[2020] KEELC 2566 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT KAJIADO

ELC CASE NO. 812 OF 2017

(Formerly Nairobi ELC Case No. 1203 of 2016)

LANTEI KIKO SOKORTE………………………………………………..1ST PLAINTIFF

NKOLOLO ENE LAUTEI……………………………..………………….2ND PLAINTIFF

VERSUS

CHEPTUMO AYABEI…………………………………………….……..1ST DEFENDANT

MUTETE OLE MAYIANTO……………………………………………2ND DEFENDANT

JOHN SHALO OLE NAIKUNI…………………………………………3RD DEFENDANT

JUDGEMENT

By a Plaint dated the 3rd October, 2016 and amended on 27th October, 2016, the Plaintiffs pray for judgement against the Defendants for:

a) An order of permanent injunction restraining the Defendants, its agents, servants interfering with the Plaintiffs original KJD/ KIPETO/ 1424 and an order of cancellation of plot No. 1674 and 1675 and other subsequent transfers thereof.

b) Costs of this suit.

The 1st and 2nd Defendants filed their Defence and Counterclaim dated the 20th January 2017 where they denied the Plaintiffs averments except for the descriptive and jurisdiction of the court. The 1st Defendant claimed to be the registered proprietor of Kajiado/ Kipeto/ 4917 which he purchased from the 2nd Defendant on 3rd September, 2014. They stated that the Plaintiffs are not bona fide owners of the suit properties. They explained that the Plaintiffs signed and consented to the Mutation forms to subdivide Kajiado/ Kipeto A/ 1424 into new parcel numbers 1674 and 1675 on 14th December, 1994. Further, title number Kajiado/ Kipeto/ 1674 was subdivided into 4917, 4918 and 4919 respectively on 3rd January, 2012. The 2nd Defendant contends that he purchased the suit premises from the 1st Plaintiff and paid the entire consideration and was duly registered as proprietor of the said land on 5th January, 2012. They filed a counterclaim where they sought the following orders:

a) The Plaintiffs’ suit be dismissed with costs together with interest thereon at Court rates.

b) Judgement be entered for the 1st Defendant against the Plaintiffs for a Permanent Injunction restraining the Plaintiffs, either by themselves or their agents, servants, employees, assigns or any persons acting under their direction or instructions or otherwise howsoever from trespassing and/ or interfering, in any way, with the Defendant’s ownership, quiet enjoyment, possession and use of Land Reference Number Kajiado/ Kipeto/ 4917.

c) Costs of this suit and of the Counterclaim together with interest thereon for such period and at such rate as this Honourable Court may deem appropriate.

d) Such other relief as this Honourable Court may deem fit to grant.

On 17th September 2019, the Plaintiffs’ though duly served as evidenced by the affidavit of service sworn on 29th April, 2019 and filed in Court on 20th May, 2019 failed to attend court for the hearing. The Plaintiff’s suit was dismissed with costs and the Defendants proceeded with the hearing of their counterclaim.

Evidence of the 1st and 2nd Defendants

The 1st Defendant as DW1 adopted his witness statement dated the 20th January, 2017 as his evidence in chief. In the statement he confirmed being the registered owner of Kajiado/ Kipeto/ 4917 which he purchased from the 2nd Defendant on 3rd September, 2014 for Kshs. 7,000,000/=. He denied transacting with the Plaintiffs and further that he illegally as well as fraudulently subdivided their land to create plot 1674 and 1675 respectively. He referred to the Mutation Form dated the 14th December, 1995 where the 1st Plaintiff had applied for subdivision of Kajiado/ Kipeto/ A/ 1424 to Plot 1674 and 1675. Further, that vide a Mutation Form dated the 3rd January, 2012, the 1st Plaintiff further subdivided Kajiado/ Kipeto/ 1674 into plots 4917; 4918 and 4919 respectively. He explained that the Plaintiffs had previously interfered with their occupation of the suit land until 2017 when they ceased to so. Further, that they used to cut the fence, move animals into the land and demolish structures thereon. He produced the following documents as exhibits: Copy of Stamp Duty Declaration, Assessment and Pay in slip for the Transfer of Kajiado/ Kipeto/ 4917 Serial Number 1194214 dated 5th January, 2012; Copy of Stamp Duty Payment Receipt dated 5th January, 2012; Copy of Agreement for Sale dated the 3rd September, 2014; Copy of Transfer of Kajiado/ Kipeto/ 4917 registered on 17th October, 2014; Copies of Cash Deposit receipts dated 11th August, 2014, 20th August, 2014, 29th August, 2014, 16th October, 2014 and 20th November, 2014 respectively; Copy of RTGS dated 11th September, 2014 ; Copy of Title Deed for Kajiado/ Kipeto/ 4917 dated 17th October, 2014; Copy of Certificate of Official Search for Kajiado/ Kipeto/ 4917 dated 19th October, 2015 and Copy of Mutation Form for title Number Kajiado/ Kipeto/ 1674 dated 3rd January, 2012.

The Defendants thereafter closed their case and filed submissions.

Analysis and Determination

Upon consideration of the Pleadings filed herein including the Plaint, Defence and Counterclaim, Witness testimony, exhibits and submissions, the issue for determination is whether the Defendants are entitled to the orders sought in the counterclaim.

The 1st Defendant in his submissions reiterated his claim and contended that he is entitled to protection of the law as the registered proprietor of his land. Further, that he is entitled to the costs of the suit. He relied on the decisions of Joseph Kipchirchir Koech V Philip Cheruiyot Sang (2018) eKLR and Nahason Maingi Muguna V Josphat Njiru M’arucha (2014) eKLR to buttress his arguments. The 1st Defendant explained that he purchased his land from the 2nd Defendant on 3rd September, 2014 for Kshs. 7,000,000/=. He denied transacting with the Plaintiffs. On perusal of the Mutation Form dated the 14th December, 1995, it is evident that the 1st Plaintiff had initially applied for subdivision of Kajiado/ Kipeto/ A/ 1424 to Plot 1674 and 1675 respectively. Further, as per the Mutation Form dated the 3rd January, 2012, the 1st Plaintiff further subdivided Kajiado/ Kipeto/ 1674 into plots 4917; 4918 and 4919 respectively. I note the Plaintiffs never controverted these averments that it is the 1st Plaintiff who actually subdivided his land and not the Defendants as alleged. The 1st Defendant stated that he purchased his land from the 2nd Defendant who had initially purchased the same from the 1st Plaintiff. From a perusal of the various documents the 1st Defendant presented in Court including the Certificate of Title for Kajiado/ Kipeto/ 4917; Copy of Green Card for Kajiado/ Kipeto/ 4917; Certificate of Official Search dated the 19th October, 2015; Sale Agreement dated 3rd September, 2014; Transfer of Land Form dated 11th October, 2014, it is evident that the 1st Defendant indeed adhered to the legal process to acquire the suit land culminating in his obtaining a Certificate of Title on 17th October, 2014.

Section 24 (a) of the Land Registration Act further stipulates as follows: ' subject to this Act, the registration of a person as a proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto..............'

In the case of Ahmed Ibrahim Suleiman and Another vs. Noor Khamisi Surur (2013) eKLRwhere Justice J.M. Mutungi stated that ' the Plaintiff having been registered as proprietor and having been issued with a certificate of lease over title No/ Nairobi/Block 61/69 are in terms of section 26(1) of the Land Registration Act entitled to the protection of the law'.

Further in the case ofWILLY KIPSONGOK MOROGO v ALBERT K. MOROGO (2017) eKLRwhere the Court held as follows: ‘ the evidence on record shows that the suit parcel of land is registered in the names of the Plaintiff and therefore is entitled to the protection under sections 24, 25 and 26 of the Land Registration Act.’

In associating myself with the two decisions, the legal provisions cited above as well as the evidence before me, I find that the 1st Defendant is indeed the absolute proprietor of land parcel number Kajiado/ Kipeto/ 4917 and hence entitled to protection of the land in accordance with the provisions of section 24, 25 and 26 of the Land Registration Act.

As to whether the Plaintiffs should be permanently restrained from interfering with land parcel number Kajiado/ Kipeto/ 4917. The 1st Defendant testified in court that the Plaintiffs’ had previously interfered with his occupation of the suit land by cutting the fence, moving animals into the land and demolishing structures thereon until 2017 when they ceased to do so. Since I have held that the 1st Defendant is the registered proprietor and hence entitled to protection of the law and in line with the principles enshrined in the case of Giella Vs Cassman Brown Co. Ltd (1973) EA 358, I find that the Plaintiffs’ should hence be permanently restrained from interfering with the 1st Defendant’s possession, occupation including enjoyment of the suit land.

It is against the foregoing that I find that the 1st Defendant has proved his case on a balance of probability and will proceed to enter judgement for him as against the Plaintiffs as per the Counterclaim. I will further proceed to make the following final orders:

i. The Plaintiffs’ suit be and is hereby dismissed with costs.

ii. Judgement be and is hereby entered for the 1st Defendant against the Plaintiffs for a Permanent Injunction restraining the Plaintiffs, either by themselves or their agents, servants, employees, assigns or any persons acting under their direction or instructions or otherwise howsoever from trespassing and/ or interfering, in any way, with the 1st Defendant’s ownership, quiet enjoyment, possession and use of Land Reference Number Kajiado/ Kipeto/ 4917.

iii. Costs of this suit and of the Counterclaim is awarded to the Defendants.

Dated signed and delivered via email this 20th day of May, 2020

CHRISTINE OCHIENG

JUDGE