John Peter Maina Kamau v The County Government of City County of Nairobi & 2 others

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. E 248 OF 2021** **JOHN PETER MAINA KAMAU - PLAINTIFF** **VS** **THE COUNTY GOVERNMENT OF** **CITY COUNTY OF NAIROBI - 1ST DEFENDANT** **PETER KAMWATHI - 2ND DEFENDANT** **BETHEL CHRISTIAN FELLOWSHIP** **CHURCH - 3RD DEFENDANT** **JUDGEMENT** 1. Vide an amended Plaint dated 3/5/23, the Plaintiff sued the Defendants seeking for the following orders; 1. A declaration that the purported repossession of Plot No B6-306-Kayole by the 1st Defendant and the subsequent purported reallocation to the 2nd Defendant was illegal, null and void ab initio and that the Plaintiff is the rightful owner of the land known as Plot No B6 – 306 Kayole [suit land]. 2. A permanent injunction restraining the Defendants jointly and severally by themselves, their servants or any person claiming through them or on their behalf from trespassing, constructing on, transferring, disposing of, alienating, wasting or in any other manner whatsoever interfering with the parcel of land known as Plot No B6-306-Kayole. 3. A cancellation of all title documents purportedly issued by the 1st Defendant to the 2nd Defendant, his assigns, agents, servants, or any person claiming title through him or on his behalf, for the land known as Plot No B6-306 Kayole, and an order directing the 1st Defendant to reinstate the registration of Plot No B6-306 Kayole in the name of the Plaintiff as the registered proprietor. 4. Eviction of the 2nd and 3rd Defendants, their servants against assigns, legal representatives, relatives, and any other person claiming title through them from the land known as Plot No. B6-306- Kayole. 5. General damages and mesne profits 6. Alternatively, the 1st Defendant be compelled to compensate the Plaintiff at the current market value of the suit land 7. Costs of the suit and interest. 2. It is averred that the Plaintiff was the registered and beneficial owner of the suit land, having purchased it from Mercy Nyaguthii Waweru on 28/12/2005 and subsequently issued a plot card by the 1st Defendant on 15/1/2009. 3. It was further averred that the initial allottee of the suit land was Jane Wangui Karanja, who sold it to Annah Gathoni Gathekia. Thereafter, the plot changed hands several times, ultimately passing to Mercy Nyaguthii, who then sold it to the Plaintiff. 4. He added that he was later informed by the 1st Defendant, through its Town Clerk, that the suit property had been repossessed and subsequently allocated to the 2nd Defendant in August 2009. In lieu of the suit land, the 1st Defendant promised him compensation but never honoured that promise. 5. He averred that he had occupied the suit land until 2015, when goons invaded the land and commenced construction, which was later abandoned. 6. That the 2nd Defendant has no claim to the suit land and is a trespasser because the repossession and reallocation were fraudulent, unjust and unprocedural, as no notice was issued to the Plaintiff. Particulars of fraud and illegality are pleaded and itemised under para 11 of the Amended plaint. 7. The 3rd Defendant runs a church on the suit land on allegations that it is the legitimate owner. 8. The 1st Defendant contended that the suit land belongs to the 2nd Defendant. 9. The 1st Defendant denied the Plaintiff's claim and asserted that it has never issued any allotments to Jane Wangui Karanja, Annah Gathoni Gathekia, Francis M. Njenga, Stephen I. Njuguna, Riata Njiru Waweru, and Mercy Nyaguthii Waweru. If any letters of allotment were issued, they were obtained through fraudulent means. It has never issued or repossessed any plot card or letters of allotment relating to the suit land. 10. The 2nd Defendant failed to enter appearance nor filed a statement of defence. 11. The 3rd Defendant denied the Plaintiff's claim and further stated that it is a bona fide purchaser for value of the suit land, having acquired the property from Mary Njoki, who purchased the land from the 2nd Defendant in September 2010 – refer to the sale agreement dated 17/7/98. It also indicated that, prior to entering into the agreement of sale, its due diligence confirmed that the 2nd Defendant was the lawful owner of the suit land. 12. PW1 – Peter Maina Kamau testified and relied on his witness statement dated 6/6/2022, and produced documents marked PEX Nos 1–9 in support of his case. 13. He stated that he purchased the land in 2005 from Mercy Nyaguthii, who handed over several powers of attorney from the previous owners of the suit land. The land had changed hands several times before. The allotee for the suit land was Jane Wangui, who was allotted the land in 1987. It is asserted that the land was not repossessed from the original allottee because the letter dated 15 March 2006, addressed to Jane Wangui Karanja, confirmed payment for the suit land. He provided the current market value of the plot as Kshs 3.5 Million. 14. During cross-examination, he conceded that he did not possess any allotment letter from Jane Wangui or any of the alleged previous owners of the suit land. He stated that, apart from a plot card registered in his name, he had no other plot cards in the names of Mercy Nyaguthii, Jane Wangui, or any previous owners. He opined that this may have been due to the outstanding loan on the property. Furthermore, he indicated that, after making the payment, he was issued a clearance letter in the name of Jane Wangui Karanja. 15. He was informed in 2009 by the 1st Defendant that the plot belonged to the 2nd Defendant. By then, he had already sold it to Charles Kiambati. The 1st Defendant assured him of compensation in the form of an alternative piece of land. 16. In addition, he stated that he has sued the 3rd Defendant because they are currently in possession of the suit land and operating a church therein. 17. DW1- Samuel Macharia Ndekei relied on his witness statement dated 6/7/23 in evidence-in-chief and produced documents marked PEX NO 1-13 in support. 18. He stated that he purchased the land from Mary Njoki, who had acquired it from the 2nd Defendant, who held a letter of allotment dated 15/6/99. He further stated that the 2nd Defendant had not yet transferred the plot to Mary Njoki, which explains why she held neither a plot card nor a letter of allotment. 19. Parties elected to file written submissions. Except for the 2nd Defendant, all the other parties filed written submissions which I have read and considered. **Analysis and determination** 1. Having considered the pleadings, the evidence adduced at the hearing and the written submissions, the issues that commend themselves are; 1. Whether the Plaintiff has proven fraud on the part of the Defendants. 2. What orders should the Court grant 3. Costs of the suit. 2. It is undisputed that the suit land remains unregistered and that it traces its origin to the 1st Defendant. The Plaintiff contends that he acquired the suit land in 2005 from Mercy Nyaguthii Waweru, the previous owner, who, in turn, had purchased it from earlier owners. Upon acquisition, he fulfilled all obligations, including payment of the rates due to the 1st Defendant. He took possession and fenced the land until 2015, when some goons invaded the land and removed him. The original allottee was Jane Wangui Karanja. It is further alleged that in 2009 the 1st Defendant informed him that the land had been repossessed and subsequently allocated to the 2nd Defendant. The Plaintiff considers this repossession and subsequent allocation fraudulent and illegal, and accordingly seeks orders, inter alia, to annul these actions and restore the suit land to his ownership. 3. The 1st and 3rd Defendants have denied the Plaintiff's claim, particularly the allegations of fraud and illegality. They contend that the suit land was repossessed from the previous owner, who had defaulted on payments to the 1st Defendant. Subsequently, the 2nd Defendant was allotted the land in 2009 and paid all dues and plot charges. According to the 1st Defendant's records, none of the alleged previous owners, including the Plaintiff, held an allotment letter from the 1st Defendant, and any claim to the land is unsubstantiated. 4. The Plaintiff has pleaded instances of fraud under para 11 of the Plaintiff as follows; 1. The 1st Defendant's fraudulent repossession of the suit property from the Plaintiff without any prior notice to the Plaintiff. 2. The irregular reallocation of the suit property to the 2nd Defendant without any due process and/or notification to the Plaintiff. 3. Issuance of falsified undertakings by the 1st Defendant officials to the effect that the 1st Defendant would compensate the Plaintiff. 4. Illegal trespass, fencing and occupation of the suit property by hired goons in 2015 or thereabouts, and the subsequent illegal use and occupation of the suit property by the 3rd Defendant in 2022 or thereabouts. 5. Section 107 of the Evidence Act provides that whoever seeks any Court to give judgment on any legal right or liability that depends on the existence of facts he asserts must prove that those facts exist. In civil cases, the burden of proof is on the balance of probabilities. The onus of proof rests with the Plaintiff. 6. Fraud is defined as- “Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. As distinguished from negligence, it is always positive, intentional. Fraud, as applied to contracts, is the cause of an error bearing on a material part of the contract, created or continued by artifice, with design to obtain some unjust advantage to the one party, or to cause an inconvenience or loss to the other. Fraud, In the sense of a Court of equity, properly includes all acts, omissions, and concealments which involve a breach of legal or equitable duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue and unconscientious advantage is taken of another’. 1. Section 26 of the Land Registration Act provides 2 instances in which a title may be impugned in law. It sets out the legal provisions as follows:- **“The Certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except -** 1. **on the ground of fraud or misrepresentation to which the person is proved to be a party; or** 2. **where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”** 3. Where a title is challenged on account of fraud, the law is clear that fraud must be pleaded and proved. This has been buttressed in the CoA case of Vijay Morjaria vs Nansingh Madhusingh Darbar & Another [2000] eKLR, where Tunoi, JA. (as he then was) stated as follows: “It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must, of course, be set out, and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.” 1. In the CoA case of Arthi Highway Developers Limited V West End Butchery Limited & 6 Others [2015] eKLR it was settled that a person who holds a bad title cannot pass a good title to a purchaser. 2. In support of his claim, the Plaintiff has attached a plot card bearing his name, dated 15 January 2009. However, the card does not specify the plot number. Without the plot number, it is not possible to associate the card with the suit land. 3. Another document produced by the Plaintiff was a receipt dated 18/1/2009 for Kshs 400/- for plot No B6-306. This amount was for the plot card, not for the purchase of the suit land. 4. Next is a sale agreement dated 28/12/2005 between Mercy Nyaguthii Waweru and the Plaintiff, the subject of which is the suit land. It is stated therein that the 1st Defendant has allocated the suit land to Mercy Nyaguthii Waweru and that she was to give the Plaintiff possession of the suit land together with all the documents she had received in her name in respect of the plot. The Plaintiff led evidence that he neither received a plot card nor a letter of allotment from the 1st Defendant to Mercy Nyaguthii Waweru, or from any other alleged previous owners. He himself was never allocated the land either. This averment casts doubt on the capacity of Mercy Nyaguthii Waweru to sell to the Plaintiff land that she was neither allocated nor at any time owned. In other words, Mercy Nyaguthii Waweru held no interest in the land and conveyed none in the purported sale agreement dated 28/12/2005. 5. It is to be noted that the parties contemplated default in the sale agreement and under clause 5 provided as follows; “in case the transfer is not finalised due to the fault of the vendor, the vendor will refund the amount so far received plus 10% of the same, and if the fault is the purchaser's, the vendor will look for another buyer and refund the amount less 10%.” 1. Subject to limitations of time, the Plaintiff is not without a remedy in this case. 2. The Plaintiff asserts that the allegation that the allotment letter issued to Jane Wangui Karanja was repossessed is unfounded, citing a letter dated 15 March 2006 addressed to Jane Wangui Karanja, which informed her that the plot had been fully paid as of 31 December 2006. The letter is accompanied by an untitled schedule indicating full payment for the plot. In the absence of preliminary ownership documents, including the allotment letter and evidence of payments, these documents are inadequate to establish that the suit land was owned by Jane Wangui Karanja or the aforementioned Mercy Nyaguthii Waweru. 3. Several powers of attorney have been submitted by the alleged former owners of the disputed land. It is asserted that these documents transferred an interest in the property from one purported owner to another. On review, the powers of attorney are general authorisations granting the donee authority to manage and transfer the property on the donor's behalf. In my considered opinion, the Plaintiff has mistakenly believed that these documents conveyed an interest in the land. In the absence of definitive primary ownership documents in the donors' names, it is clear that no interest was actually transferred to the donees. 4. in the case of Danson Kimani Gacina and another v. Embakasi Ranching Company Ltd [2014] eKLR where the Court held that: “The law on unregistered land, unlike on registered land, is slightly unclear. Proof of ownership in the case of the former is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents showing the entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities, but the Court must be left in no doubt that the holder of the documents proved is entitled to the property.” 1. I will now turn to the documents produced by the 1st Defendant and, subsequently, by the 3rd Defendant. The 1st Defendant argued that the disputed land was allocated to the 2nd Defendant on 15/06/1999. The 1st Defendant relied on a letter of allotment as evidence. The letterhead indicates that the plot was repossessed. The market value of the property is Kshs 50,000/-, payable in instalments, with an initial 30% due within 30 days and the balance to be paid over five years, effective from 1/01/2000. The tenure is 99 years, with an annual rent of Kshs 120. The allottee is responsible for paying rates and all other levies or charges that may be imposed by the First Defendant. 2. On February 3, 2000, the Second Defendant made full payment, including the annual rent, thereby accepting the terms set out in the letter of offer and completing the transaction for the allotment of the suit land to the Second Defendant. On 9/09/2002, the First Defendant's housing development department office at Dandora verified that the documents in the 2nd Defendant's name were authentic and that the development plans for the suit land had been approved for processing. On 3/03/2000, the 1st Defendant confirmed that the 2nd Defendant had made full payment for the land and advised him of the documentation required if he wished to assign the suit land to another party. 3. These documents, taken together with the Plaintiffs' evidence that he held no allotment letter for the suit land, show that the 2nd Defendant had established a better interest in the suit land than the Plaintiff. It appears that the land was repossessed from the previous owner for non-payment of the payments to the 1st Defendant. 4. After carefully considering the evidence and the balance of probabilities, the Court is of the opinion that the Plaintiff has not demonstrated any interest in the suit land. Furthermore, there is no evidence that the repossession of the land from the previous owners and its subsequent allocation to the Second Defendant were conducted fraudulently or unlawfully. 5. **Final orders for disposal** 1. In the end, I find the Plaintiff's case unmeritorious. 2. It is dismissed with costs to the 1st and 3rd Defendants. 6. Orders accordingly. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered online in the presence of:** 1. Ms Mulama for the Plaintiff 2. Ms Asasha HB for Mr Bakhe for the 1st Defendant 3. N/A for the 2nd and 3rd Defendants 4. CA – Mr Amos