ksh. 4. 5 million and not Ksh. 450,000/= as appears on his report.

30. DW3 conceded that there were graves on the property. He told the court that while there was a fresh grave of about 4-5 years, the majority were more than 20 years old. The property he valued was about 1. 1 acres in size.

Analysis and Determination

31. I have carefully perused and considered the pleadings filed herein, the testimonies of the witnesses and the evidence adduced at the trial. I have equally considered the submissions and authorities placed before me by the Learned Advocates for the parties.

32. The Plaintiff has urged the court to declare that the Defendant has illegally, unlawfully, wrongfully and without any colour of right encroached and trespassed into the Plaintiff’s parcel of land described as Plot No. 5054/214 [formerly Kilifi/Mun/Block 4/79] situated in Kilifi. The Plaintiff also prays for an order of mandatory injunction requiring and/or compelling the Defendant to acquire the Plaintiff’s parcel of land aforesaid and to pay therefore the sum of Ksh. 15,000,000/= as consideration. In addition, the Plaintiff craves general damages to be paid to itself for the said trespass.

33. In support of its case, the Plaintiffs told the court that it acquired the suit property in the year 2011 with the sole intention of constructing prime residential houses thereon for commercial purposes. However, sometime in 2016 when it was ready to actualize its plans and intentions, the Plaintiff realized that the Defendant had illegally encroached onto its parcel of land and turned it into a cemetery.

34. In this respect, the Plaintiff told the court it did discover graves, some of which were recent, on its parcel of land. As a result of this discovery, the Plaintiff told the court that it was unable to utilize its property for the intended purposes. In an attempt to amicably settle the dispute, the Plaintiff told the court it held a meeting with some of the Defendant church’s representatives between January and May 2016. It was the Plaintiff’s case that despite express admissions by the Defendant that they had indeed encroached on the Plaintiff’s parcel of land, the Defendant refused to compensate them and/or to settle the matter amicably.

35. On its part, the Defendant church denies that it has encroached upon and/or trespassed onto the Plaintiff’s parcel of land as stated by the Plaintiff. The Defendant accuses the Plaintiff of unilaterally carrying out a survey of the suit property without the Defendant’s involvement and asserts that if a joint survey were conducted and the same revealed an encroachment on its part, it is ready and willing to relinquish that portion of land to the Plaintiff.

36. The Defendant however denies that it has admitted any liability to the Plaintiff’s claim and or that it did make any offer to purchase the Plaintiff’s parcel of land.

37. It was not in dispute that the parties herein own the parcels of land that are adjacent to each other and share a common boundary. The Plaintiff has effective 4th April 2011 been the registered owner of Plot No. 5054/214 while the Defendant is the proprietor of Plot No. 5054/215 said to have been acquired way back in 1952.

38. The Plaintiff’s contention is that the Defendant has encroached onto its property and further designated the portion of the encroached area to be a cemetery. The Plaintiff told the court that before it acquired the property its officers did due diligence thereon and made a visit to the property. It was their case that during the site visit the property was vacant without any form of encroachment.

39. However while the Plaintiff asserts that it carried out due diligence prior to the purchase of the land, it was clear that the Plaintiff did not carry out a survey of the land it purchased before purchasing the same. That much was admitted by the Plaintiff’s director Njoroge Regeru [PW1] during his cross examination herein. The Plaintiff’s supervisor Francis Ngari in cross- examination told the court that since he himself is not a surveyor, he was only told about the encroachment by their surveyor.

40. As it were, the earliest survey report on the land was apparently done on 16th June 2016 by Messrs Masjac General Contractors. In a letter dated 28th June 2016 addressed to “To whom it may concern” and copied to the Defendant’s representatives and Advocates on record [Plaintiff exhibit 7] forwarding a diagram of the area, it states as follows:

“RE : SURVEY REPORT ON THE EXISTING CEMETRY PLOT FOR

ST. THOMAS CHURCH

The area was re-surveyed based on the FR No. 217/75 which was done in the year 1991

The portion 5054/215 is a cemetery.

The area defined by points CM, CM1, CM2 and CM 3 and it is clearly fenced with graves within

This is an old grave site and should have been enclosed in parcel 5054/215 when the survey was being done then.”

41. It was evident that when the Plaintiff got hold of the said letter, they wrote to the District Surveyor, Kilifi on 28th September 2016 [Plaintiff exhibit 8] requesting for a re-survey of their parcel of land to establish the area of encroachment. Accordingly, by his letter dated 30th January 2017 [Plaintiffs exhibit 9], the District Surveyor one D. N Kiama addressed them as follows on the relevant part:

“ Survey Report on Boundary Identification on Plot No. LR 5054/214 Kilifi Town

.....

The Plot LR 5054/214 borders LR 5054/213, LR 5054/215 and LR 5054/216. Thorough survey was conducted on Plot No. 5054/214 and all the corner beacons were found intact. There is an old graveyard on Plot No. 5054/215 which encroached on Plot No. 5054/214 by 0. 0372 Ha. The nature [of]encroachment is shown on the plan attached.”

42. The said plan attached is exactly the same as the diagram attached to the report by Masjac General Contractors dated 16th June 2016. As can be seen from the two Reports, the graveyard on the Defendant’s land is an old one and if the Plaintiff had carried proper due diligence prior to the purchase of the land, there was no doubt in my mind that they would have noted he same.

43. As it turned out, there was absolutely no evidence placed before the court to demonstrate that the Defendant and/or its members had buried any persons on the land from the time the Plaintiff is said to have purchased the land in April 2011 until the time the dispute came to court. While the Plaintiff told the court that some of the graves on its parcel of land were fresh, the court was not told of the identity of the bodies buried therein, the dates when they had been buried or their relationship if at all with the Defendant church.

44. While the Plaintiff contended that the encroachment had made it impossible to go on with its intended project and urged this court to compel the Defendant to acquire the Suitland, it was clear to me that there was no basis upon which this court could make such an order. A contract of sale is premised on the willingness of the parties. One party makes an offer to sell and the other accepts the offer. In the matter before me, it was apparent that the Plaintiff had already offered the suit property for sale to the Defendant at the sum of Ksh. 15 million. The Defendant did not accept the property at that price and there is no law which I am aware of that I can deploy to compel them to enter into a contract with the Plaintiff.

45. Finally, I must turn my attention to a matter raised in the Defendants pleadings and in the testimonies of its witnesses during the trial. At paragraphs 7, 8 , 9 and 10 of its Statement of Defence, the Defendant asserts that the Church’s council had not given consent for a meeting between the Plaintiff and those who attended meetings as representatives of the church and that those who attended the meetings had no authority to do so. In their testimony herein, the Defence witnesses insisted that it is only the church commissioners who had authority over the Defendant’s property.

46. The Defendant is listed in these proceedings as the ACK St Thomas Church, Kilifi. At paragraph 2 of its Plaint, the Plaintiff describes the Defendant as follows:

“2. The Defendant is a church registered under the Societies Act and having its registered office within the Republic of Kenya [service of summons upon the Defendant shall be effected through the Plaintiff’s Advocate offices]

47. That being the case, the Plaintiff was clearly aware that the Defendant is a religious entity registered under the Societies Act, Cap 108 of the Laws of Kenya. As was stated in Living Waters Church International –vs- City Council of Nairobi [2008] eKLR, registered societies are not legal personalities capable of being sued. They can only be sued through their officials or trustees as per their constitutions.

48. The Defendant in the suit herein is the Kilifi branch of a religious unincorporated organization registered under the Societies Act. That being the case, the Defendant clearly has no capacity to sue or be sued in the manner the suit herein has purported to do.

49. In the premise, it follows that I did not find a basis to grant any of the orders sought in the Plaint. This suit is misconceived and bad in law. It is dismissed with costs to the Defendant.

DATED, SIGNED AND DELIVERED AT MALINDI THIS 31ST DAY OF AUGUST, 2021.

J.O. OLOLA

JUDGE