Madina Merida Kamau aka Masina Metrida Kamau (Suing in her own capacity and also as the Administrator of Estate of Ali Kamau Said [DCD]) v Embakasi Ranching Co Ltd & 2 others

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO 101 OF 2017** **MADINA MERIDA KAMAU aka Masina** **Metrida Kamau [suing in her own** **Capacity and also as the Administrator of** **Estate of ALI KAMU SAID, [DCD] - PLAINTIFF** **VS** **EMBAKASI RANCHING CO LTD - 1ST DEFENDANT** **PETER NDUNGU MUHURI - 2ND DEFENDANT** **GEORGE MUCHIRI MUHURI - 3RD DEFENDANT** **JUDGMENT** **The Pleadings** 1. Vide an amended plaint dated 22/5/2018, the Plaintiff filed suit against the defendants seeking the following orders; 1. The Plaintiff prays that there be a declaration that the deceased and her are the lawful allottees and thus exclusive owners of Plot Nos. P1107, P1107B, P1106 and P1106B [suit lands] situated at JKIA Embakasi Ranching farm comprised in LR No 12715/549. 2. The 1st Defendant, their agents, servants and/or employees, from evicting the plaintiff, selling, dealing with, trespassing, alienating, damaging, constraining or destroying, and/or otherwise interfering with the developments upon the plaintiff's suit lands. 3. That the 1st Defendants do facilitate the issuance and processing of the title deed /lease thereof as had been envisaged at the time of allotment and allocation of the plots; alternatively, that the plaintiff be compensated for the actual market value of the suit lands. 4. Damages and mesne profits for the losses suffered as a result of the defendants' continued interference and preventing the plaintiff from quietly enjoying her suit lands. 5. Costs of the suit. 2. The Plaintiff avers that she and her late husband were members of the 1st Defendant and held two shares, entitling them to two bonus shares, for a total of four shares. Upon payment of the requisite sums, the 1st Defendant allocated the suit lands to them, and they took possession and erected residential rental houses, which the 1st Defendant has now demolished with the sole intention of reallocating the lands to other persons, on account of the lands having increased markedly in value. 3. The 2nd and 3rd Defendants claim ownership of the suit lands in ELC 41 OF 2015, which is pending in court. The Plaintiffs aver that the 2nd and 3rd Defendants have no claim to the suit lands and that their claim ought to be dismissed. 4. The 1st Defendant, in its defence dated 16/6/2023, denied the Plaintiff’s claim and stated that it has been the legal owner of LR No 12715/549 since 1991, having acquired it from Syokimau Farm Limited. 5. In addition, it stated that the parcel of land for which shares were subscribed and allocated to her members/shareholders comprised parcels Nos. Nairobi/Block 105 and 136, not the suit property alleged by the plaintiff. It denied that the plaintiff was ever in occupation of the suit lands. 6. With respect to LR No 12715/549, it was contended that the suit land was subdivided by the 1st Defendant, sold and transferred to third parties, and that the plaintiffs' prayers are incapable of being granted at this stage, as the 1st Defendant no longer owns the land. 7. Further, it stated that the plaintiffs and the deceased were subject to full payment of the share capital due on the subscribed shares. The 1st Defendant denied that the plaintiffs and the deceased were fully paid up, and therefore not entitled to the plot allocations as alleged, and sought to put the plaintiffs in strict proof. 8. PW1 – Metrida Kamau Ali, the witness, gave evidence-in-chief and relied on her witness statement dated 9/2/2017. She produced documents marked PEX Nos 1-15 in support of her case. She stated that she has sued on her own behalf and that of her deceased husband. She and her husband held share certificates Nos. 10320 and 10321, each for 2 shares, entitling them to 1 share each, for a total of 4 shares. Based on their shareholding, the 1st Defendant allocated 4 plots, being the suit lands, to them on 25/6/1987. 9. The plots were a subdivision of the 1st Defendant’s LR No 12715/549 [mother title], which had been subdivided into 20 plots. They took over the plots and began developing rental houses until the 1st Defendant interfered with their intention to repossess the plots for reallocation to third parties. The interference was reported to the police station, but it did not stop. The 1st Defendant demolished the houses on three of the plots and has placed a container on the 4th plot. 10. She added that the 1st Defendant acquired the mother title in 1991 from Syokimau Farm Limited and subdivided the land into 20 plots. See page 22 of the trial bundle. 11. During cross-examination, the witness stated that she was allocated plots P1107 and P1106 from LR No 10904/2, which were Syokimau lands. The Chairman of the 1st Defendant showed them the lands at Syokimau, and they settled there in 1987. Together with others, they formed the Syokimau Water Company to supply water to the residents. She annexed evidence of the 1998 water application. 12. The 1st Defendant did not offer evidence during the hearing. 13. DW1 – Patrick Kivai Nduva, the Managing Director of Solutions General Limited, testified on behalf of the 2nd Defendant and, in evidence-in-chief, relied on his witness statements dated 25/4/22 and 27/4/22. He produced documents marked DEX 1-12 in support of his defence. 14. He produced copies of titles for LR Nos 12715, 12716, and 12720 in the name of Solutions General Limited, which was acquired in 2018. The parcels are in Syokimau, at the border between Machakos and Nairobi. He stated that he did not purchase the plots from Utawala but from Syokimau. He further stated that neither he nor Solutions General Limited is a party to the suit. **The written submissions** 1. At the close of the hearing, the Plaintiff and the 1st Defendant filed written submissions, which I have read and considered in reaching the judgment. **Analysis and determination** 1. Having considered the pleadings, the evidence adduced at the hearing, and the written submissions, the key issue for determination is whether the plaintiff has proved her case on the balance of probabilities. 2. The Plaintiff's case is that she and her late husband were members of the 1st Defendant. By virtue of their membership, they were issued with share certificates Nos 10320 and 10321, entitling them to two shares. As members, they were also entitled to bonus shares, bringing the total to four. The corresponding land allocation comprised four parcels, being parcel Nos. P1106, P1106B, P1107, and P1107B. [The B denotes a bonus share]. They paid for the shares, were shown the lands by no less than the chairman of the 1st Defendant, took possession, and constructed rental houses, which the 1st Defendant subsequently demolished with a view to allocating them to third parties. She reported the matter to the Police Station, but the report elicited no action from the law enforcement officers. She visited the offices of the 1st Defendant several times, but to no avail; hence the filing of the suit. 3. The 1st Defendant, on the other hand, admits that the Plaintiff and her husband were its members. However, they were allocated plots in Dandora, not in Syokimau, as averred by the Plaintiffs. The Plaintiffs have led no evidence to show that they were ever allocated the suit plots. 4. Section 116 of the Evidence Act provides that the burden of proving that the suit land belongs to the Plaintiffs has been placed on the shoulders of the claimants. The adage that he who avers must prove applies. It states as follows; “When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner. 1. The burden of proof therefore rests with the Plaintiff, however much the suit is far and large undefended. The 1st Defendant failed to lead evidence at the hearing. 2. It is not in dispute that the Plaintiff and her husband were members of the 1st Defendant, holding share certificates Nos 10320 and 10321, as set out in the share certificates issued in 1985. 3. On the basis of their shareholding, they were allotted plots Nos. P1106 and P1107 in 1987. Allotment letters Nos. 000013 and 000014 were issued for plots Nos. P1106 and P1107, each representing one share. The allotment letter read in part as follows; “provisional letter of allocation of plot in the company's land situated in the farm off Komorock Road, covering LR No 10904/2 for approximately 2,024 ha, leasehold.” 1. The parcel of land described above is distinct and distinguishable from LR No 12715/549, which the Plaintiff asserts encompasses the disputed lands. LR No 12715/549 is located north-west of Athi River Township in Machakos County, within the Syokimau area. No evidence was adduced to show the nature of any subdivisions on LR No 10904/2 or of the subject plots within LR No 10904/2. Furthermore, a perusal of the title to LR No 12715/549 shows that the 1st Defendant acquired the land on 26/7/91; therefore, the 1st Defendant could not have allocated the suit lands to the Plaintiff in 1987, before acquiring the land from Syokimau Farm Limited. The subdivision plan referred to by the Plaintiff relates to LR No 12715/549, not LR No 10904/2. On that basis, the court finds that the Plaintiff has not proved her case. 2. Secondly, the plaintiff's case is that she and her late husband were allocated bonus shares representing two additional plots. The plaintiff led no evidence in support of the issuance of any bonus shares or plots from LR No 21715/549. 3. I think I have said enough to show that the plaintiff has not discharged the burden to prove her case. 4. The plaintiff's case is dismissed. 5. I make no orders as to costs. 6. Orders accordingly **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2026 VIA MICROSOFT TEAMS.** **J G KEMEI** **JUDGE** **Delivered Online in the Presence of**; 1. Ms Talu HB for Mr Mugalo, for the Plaintiff. 2. Mr Ochieng for the 1st Defendant 3. Mr Ochieng HB for Mr Onduso, for the 2nd Defendant 4. N/A for the 3rd Defendant 5. C/A – Mr Amos