[2019] KEELC 2765 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT AT THIKA

ELC CASE NO. 507 OF 2017

(FORMERLY NAIROBI SUIT NO.2532 OF 1992)

MARY WAMBUI KINYANJUI...............................................PLAINTIFF

VERSUS

NGABA GATHIRUA KIBABUA................................1ST DEFENDANT

JACINTA WAIRIMU MUTURI.................................2ND DEFENDANT

HANNAH NJERI NJIHIA..........................................3RD DEFENDANT

JUDGMENT

By aPlaint dated 8th May 1992 and Amended on the 29th June 2011, the Plaintiff herein brought a claim against the Defendants and sought for the following orders:

a) That the Honourable court issue an order that Land Parcel Number Githungiuri/Ikinu/1496 lawfully belongs to the Plaintiff under the provisions of the Registered Land Act, Cap 300 Laws of Kenya.

b) An order that the District Surveyor Kiambu District or any other competent and licensed surveyor to visit the suit premises and thereat determine the area boundaries of the suit premises with specific reference to Maingoroti River the southern natural boundary and delineate the boundary between the Plaintiffs Land parcel Number Githunguri/Ikinu 1496 and the Defendants land parcels Number Githunguri/Ikinu/3007, Githunguri/Ikinu/3008, Githunguri/Ikinu/3009.

c) Order and provide for the costs of this suit or any other order relief that the court may deem meet and just to grant.

In her statement of claim, the Plaintiff claimed that she is the registered proprietor of parcel of Land Githunguri/Ikinu/ 1496, together with the improvements and that the 1st defendant was the registered proprietor of land parcel number Githunguri/Ikinu/436, which borders the Plaintiff’s land with the Maingoroti River forming their common boundary. She alleged that the 1st Defendant has since subdivided his land into parcels No. Githunguri/Ikinu/3007, 3008 and 3009. She further alleged that the Defendants have claimed to own portion of the suit premises bordered by a natural boundary namely Maingoroti River, to the south and had involved Administration officials in the dispute to influence the allegations in the defendants favour. The Plaintiff further alleged that a written notice dated 7th May 1992, purported to be a quit warning was addressed to her and that she is now faced with eviction from the suit premises. It was her contention that the 1st Defendant has by inference and acts encroached upon the suit premises and has declared possession and thus she continues to suffer irreparable loss.

The suit is contested and the 1st Defendants filed a Defencedated 22nd May 1993,and Amended on6th July 2011,together with a Counter claim.The 1st defendant denied the Plaintiff’s allegations as contained in the Plaint and contended that the suit premises border his parcel of land previously known as Githunguri/Ikinu/436, measuring 6. 7 acres while the suit premises comprises 4. 1 acres. He further contended that the boundaries of the parcels of land extend up to the stream referred to in paragraph 3 of the Defence and run cross the island created by the said stream and Maingoroti River. He further alleged that he has been lawfully claiming a portion of 0. 3 acres, being an island cut out of a natural stream bordering the two parcels of land and Maingoroti River,which island comprises part of the 1st Defendant’s parcel of land and which the Plaintiff has wrongfully entered and encroached on the island and prevented the 1st Defendant from using the portion of land. He further alleged that he referred the boundary dispute to the Land Registrar and denied that he influenced a favorable outcome. He further denied that he intends to evict the Plaintiff from the suit premises.

He filed his counterclaim and prayed for the following orders;

i) Delivery of the said portion of land comprising 0. 3 acres or thereabouts being the island created by the natural stream called Maingoroti River

ii) An injunction to restrain the Plaintiff or her servants or agents or otherwise howsoever from entering or using the said island

iii) Mesne profits.

iv) Costs of this counterclaim.

v) Any further or other relief that this Honourable Court may deem just and fit to grant.

After various Applications, the suit was finally set down for hearing wherein the Plaintiff called 3 witnesses and the Defendant called two witnesses.PW1 and PW2 testified on the 27th of July 2017 whilst PW3 testified on the 5th December 2017. The 1st Defendant and his witness testified on the 1st March 2018 and closed their case.

PLAINTIFF’S CASE

PW1; Mary Wambui Kinyanjui, the Plaintiff herein stated that she recorded her statement dated 28th January 2011 and adopted it as evidence in court. She testified that she has sued the Defendants in relation to initial parcel of Land Githunguri/Ikinu/522 which was later changed to 1496. She testified that the land initially belonged to her father Gachire Kinyanjui, and was transferred to their mother Serah Wambui Gachire. She further testified that the land was later divided into two portions that is for Edward Muchau Gachire her stepbrother and herself. She stated that she knows about Githunguri/Ikinu/436, and that the land belongs to the 1st Defendant herein. It was her evidence that the 1st Defendant is her neighbor and that she has sued him because he has encroached on her land. She testified that the 1st Defendant has taken a portion of her land and that their land are divided by River Maingoroti and that she plants arrow roots at the River bank and dug a trench and that she did it in the year 1979.

It was her evidence that when subdivision was done, the trench was not there and that she is the one who dug the trench after the land was subdivided. It was her evidence that the 1st Defendant encroached on the suit land in 1986. Further that she inherited the land in1970 and in that year the 1st Defendant had not claimed her portion of land. She stated that before the trench was used to draw the water from the land and taking it to the river to prevent damage to her land. She also confirmed that no other person has encroached on her land. She further testified that after the 1st Defendant encroached on her land, she reported the matter to the Assistant chief .It was her testimony that the Assistant chief then called the Land Registrar who came to the ground and told them to use the village elders to resolve the boundary dispute. She testified that the 1st Defendant did not cooperate and instead brought a private surveyor.

She asked the court to direct the Land Registrar to go to the ground and point out the boundary and to further direct the 1st Defendant to

return a portion of the land that he has encroached on and that the River has now changed its course and therefore urged the court to allow her claim.

On cross examination she reiterated that the land is hers and that she has a title deed for the suit land and the same is in her name and that of her mother, Serah Wambui Gachire and that Gachirewas her father. She further testified that the name Kinyanjuiis her husband and that Gachire Kinyanjui,was her husband’s father and who is now deceased. She further testified that Serah Wambui Gachire is her mother in law.

She also testified that the landNo.1496 was 5. 2 acres and that Muchaiwas given 1 acre while she has 4. 2 acres. She further testified thatL.R 1496is 4. 10 acres and that she does not know the size of the 1st defendant’s land. She gave evidence that when she got married in the 1970’s she dug the trench and that later Ngaba encroached on her land. It was her further testimony that the 1st Defendant complained to the Assistant Chief and that the Land Registrar and herself were summoned in1992. She is aware that a decision was made by the Land Registrar, stating that the portion was for Ngaba and she then filed the present suit. It was her testimony that someone interfered with the mutation form but

she does not know who interfered with it. She further gave evidence that the trench that she dug drains at the river and that she cultivates between the trench and the river and that she has not been cultivating on the defendants land.

On further re-examination she testified that the issue in dispute is one small portion of 1496 and not the whole portion of land and that the portion in dispute is an 1/8 of an acre. It was her contention that that somebody interfered with the boundary since she is the one who placed the trench.

PW2; Hillary Mwangi Mbuthia,stated that he recorded a witness statement dated 28th January 2011, and asked the court to adopt it. He confirmed that he knows the Plaintiff and the 1st defendant and that they are his neighbours. He further testified that at the time of demarcation and consolidation, the plaintiff and the 1st Defendant were his neighbours. He also testified that the River is the boundary of their separate parcels of land. Further that the dispute between the parties is of the River and a small portion of land and that the river has never changed course and that the 1st defendant has taken a small portion of land from the Plaintiff’s side. It was his further testimony that he did not know if the trench was dug by anyone and that he has not seen the trench dug by the Plaintiff and that there is no any other person on the 1st Defendant’s side of the parcel of land. He confirmed that he bought his land before demarcation and that the Plaintiff’s father in law had no dispute but the 1st Defendant always claimed that portion of land.

On cross examination he stated that he knew the1st defendant and could not be able to identify him now. She testified that that Serah Wambui was a mother in law to Mary Wambui. It was his further testimony that Mary Wambui was married to Serah Wambui’s son called Gachire and she was later married to Serah wambui. It was his testimony that when the Plaintiff got married the land dispute arose and the matter was even discussed at chief’s office who confirmed that the plaintiff had dug that trench. He testified that he has gone to the boundary and the river course was changed by the 1st defendant and that the trench drains the water to River Maingoroti and that the trench does not drain water from the Plaintiff’s side and that the two parcels are sliding to the River and there is no need of trench. It was his evidence that he does not know who cultivates the portion of land that is divided by the trench dug by the plaintiff.

On further re-examination he testified that the river divided the two parcels of land and that there is no parcel of land that has crossed on the other side of the river. It was his evidence that people fetch water from the river and cultivate the same.

PW3 Joseph Muchungu, the District Surveyor, stated that on 17th October 2017, he visited land parcels No.Githunguri/Ikinu/1496 and Githunguri/Ikinu/436as there was a dispute between the two parcels. He stated that Githunguri/Ikinu /436, had been subdivided into three parcels 3007, 3008 and 3009and he wanted to establish the boundary between the two parcels. He testified that he found that there are two rivers which flows from a small island and that the island is the disputed area. He further testified that the island is approximately 0. 3 acres. He found that the boundary of the affected parcels are used in the R.I.M and also found that the island belongs to Land parcels no. 436, owned by Ngaba Gathirua Kibabua .He stated that he wrote a report which he presented in court. He further testified that as far as the survey point, the two rivers are the ones that caused the confusion and that one river has a lot of water andthe other one is almost dry and that the boundaries were well established. He stated that when they went to pick the boundaries, there was a small area that the boundary was not well established between parcel No. 3007 and 1238.

He also testified that on his report, there are marks which shows that he was dealing with the said parcel of land and that there are braces which shows that area is one and the same. He stated that his report is based on what happened after the subdivision and that the old boundaries do not change. He stated that the braces mean that is a continuation of the other piece of land and that there is a problem between no.3009 and 1238.

It was his further testimony that all surveyors use the same method to arrive at a finding. He testified that they only have one map that comes from the Directorate of Survey who is the custodian of all maps. He further testified that to confirm the boundaries, one must compute the acreage add to the registered acreage. The acreage on the ground and the registered acreage was equal and that the acreage is always approximated guided by the maps. He testified that the second map he used to prepare the report is from the Directorate of Survey. He further testified that from his report L.R No. 1496 ,after the river, there was a curved area. He stated that he dealt with the ground and the Map.

On cross examination, he testified that he took actual measurements in the presence of both parties. He gave evidence that the shaded area is part of 436 and not part of 1496and that there is a small portion where the boundary is not marked and it is between3007 and1238and that the area does not affect 1496.

DEFENCE CASE

DW1 Jeremiah Ngaba Gathiruathe 1st Defendant herein adopted his witness statement dated 7th May 2011. He further testified that the Plaintiff was married to Serah Wambui Gachire, who left the land to the Plaintiff. He further testified that Serah Wambui Gachire was not born on the suit land .It was his testimony that the boundary dispute died when the boundaries were fixed in 1957. He planted boundary features on the common boundary and that there is a small river and the boundary of the two parcels is Maingoroti River. That he reported the matter at Kiambu lands office and the Surveyor went and did survey work and the Surveyor’s report was produced as D. Exhibit 1. He also produced the Map of the area as D.Exhibit 2 and stated that he has never changed the course of the river.

On cross examination he testified that he was given his land in 1957 and that was the same year that Serah Wambui Gachire also got her land. He testified that he had no dispute until the Plaintiff got in the land and she is the one who had encroached on his land. It was his testimony that the Surveyor came and aligned the boundaries and further that there is a river that divides the two parcels of land. It was his evidence that River Maingoroti is not the boundary and that the small river (tributaries) has divided the parcels of land. He further testified that River Maingoroti is on his side and that the boundary features (Mikungungu) are on the common boundary and that he is the one who prunes the said Mikungungu.

DW2 Dominic Kinya Ngaba also adopted his witness statement dated 16th May 2011 as his evidence. He testified that Ngaba Gathirua is his father. He also testified that there are two rivers being River Maingoroti and a small other river and there is a small island between the two rivers and that the Island belongs to his father. He testified that the boundary is River Maingoroti and not the stream to the river.

On cross examination he stated that there are two rivers and that River Maingoroti borders the two parcels of land. It was his further testimony that the main River separates the two parcels of land. It was his further evidence that the parcels of land were alienated in 1958 and that the Plaintiff had two families and that the island was initially cultivated by the 1st Plaintiff who is now deceased and she left the land to the 2nd Plaintiff. He further testified that he does not know why his father has not retrieved his title deed. It was his testimony that he does not agree with the Sketch, map produced as Exhibit 1.

After the close of Viva Voce evidence, parties filed their written submissions which the Court has carefully considered.

This Court has also carefully considered the available evidence and the exhibits thereto. There is also no doubt that the Plaintiff and the 1st defendant are neighbours whose land border each other. There is no doubt that though the Plaintiff has not produced a certificate of title to confirm that she owns land parcel No. Githunguri/Ikinu/1496, she has lived on the suit land since 1970’s.It was acknowledged by all parties that Githunguri/Ikinu/1496, is a subdivision of Githunguri/Ikinu/522 which was initially owned by the fore kins of the Plaintiff herein.

It is also acknowledged by both parties that the Plaintiff was not born on the suit land and she is in occupation by virtue of marriage. In her testimony, the Plaintiff averred that she was married to one Kinyanjui Gachire,who was a son to Serah Wambui Gachirethe initial owner of the land parcel No. Githunguri/Ikinu/1496, and therefore Serah Wambui Gachire was her mother in law. However, the 1st Defendant and PW2 alleged that the Plaintiff herein Mary Wambui Kinyanjui was married toSerah Wambui Gachire, who did not have children. Irrespective of who had married the Plaintiff herein, it is not in doubt that she has been in occupation of Githunguri/Ikinu/1496 for a while now. There is also no doubt that the other resultant subdivision of Githunguri/Ikinu/522 which is Githiunguri/Ikinu 1495 owned by oneEdwardis not in dispute and not involved in the suit.

Further it is evident that the 1st Defendant owned land parcel No.Githunguri/Ikinu/436, which borders on Githunguri/Ikinu/1496that is utilized by the Plaintiff herein, since she did not produce certificate of ownership for the Court to find and hold that she is the absolute and indefeasibleowner of the said parcel of Land.

Further it is not in doubt that between the two parcels of land runs River Maingoroti which the parties have alleged forms the boundary of the two parcels of land Githunguri/Ikinu/1496 and Githunguri/Ikinu/436, which was owned by the 1st Defendant. Further it is evident that the suit herein was filed in 1992, and has been in the Judicial system for that long because of various factors as at one time the suit had even been dismissed for non attendance of the Plaintiff but it was later reinstated after the Plaintiff filed an Application to that effect.

Further from the Court’s record and the exhibits produced in Court, It is evident that land parcel No. Githunguri/Ikinu/436, is not in existence now as it was subdivided into three portions to give rise to Githiunguri/Ikinu/3007, 3008, and 3009. It is also evident that Githunguri/Ikinu 3007,is now registered in the name of the 2nd Defendant Jacinta Wairimu Muturi and Githunguri/Ikinu/3008 is registered in favour of Hannah Njeri Njihia, the 3rd Defendant and Githunguri/Ikinu /3009 remained in favor of the 1st Defendant Ngaba Gathirua Kibabua.

From the available evidence, it is evident that the dispute herein is a boundary dispute between the owner of Githunguri/Ikinu/1496, and 436. There was a common agreement that River Maingoroti forms the boundary of the two parcels of land. There was also common evidence that there is a small stream running between the two parcels of land which later joins the bigger Maingoroti River and thus an island is formed. From the Surveyors report, this Island measures 0. 3 acres and it is the bone of contention between the Plaintiff and the 1st Defendant.

The Plaintiff in her evidence alleged that River Maingoroti is the common boundary of the two parcels of land. She further averred that the Island formed by the small stream and River Maingoroti is on her parcel of land and her family and herself have utilized this small island of 0. 3 acres,since the initial land was demarcated and registered between 1957/58. The said initial land was Githunguri Ikinu/522. That she is still utilizing the land and has planted arrow roots on the said land and has also dug a trench to drain water from the said Island.

However the 1st Defendant and his witness alleged that the Island is on the 1st Defendant’s land and that they lived peacefully until 1980’s when the Plaintiff herein got married to Serah wambui Gachire,the former 2nd Plaintiff and then Plaintiff caused disharmony by claiming the parcel of land. That due to the said disharmony the 1st Defendant reported the matter to the Land Registrar Kiambu, and one M.K Njogu, Land Registrar visited the disputed parcelsof land and prepared a report dated 19th May 1992. In the said Report, the Land Registrar considered that;

‘’According to the R.I.M(Registry Index Report) the disputed portion was part of Githunguri/Ikinu/436, which was registered in the name of the 1st Defendant.

A legend was attached to the said report which showed the location of Githunguri/Ikinu/1496 and 436,with a shaded area marked B. The shaded area on the map produced in court was the disputed Island which according to the Boundary Dispute Report on Githunguri/Ikinu/436 and 1496 belong to the 1st Defendant.

It is also evident from the said map that there is River Maingoroti which is allegedly the boundary of the two parcels of land.

Further it is evident that the court has severally ordered that the Land Registrar and District Surveyor Kiambu do visit the two parcels of land and prepare a Report over the disputed boundary.

The Court has considered the Court record and seen that on 14th April 1993,one C. Mwangi Director of surveys prepared a Report and confirmed that the disputed Island was part of land parcel no. Githunguri/Ikinu/436, which was owned by to the 1st Defendant. However, there were crops on the disputed portion of land which he was informed belonged to the Plaintiff who had been utilizing the land since the time of land demarcation.

Again the Court has seen another report by Thagishu Associates who had visited the ground on 5th November 2012, in relation to theboundary dispute over Githunguri/Ikinu/1495,1496 formerly 522and Githunguri/Ikinu 3007,3008and 3009 formerly Githunguri/Ikinu/436 and concluded that Maingoroti River cuts through part of the original Land Parcel No. Githunguri/Ikinu/436. There is another finding of the District Land Surveyor, JD Muchunguwho was PW3 dated 17th October 2017. He stated that the correct boundary was according to the available R.I.M and that the disputed Island which compromises of 0. 3 acreswas part of Githunguri/ Ikinu/436, which formerly belonged to the 1st Defendant. He produced the report as an Exhibit in court together with the map and GPS positioning. From the evidence of the Land Surveyor and the Land Registrar, then there is no doubt that the disputed Island measuring 0. 3 acres is part of former Githunguri/Ikinu/436, which belonged to the 1st Defendant herein Ngaba Gathirua Kibabua.

The Plaintiff brought this matter to Court because she was dissatisfied with the findings of the Land Registrar which Report was prepared in 1992. However the subsequent visits by the Surveyors have confirmed that the disputed Island is part of former land parcel No. Githunguri/Ikinu/436 belonging to the 1st Defendant. The Court finds that the 1st Defendant was right when he referred the dispute to the Land Registrar Kiambuas the Land Registrar is the one mandated to fix boundaries of parcels of land.

The District Surveyor Mr. Muchungu(PW3) confirmed that the Registry Index Map (R.I.M)that he relied on clearly indicated the correct boundaries and as provided by Section 18(1)of the Land Registration Act, it is deemed that the said R.I.M and the filed plan indicate the approximate boundaries and the approximate situations only of the parcels of land.

The Land Registrar was the one who was mandated to deal with this dispute concerning the boundaries of the registered land. The Land Registrar did so and prepared a Report dated 19th May 1992. That conclusion of 1992 has been reiterated by the subsequent visits by the District Surveyor and the Court finds no reason to divert from the said findings. The Court therefore finds and holds that indeed the disputed Island measuring approximately 0. 3 acres is part of former land parcel No. Githunguri/Ikinu/436 which has now been subdivided into Githunguri/Ikinu/3007, 3008 and 3009.

For the above reasons the Court finds that the Plaintiff has not proved her case on the required standard of balance of probabilities However, the 1st Defendant has discharged his onus of prove on the required standard of balance of probabilities that the disputed land compromising of 0. 3 acres belongs to him and therefore the Court finds, his counter claim merited and is allowed in terms of prayers no (i) and (ii) with an award of General Damages in the tune of Kshs. 100,000/=. The 1st Defendant is also entitled to costs of the suit in the counter claim.

Having now carefully considered the available evidence, the Court finds the Plaintiff’s suit is not merited and it is dismissed entirely with costs to the 1st Defendant.

Further the Court finds the 1st Defendant counter claim contained in the amended Defence dated 6th July 2011 is merited and it is allowed in terms of prayers no. I, II and General Damages of Kshs. 100,000/=. He is also awarded Costs of the Counter claim.

It is so ordered

Dated,Signed and Delivered at Thika this 14thday of June 2019

L. GACHERU

JUDGE

14/6/2019

In the Presence of

Mr.Kinyanjui for the Plaintiff

N/A for the Defendants

Lucy Court Assistant