[2017] KEHC 604 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT AT NYAHURURU

ELC CASE NO 61 OF 2017

LEAH WANGARI GICHURU.....................................PLAINTIFF

VERSUS

FRANCIS KANGARUA......................................1st DEFENDANT

SAMUEL NJUGUNA NJOROGE....................2nd DEFENDANT

JUDGEMENT

1. Before me for determination is a matter wherein the plaintiff applied for interlocutory Judgment against the defendants vide an application dated the 18th May 2011 and filed in court on the 26th May 2011.

2. It is on record that the defendants were served with the Notice of Motion, Summons to Enter Appearance together with a copy of the plaint, on the 13th December 2010 through his advocate M/s Muthanwa and Co. Advocates, as per the affidavit of service sworn by one Peter Githinji Ngure on the 8th February 2011 and filed in court on the same day.

3. The Defendants having failed to either enter appearance or file a defence despite having been duly served, the matter was set down for formal proof on the 15th July 2014.

4. By a plaint dated the 3rd December 2010, the plaintiff herein instituted the present suit against the defendants seeking the following orders;

a) A Declaration that the 1st Defendant has no legal or equitable interest over LR No. 7644/1(Title No. I.R 8574) Nyahururu Municipality

b) A permanent injunction restraining the defendants by themselves, agents, workmen or any persons claiming through or under them from entering, remaining, developing, trespassing, cultivating or in any other way interfering with LR No. 7644/1(Title No. I.R 8574) Nyahururu Municipality

c) Costs of this suit plus interest thereon at courts’ rate.

d) Any other or better relief deemed fit and just to grant.

5. The Plaintiff’s evidence on oath and while relying on her statement is to the effect that she was now a farmer having retired as a teacher.

6. That further she is the registered owner of the piece of land Known as No. 7644 Nyahururu Municipality, measuring approximately 10. 77 acres having bought the same on the 26th September 1962 from a white settler whose name she could not remember but which name is reflected on the title.

7. She testified that she had paid about Kshs 6,000/= for the suit premises by depositing the money through the Commercial bank.

8. The plaintiff produced a copy of title deed to the suit land which upon comparison to the original copy the court accepted the same and marked it as exhibit 1.

9. The plaintiff went on to testify that the suit land bordered the forest and that she knew the 1st defendant herein who was employed as a Forest officer and used to live in a government house adjacent to the said land.

10. That she took possession of the said piece of land upon purchase and build a school called Founders of Hope Secondary School thereon wherein the 2nd Defendant then started living in the watchman’s house within the school compound without her consent.

11. That sometime in September 2008, she saw some people fencing off part of the suit land and when she inquired from them as to why they were trespassing on her land, they had informed her that they had been sent by the 1st Defendant to fence off ¼ of the land. She managed to send them away but a week later, while she was in church, she was informed that ¼ of her land had been fenced off. She had then instructed her worker and her son to remove part of the fencing posts that had been erected thereon. Moments upon the removal, the police arrived and ordered that the people who had removed the posts do report at the Police station wherein both her son and worker had been arrested and were subsequently arraigned in court.

12. The plaintiff testified that after this incidence, she went to seek legal advice from her counsel who then wrote a demand letter dated the15th September 2008, to the 1st Defendant. The said letter was produced as exhibit 2.

13. That vide a response letter dated the 17th September 2008, and produced as exhibit 3, the 1st Defendant’s counsel wrote to the Plaintiff’s counsel indicating that the 1st Defendant was the proprietor of plot No. 2 which plot was excised from plot No. 7644 the subject suit herein.

14. The letter further stated that one Reuben Gichohi Gikonyo had bought ½ acre of the suit land for a consideration of Ksh. 28,000/ from the plaintiff’s husband Mr. Bethuel Muthee Gichuru,who is now deceased, in 1981, and had paid part payment of Ksh 6,820/=

15. That thereafter the said Reuben Gichohi Gikonyo had transferred his interest of ½ acre of the suit land to the 1st Defendant who had then entered into an agreement with the plaintiff’s husband, and had paid the remaining balance of Ksh 21,180/= wherein the Plaintiff’s husband had put the 1st Defendant in possession of the suit land.

16. The 1st Defendant had then put up a temporal residential premises for rental purpose and that the agreement between the two was with full knowledge and consent of the plaintiff herein.

17. That later in 1995, the suit land No. L.R 7664 was formally subdivided into 17 plots wherein the 1st defendant had to move from the plot shown to him to the present Plot No. 2 which was smaller than the original one. The Plaintiff and her husband then agreed to buy the house that had been put up by the 1st Defendant on the original plot.

18. That upon possession of the Plot No. 2 in 1995, the 1st defendant fenced the same and built a temporal house which was being used by his care taker.

19. Upon the demise of the plaintiff’s husband, the 1st Defendant contacted the plaintiff on the issue of the payment of the house in the original piece of land but the plaintiff instead rented the same to the Fountain of Hope Secondary school.

20. The 1st defendant contended that he was not a trespasser and that he would not comply with the plaintiff’s demand letter.

21. The plaintiff in her testimony informed the court that the suit property was in her name and she had not consented to the sale of it by her husband and had her husband sold the same he would have informed her which he had not. That further she had not seen any documents to the effect that there had been a sale agreement between the 1st Defendant and her late husband.

22. That in response to the letter marked a exhibit 3, the plaintiff’s counsel wrote another letter to the 1st Defendants counsel dated the 24th September 2008 and produced as exhibit 4 to which the plaintiff asked for the agreement made between the 1st Defendant and the Plaintiff’s husband and further denied all allegations by the 1st Defendant to the effect that he had put up any structures on the land and /or that he took possession of plot No. 2 in 1995. And further still that the plaintiff’s husband was not indebted to the 1st Defendant.

23. The 1st Defendant’s counsel vide a letter dated the 14th October 2008 herein marked as exhibit 5, the wrote to the plaintiff’s counsel requesting for a copy of the title to the suit land, the same was sent vide a letter dated 22nd October 2008 and marked as Exhibit 6, the plaintiff’s counsel sent a copy of the Grant issued by the Government and requested for document from the 1st Defendant.

24. That vide a letter dated the 11th August 2009, the 1st Defendant’s counsel sent two (2) agreements dated the 11th February 1996 and 22nd March 1990 as a testimony to the agreement between the deceased’s husband and the Plaintiff herein, and demanding for the plaintiff to effect transfer of the land bought by the 1st Defendant.

25. The plaintiff testified that she was not privy to those agreements and further that since the suit land was in her name, she had not signed any agreement or consent to sell.

26. She testified that although her late husband used to sell land, he kept his records well and the agreements the 1st Defendant talked about were not part of the documents kept by her husband.

27. The plaintiff produced photos showing the house in which the 2nd Defendant occupied with permission of the 1st Defendant which was marked as Exhibit 8.

28. The plaintiff concluded by submitting that she was entitled to reliefs sought in the plaint because she had established her case.

Counsel for the plaintiff closed their case submitting that they would rely on the evidence and exhibits adduced in court.

29. I have reviewed and considered the uncontroverted evidence of the plaintiff in support of his claim and the issue for determination is whether the plaintiff is entitled to be declared as entitled to be registered as the owner of the suit property.

30. I have duly considered the evidence adduced before court by the plaintiff and find that the same was believable as it was backed by genuine documents and was not contested as the defendant did not appear at the hearing either in person or through counsel.

31. From the documentary evidence, vide a copy of the Title No. I.R 8574 that is to say land Reference No. 7644 produced as Exh. 1 the plaintiff herein proved that she was the registered proprietor of the said parcel of land on the 26th September 1962. Her registration as owner of the suit lands is a first registration.

32. The provision of section 24(a) and 25(1) of the Land Registration Act No. 3 of 2012 outlines the interests and rights of a registered proprietor as follows;

33. The law is very clear on the position of a holder of a title deed in respect of land.

Interest conferred by registration

Subject to this Act—

(a) the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and

Rights of a proprietor

(1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject

34. Section 26(1) of the Land Registration Act provides as follows:

“The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer … 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 …..and the title of that proprietor shall not be subject to challenge…”

35. This fact was uncontroverted by the Defendant who did not file his defence.

36. I have also looked at the correspondence exchanged between counsel for the parties as well as the two (2) agreements dated the 11th February 1996 and 22nd March 1990 between the Plaintiff’s husband and the 1st Defendant herein, the same does not disclose which plot was on sale save for indicating that:

‘Mr. Kangarua had accepted to take the plot offered to him by Mr. Gichuru measuring 0. 25 Acres’

37. The question that begs to be answered is what plot the two parties were talking about. I find that this is not sufficient proof that the deceased’s husband did offer for sale part of the suit land to the 1st Defendant herein as it is not clear what property was being purchased by the 1st Defendant herein.

38. In light of the above, this court finds that the Plaintiff has established that she is indeed the duly registered proprietor of the suit property and is entitled to all the rights appurtenant thereto.

39. It had been demonstrated that despite service, the Respondent failed to file his papers and/or defend the suit.

40. The court thus makes the following orders:

i. The 1st Defendant has no legal or equitable interest over LR No. 7644/1(Title No. I.R 8574) Nyahururu Municipality

ii. A permanent injunction is herein issued restraining the Defendants by themselves, agents, workmen or any persons claiming through or under them from entering, remaining, developing, trespassing, cultivating or in any other way interfering with LR No. 7644/1(Title No. I.R 8574) Nyahururu Municipality

iii. Costs to the Plaintiff at the lower scale since the suit was undefended.

Dated and delivered at Nyahururu this 7th day of December 2017.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE