[2025] KEELC 540 (KLR)

Kiptagich Tea Estates Ltd & another v Koskei (Environment & Land Case 258 of 2015) [2025] KEELC 540 (KLR) (13 February 2025) (Judgment)

Neutral citation: [2025] KEELC 540 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 258 of 2015

A Ombwayo, J

February 13, 2025

Between

Kiptagich Tea Estates Ltd

1st Plaintiff

Kelelwa Enterprises Ltd

2nd Plaintiff

and

James Koskei

Defendant

Judgment

1. The Plaintiffs commenced this suit vide an Amended Plaint dated 18th December, 2015 against the Defendant seeking the following orders:a.An order of injunction against the defendant by himself, agents, servants, employees or otherwise from trespassing onto, selling or cutting down the trees growing thereon and or interfering in any way with the blue gum comprised in L.R No Nakuru/Baraget Settlement Scheme/713. b.An order of declaration against the defendant declaring that L.R No Nakuru/Baraget Settlement Scheme/713 legally belongs to the 1st Plaintiff and further issue an order of cancellation of the title deeds issued to the 2nd Plaintiff and the defendant and a new title deed therefore be issued to the 1st Plaintiff.c.Costs of the suitd.Any other relief the court may deem fit and just to grant.

2. The Defendant filed his Defence and Counter claim dated 4th February, 2016 where he denied the allegations in the amended plaint and sought for the following orders in his counterclaim:a.Declaration that the parcel of land known as NAKURU/BARAGET SCHEME/713 measuring 28. 8 ha belongs to the Defendant including and not limited to the blue gum trees therein.b.An order directing the commissioner and or registrar of lands to cancel any purported registration of the 2nd Plaintiff as the owner of parcel of land known as NAKURU/BARAGET SETTLEMENT SCHEME/713 measuring 28. 8 ha and reinstating the Defendant’s title.c.Damages for fraud and trespassd.Such other/further relief as this honourable court may deem fite.Costs of this suit and counterclaim

Plaintiffs’ Case 3. Anthony Mwai Gichuga the managing Director of the Plaintiff testified as PW1 where his statement dated 14th September, 2023 was adopted as his evidence in chief. He testified that he has been a manager for the last five years. He produced the documents in his list of documents dated 14th September, 2023 as PEX 1- PEX 6. It was his testimony that the land in and the trees grown belonged to the Plaintiff. He testified that the title deed came after theirs. He testified that the 1st Plaintiff was a business name while the 2nd is the company. The 2nd Plaintiff is a limited company with a business name. He testified that the 2nd Plaintiff was an agent of the 1st Plaintiff. He added that there was no claim by the 2nd Plaintiff.

4. Upon cross examination by Ojoo for the Defendant, PW1 confirmed that he had not filed a C.R 12. He further stated that the 1st and 2nd Plaintiff are one and the same. He stated that the Plaintiffs are two different companies. He admitted that he was not a director of the 2nd Plaintiff. He admitted that he did not have a board resolution to come to court. He stated that he was not aware of the authority to swear under seal was granted. He further stated that the Plaintiff is the owner of the suit property. He stated that there was a change of name from the 1st Plaintiff’s name to that of the 2nd Plaintiff. He also stated that there was an alleged transfer from Kiptagich to Kelelwa. He stated that he could not confirm that there was a sale agreement. He went on to state that the property was registered in the name of the 2nd Plaintiff on 10th October, 2005. He stated that the company was using a business name and that he was not certain when the business name was registered. He added that the names were used interchangeably.

5. PW1 stated that the title read Kelelwa Enterprise Limited. He further stated that the title is registered in a company’s name. He stated that the property was transferred to the 2nd Plaintiff on 10th October, 2000 and the title issued on 11th October, 2000. He added that the title deed showed that the property was registered on 12th October, 2005. He denied any kind of fraud by the company and stated that they planted the trees. He stated that the 2nd Plaintiff was holding the property in trust for the 1st Plaintiff. He further stated that the agreement dated 5th April, 2006 was for the transfer of the property from the 1st Plaintiff to the 2nd Plaintiff. He went on to state that the 2nd Plaintiff was an employee of the 1st Plaintiff. He added that the 2nd Plaintiff obtained the property from the 1st Plaintiff. He also stated that the 1st Plaintiff planted the trees as from the year 2000. PW1 denied ever harvesting the trees and added that the Defendant also did not harvest. He stated that he Defendant fell the trees after which they obtained a court order stopping the felling of trees. He stated that Angelina Birir was a director of the 1st Plaintiff.

6. Upon re-examination, PW1 stated that the authority was in the witness statement. He stated that nothing stopped him from not appearing in court. He stated that he was not present when the 2nd Plaintiff acquired the property. He added that in 2005, the 2nd Plaintiff was a business name. He also stated that the transfer to the 2nd Plaintiff never happened. He stated that there was a title in the 1st Plaintiff’s name and that the 2nd Plaintiff was holding in trust for the 1st Plaintiff. He confirmed that there were no transfer documents. He however confirmed that there was a sale agreement. He stated that the Defendant cut the trees in December 2022.

7. This marked the close of the Plaintiffs case.

Defendant’s case 8. Hon. Koskei a former member of parliament for Kuresoi constituency testified as DW3. He testified that the owner of the 2nd Plaintiff is Mr Birir. He testified that the director of the 1st Plaintiff are a family of the late president Daniel Arap Moi who had appointed him in 1998 as the health minister and later sacked in 2001. It was his testimony that the 1st Plaintiff company was contracted by KTDA.

9. He testified that farmers were asked to take their tea to Kiptagich tea factory. He went on to testify that as an employee back in 1997, they were underpaying farmers and when he complained he was sacked. It was his testimony that he obtained the property which came about due to the tribal crashes where people had been taken out of their farm. He testified that he was allocated land in Baraget being plot No.713 measuring 30. 6 ha by a settlement committee. He testified that he was given a parcel since he was the area member of parliament. He went on to testify that he was issued with a title. DW3 testified that due to the clashes, there were no records kept. He testified that the 2nd Plaintiff’s property was with Birir. He added that Birir took advantage of the fact that he was sacked and owned the property. He testified that the owner of the 1st Plaintiff was Mr. Moi, who sacked him and took his land. He testified that he took possession in the year 2016. He testified that there are blue gum trees planted. He added that the Plaintiff never harvested the trees. He testified that he occupied the land in 2020 and KFS referred. He produced the title as DEX1. It was his testimony that the land was transferred to the Plaintiff in 10th October, 2005. He testified that the certificate of incorporation of the 2nd Plaintiff was registered on 30th March, 2006 while printing was registered on 10th October, 2005. The certificate of registration was marked as DMF12. He added that there was a caution placed by Ministry of lands because of a court case.

10. Upon cross examination by Chepkoech, he stated that he acquired the land in 12th October, 2008. He stated that there were no allotment letters and that the titles were given to victims. He stated that he planted trees in 2001. He further stated that he was shown the land by the surveyors. He admitted that he had no records that evidenced the trees he planted. He stated that his claim was on the trees and its value. He stated that he has 25-year-old eucalyptus trees. He admitted that he fell some trees without a permit. He stated that he wants the court to protect the locals. He admitted that he did not sue the director. He stated that the director of KWS declined to issue him with a movement permit due to political reasons. He stated that he was aware of the lower court matter and added that before 2008, he was unable to do a search. He stated that the signature on the two titles were not the same. He further stated that due to the Moi 1st family’s interest, they took advantage and influenced the settlement scheme allocation. He stated that the whole issue was political and the title was politically acquired. He stated that the county harvested five acres of trees.

11. This marked the close of the Defendant’s case.

Submissions 12. The Plaintiff’s counsel filed his submissions dated 23rd December, 2024 where he gave a summary of the case and identified three issues for determination. The first issue was whether the Plaintiffs are the absolute and rightful owners of the suit parcel of land known as Nakuru/Baraget Settlement Scheme/713. He submits that the suit land was registered in the 2nd Plaintiff’s name in trust for the 1st Plaintiff. He further submits that the 2nd Plaintiff holds the legal title as a trustee while the beneficial ownership lies with the 1st Plaintiff. It was counsel’s submission that the 2nd Plaintiff’s title was registered on 10th October, 2005 while that of the Defendant was registered on 3rd October, 2008. He relied on the case of Wreck Motors V Commissioner of Lands and Others [2006] eKLR and Gitwany Investment Limited V Tajmal Ltd & 3 Others [2006] eKLR. He cited Sections 24, 25, 26 and 28 of the Land Registration Act and the case of Arthi Highway Developers Limited V West End Butchery Limited and Others. He submits that the property is registered under the 2nd Plaintiff who has no issue in the same reverting back to the 1st Plaintiff as the original allottee. He added that the 1st Plaintiff retains the full beneficial ownership and control over the land including its resources such as trees.

13. It was counsel’s submission that the 2nd Plaintiff was a business name at first before converting into a company. He added that the Defendant failed to produce a certified copy of the alleged registration certificate to back up its proof that the Plaintiff’s title was issued before registration. He submits that as evidenced by the search, the land is solely registered in the 2nd Plaintiff’s name in trust for the 1st Plaintiff and that the Defendant failed to provide evidence proving that he owned the land.

14. The second issue was whether the Plaintiff is entitled to the protection of their proprietary rights over the trees on the suit property. He submits that the 1st Plaintiff having the beneficial rights over the suit property, any unauthorized interference with the trees planted constitutes a violation of the Plaintiff’s proprietary rights. He added that the Defendant failed to explain how he planted the trees. Counsel relied on the case of Orori V Nyakambi (Environment & Land Case 63 of 2021) [2022] KEELC 45 (KLR) and submits that the trees planted on the suit land belonged to the Plaintiffs.

15. The final issue on costs, counsel relied on Section 27 of the Civil Procedure Act and urged the court to award them costs of the suit.

16. Counsel for the Defendant filed his submissions dated 27th January, 2025 where he identified four issues for determination. The first issue was whether the 2nd Plaintiff is holding the suit property in trust foe the 1st Plaintiff. While submitting in the negative, counsel submits that the Plaintiffs failed to tender any evidence to prove existence of a trust. He added that the title produced did not show any entry of trust. It was counsel’s submission that there was no evidence to show that the 1st Plaintiff was the original allottee or that the 1st Plaintiff was in use and occupation of the suit property or that it planted trees and handed it over to the 2nd Plaintiff.

17. The second issue was whether the 2nd Plaintiff acquired the suit property procedurally and legally. Counsel submits in the negative. He submits that the 2nd Plaintiff was incorporated on 30th March, 2006 and that the suit property was allegedly registered in the 2nd Plaintiff’s name on 10th October, 2005. He submits that the process by which the 2nd Plaintiff acquired the suit land is questionable hence unprocedural and illegal since it did not make sense how it acquired the suit property before it was incorporated.

18. The third issue was whether the Plaintiff is entitled to the prayers sought in the amended plaint. It was counsel’s submission that it is not in doubt that the Plaintiffs’ failed to prove their case on a balance of probability and thus they are not entitled to the prayers sought.

19. The final issue was whether the Defendant is entitled to the prayers sought in the counterclaim. He submits that the Defendant having acquired the suit property legally, he is the registered owner of the suit property thus entitled to the prayers sought in his counter claim. He relied on Section 26 of the Land Registration Act and Section 3 of the Trespass Act. He cited the case of Rhoda S Kiilu V Jiangxi Water and Hydropower Construction Kenya Limited [2019] eKLR.

Analysis and Determination 20. I have considered the pleadings, evidence on record and submissions and I am of the view that the following issues arise for determination:a.Who between the Plaintiffs and Defendant is the rightful owner of the suit property.b.Whether the Plaintiffs are entitled to the prayers sought in their amended plaint.c.Whether the Defendant is entitled to the prayers sought in his Counter claim.d.Who should bear the costs of the suit.

Who between the Plaintiffs and Defendant is the rightful owner of the suit property. 21. It is not in dispute that both parties are challenging each other’s title to the suit property NAKURU/BARAGET SETTLEMENT SCHEME/713 and in the circumstance, each of them must establish their root of title.

22. In the case of Munyu Maina V Hiram Gathiha Maina [2013] KECA 94 (KLR) the court held as follows:“…We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony.”

23. It is the Plaintiffs’ case that the suit land was originally allotted to the 1st Plaintiff after which the same was transferred to the 2nd Plaintiff to hold in trust vide the sale agreement dated 5th April, 2006. The Plaintiffs claim is that the 1st Plaintiff has been in occupation of the suit land and has since grown trees. The Defendant on the other hand claims that he is the rightful owner of the suit land having been issued by the late president Moi in 2008 since he was the then area Member of Parliament. It was his case that due to the clashes experienced back then, there were no records of documentation to prove the same. He argued that the land was then taken away from him by the then president and given to the 1st Plaintiff.

24. It is important to note that the Plaintiffs seeking orders that their title be upheld and that of the Defendant’s be nullified can only succeed on the strength of their case and not on the weakness of the Defence. I have keenly perused the records and it is not in contention that the 1st Plaintiff’s title was issued on 10th October, 2005. During trial, PW1 confirmed that the 2nd Plaintiff was initially a business and later registered as a company. He however strained in clearly explaining the trust relationship between the 1st and 2nd Plaintiff and the fact that he was a director. He failed to adduce evidence in form of a CR12 to prove the same. PW1 confirmed that the company was registered on 13th March, 2006 and this supported by the Certificate of Incorporation adduced.

25. It is quite suspicious on how the 2nd Plaintiff acquired the suit property before it was incorporated. This issue was unfortunately never explained by the Plaintiff. On the other hand, the Defendant failed to also prove how he acquired the suit property. In as much as he claimed that there were no records of how he acquired the suit land, he ought to have gone further to adduce documentary evidence of a letter of allotment or any correspondences to demonstrate the root of his title.

26. It is this court’s view that there are clearly serious shortcomings in the title documents presented before the court by both parties. In addition, the Plaintiffs’ as the ones moving the court, they ought to be aware of the rule under Section 107 (1) of the Evidence Act that he who alleges must prove as well as the provisions of Section 108 of the same Act which place the burden of proof squarely on it.

27. In view of the above, none of the parties successfully proved the root of their title to the suit land and therefore, I find that neither the Plaintiffs nor the Defendant is the lawful owner of the suit land.

Whether the Plaintiffs are entitled to the prayers sought in their amended plaint. 28. Having established that the Plaintiffs failed to discharge their burden of proof to the required standard, they are therefore not entitled to the prayers sought in their amended plaint.

Whether the Defendant is entitled to the prayers sought in his Counter claim. 29. Equally, the Defendant having failed to prove his case, he is therefore not entitled to the prayers sought in his counter claim. Each party to bear its own costs of the suit. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERRED ELECTRONICALLY AT NAKURU THIS 13TH DAY OF FEBRUARY 2025. A.O.OMBWAYOJUDGE