[2022] KEHC 2685 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT MACHAKOS

ELC CASE NO. 190 OF 2017

MATHIAS OUKO ONDITI ODERA .............................................................PLAINTIFF

VERSUS

HANNINGTON KYALO MUTIE ..............................................................DEFENDANT

JUDGMENT

Introduction

1. In the Plaint dated 18th April, 2017, the Plaintiff averred that in or about 1995, he purchased land parcel number Mavoko/block 14/67 (the suit property) for Kshs 30,000/- from Ngunjigu Building Company Limited by acquiring shares with respect to the mother parcel of land known as L.R. No. 7340/44 and 7340/45 within Machakos County.

2. The Plaintiff averred that the suit property was subsequently registered in his name vide a lease dated 4th August, 2016 and a certificate of lease issued on 25th August, 2016 and that whereas he has been residing on the suit property, by a letter dated 25th March 2015, the Defendant, purported to claim the land.

3. In the Plaint, the Plaintiff has prayed for a permanent injunction to restrain the Defendant or his agents from claiming the suit property and for the costs of the suit.

4. In his Defence, the Defendant averred that he is the legal owner of the suit property having purchased it for value on 2nd April, 1992 and that an internal transfer was effected to him on 9th April, 1994 from the initial owner, Ngunjigu Building Company Limited for the entire parcels of land L. R. No. 7340/44 and 7340/45.

5. The Defendant averred that his name appears in the register of the members of Ngunjigu Building Company Limited as the owner of plot number 14/67 and that by way of a letter dated 14th October, 2002, Ngunjigu Building Company Limited forwarded a list of its members with their plot numbers to the Commissioner of Lands for issuance of title documents.

6. The Defendant averred that the Plaintiff fraudulently caused to be issued with a certificate of lease for the suit property. In the counter-claim, the Defendant pleaded that a declaration should issue that he is the owner of the suit property and for an order of eviction against the Plaintiff.

The Plaintiff’s case

7. The Plaintiff, Pw1, informed the court that on diverse dates between 30th May, 1994 and 18th December, 1995, he purchased land parcel number Mavoko/Block 14/67 for Kshs. 30,000/- from Ngunjigu Building Company Limited by acquiring shares relating to the mother parcel of land number 7340/44 and 7340/45 in Machakos County.

8. It was the evidence of Pw1 that between 1995 to date, he has been in possession of the suit property; that he has constructed a residential house on the land and that it was not until 25th March, 2017 that he received a demand letter from the Defendant’s advocate informing him that the Defendant had purchased the suit property from Ngunjigu Building Company Limited.

9. Pw1 stated that he has occupied the suit property for more than 22 years; that the Defendant is either a busy body or is a victim of fraudsters who purported to sell to him the land and that his claim should be allowed.

10. In cross-examination, Pw1 stated that he was in possession of the share certificate but not the sale agreement; that he has now seen the register of the members of Ngunjigu Building Company Limited; that he bought the land from the company and that ‘urban developers’ were just agents.

11. It was the evidence of Pw1 that although he commenced construction of his residential house on the land in 1995, he only moved in the house in the year 2015 and that his title document was processed in the year 2016.

The Defence case

12. The Defendant, Dw1, informed the court that he is the owner of the suit property having purchased it from one George Muhoshi Shabaya on 2nd June, 1992 and that after paying the agreed purchased price, he accompanied George Muhoshi to the offices of Ngunjigu Building Company Limited (the company) where they signed the internal transfer document for the suit property in his favour.

13. Dw1 informed the court that he was issued with an allotment letter by Ngunjigu Building Company for the suit premises; that the company required members to pay survey fees of Kshs. 1,500 which he promptly paid and that the officials of the company informed him that they had initially allocated George Muhoshi plot number 154 which was later set apart for public utilities, that is a church and a school.

14. According to Dw1, there was an exchange of the land whereupon he was allocated plot number 67 (the suit property); that the officials of the company crossed in the receipts plot number 154 and replaced it with plot number 67 and that his name was entered into the register as the owner of plot number 67.

15. Dw1 testified that the list of the owners of the plots was forwarded to the Commissioner of Lands vide a letter dated 14th October, 2005; that the company closed its operations and its documents were handed over to the Chief of Githunguri Location in Utawala for safe custody and that any inquiries concerning ownership of the plots belonging to the company were to be clarified at the Chief’s office.

16. It was the evidence of Dw1 that in the year 2016, he was informed that a private developer had trespassed on the suit land; that when he visited the Chief’s office, the Chief confirmed that his name was still in the register as the owner of plot number 67 and that the Chief did a letter confirming this position.

17. Dw1 informed the court in cross-examination that the Plaintiff refused to attend a meeting that was called by the Chief; that the Chief was in custody of the list of the members of the company and that it is the Chief who gave him a copy of the register of the members.

Submissions

18. The Plaintiff’s advocate submitted that under Section 25 and 26 of the Land Registration Act, the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of the court are indefeasible and that the onus was upon the Defendant to challenge the Plaintiff’s title by establishing fraud, misrepresentation, illegal acquisition or acquisition of the same by a corrupt scheme.

19. Counsel submitted that the Defendants purported to rely on the sale agreement of 2nd September, 1990 between himself and George Muhoshi; that the said agreement does not state the subject of the transaction; that the receipts from Ngunjigu Building Company Limited which the Defendant relied on were in respect of plot number 154 and not plot number 67 and that the register that the Defendant relied on is not authenticated by the company.

20. The Plaintiff’s advocate finally submitted that the Plaintiff’s claim is time barred having been lodged as a counter-claim after the expiry of 12 years since the Plaintiff took possession of the land and that the Plaintiff established his claim on a balance of probabilities.

21. The Defendant’s advocate submitted that the Defendant’s counter-claim is not time barred since time started running from the date the Plaintiff obtained the certificate of lease in respect of the suit property.

22. Counsel submitted that the Plaintiff failed to produce a sale agreement evidencing the acquisition of the suit land; that the Plaintiff was not even a member of the company and that the Defendant adduced evidence on how he acquired the suit property.

Analysis and findings

23. The Plaintiff’s claim herein is that he acquired land known as parcel

number Mavoko Block 14/67 (the suit property) from Ngunjigu Building Company Limited (the company) for Kshs. 30,000. According to the Plaintiff he took possession of the said land in the same year he purchased it and was issued with a lease and a certificate of lease on 4th August, 2016 and 25th August, 2016 respectively.

24. To prove that he purchased the suit property from the Company, the Plaintiff produced in evidence the receipts issued by the company dated 30th May, 1994, 31st May, 1995 and 2nd May, 1995 totaling Kshs. 31,500. The Plaintiff also produced in evidence a share certificate issued by the company for plot number Mavoko/Block 14/67.

25. The documents produced by the Plaintiff shows that on 18th December, 1995 the Commissioner of Lands issued to him a letter of offer in respect of the suit land. In the said letter of offer, the Plaintiff was required to pay Kshs. 1,600 to signify his acceptance of the offer.

26. The Plaintiff produced in evidence the lease that was issued to him by the Commissioner of Lands dated 4th April, 2016 and the certificate of lease that was registered in his favour on 25th August, 2016.

27. On the other hand, the Defendant’s claim is that he purchased the same land from one George Muhoshi Shabaya, a member of the company, in 1992. According to the Defendant, the said George Muhoshi was initially allocated plot number 54 which was exchanged later on with plot number 67 (the suit property).

28. It was the evidence of the Defendant that an internal transfer was effected in his name on 9th April, 1994. The Defendant produced in evidence the handwritten agreement between himself and George M. Shabaya dated 2nd June, 1992 and 8th August, 1992. Also produced in evidence is an acknowledgement by the said George of receipt of monies on 17th June, 1992 and 31st August, 1993.

29. The Defendant also produced receipts issued to him by the company for Kshs.500 and 1,500. In the receipt issued in 1994, plot number 54 was cancelled and replaced with plot number 67.

30. The Defendant further produced a letter dated 14th October, 2002 purportedly addressed to the Commissioner of Lands. In the said letter, the company informed the Commissioner of Lands of the “substitution of the list in your office with the new list duly signed by the committee officials, the area chief and the company’s advocate.”

31. The list of members of Ngunjigu Building Company Limited that was provided to the Commissioner of Lands vide the letter dated 14th October, 2002 was produced in evidence by the Defendant. In the list of members of the company that was produced in evidence, the Defendant’s name appears as number 67 and is indicated as the owner of plot number 14/67.

32. The list of members that the Defendant produced in evidence is neither dated nor is it signed by any official of Ngunjigu Building Company Limited. Indeed, the said list stops at member number 84, without any indication if indeed that is the last member or not.

33. The list of the purported members of the company having not been signed by any official of the company cannot pass as an authentic register, and is unreliable. Indeed, the Defendant having admitted that the said list was revised in the year 2002 and forwarded to the Commissioner of Lands, the question that arises is the whereabouts of the initial list, especially the list of 1992 which would have shown if indeed George Muhoshi was ever a member of the company.

34. The evidence before me shows that the Plaintiff was issued with a share certificate by the company after paying Kshs. 30,000 being membership fees and Kshs. 1,500 being survey fees. The payment of membership fees by the Plaintiff was done in 1994, whereafter the Plaintiff took possession of the Land.

35. The Defendant did not deny the Plaintiff’s assertion that indeed there is a residential house on suit property. The Defendant did not offer any explanation to this court why George, the purported vendor, did not give him a copy of the share certificate to confirm that indeed he was a member of the company in 1992 when he purported to sell the said land to him.

36. Furthermore, the purported agreement dated 2nd June, 1992 between the Defendant and George M. Shabaya does indicate at the top that the plot that George was selling was plot number “154” which was cancelled by hand and replaced with plot number “67”. The said cancellation was not countersigned by either George or the Defendant or the officials of the company. That being so, the agreement produced by the Defendant in respect of plot number 154 cannot pass as an agreement for plot number 67.

37. Having been issued with a share certificate by the company, the allocation of the suit land to the Plaintiff was on the basis of his membership. That being so, he did not need to enter into any sale agreement with the company.

38. The evidence before this court shows that the Commissioner of Lands issued to the Plaintiff the letter of offer dated 18th December, 1995 in respect of land known as Mavoko/Block 14/67 based on the list of the members of the company as at that time. The Commissioner of Lands then issued to the Plaintiff the lease dated 4th August, 2016 and caused the Plaintiff to be registered on the owner of the suit property on 25th August, 2016.

39. The Defendant did not offer any plausible evidence to show that the certificate of lease that was issued to the Plaintiff on 25th August, 2016 was procured fraudulently, illegally or through a corrupt scheme. Indeed, the Defendant did not offer any evidence to show that before the Plaintiff was issued with the title documents, the interest in the suit property had passed to him.

40. In conclusion, it is the finding of this court that it is the Plaintiff who is entitled to the suit property and not the Defendant. In fact, the Defendant did not inform this court the purchase price that he paid to the George Muhoshi or that the said George Muhoshi ever owned the suit property.

41. For those reasons, I allow the Plaintiff’s claim as follows;

a) A permanent injunction be and is hereby issued restraining the Defendant, his agents, employees, servants, assigns and/or personal representatives, jointly and severally, from alienating, removing the Plaintiff, claiming ownership, destroying, taking possession and/or interfering with the Plaintiff’s ownership and possession of all that parcel of land known as Mavoko/Block 14/67.

b) The Defendant’s counter-claim is dismissed with costs.

c) The Defendant to pay the costs of the suit.

DATED, SIGNED AND DELIVERED VIRTUALLY IN MACHAKOS THIS 3RD DAY OF FEBRUARY, 2022.

O. A. ANGOTE

JUDGE

IN THE PRESENCE OF;

NO APPEARANCE FOR THE PLAINTIFF

NO APPEARANCE FOR THE DEFENDANT

COURT ASSISTANT: OKUMU