[2014] KEHC 4946 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

ENVIRONMENT & LAND COURT

CIVIL CASE NO.59 OF 2008

MBAU SAW MILLS LTD........................................PLAINTIFF

VERSUS

THE HON. ATTORNEY GENERAL for and

on behalf of the COMMISSIONER OF LANDS)

KARATINA TOWN COUNCIL)........................DEFENDANTS

GEOFFREY KARUNGARU KABUA )

J U D G M E N T

Mbau Sawmills Limited (hereinafter referred to as the plaintiff) sued the Hon. Attorney General, Commissioner of Lands, Karatina Town Council and Geoffrey Karungaru Kabua (hereinafter referred to as the defendants).

The plaintiff claims that at all material times, he was the lawful owner of all that parcel of land known as Karatina Block 1/639 having purchased the same from one Joseph K. Mugambi in or on about 20th March 1985. Since 1985 the plaintiff has enjoyed peaceable and uninterrupted user and exclusive possession of the said plot/piece of land and has paid all outgoings to the relevant authorities as required by the instrument of allocation. In or around early May, 1993 the Commissioner of Lands, unlawfully purported to allocate the said plot and proceeded to issue a certificate of lease of the above plot to the 3rd defendant.(now 2nd Defendant) The plaintiff contends that the re-allocation of the plot by the Commissioner of Lands to the 2nd defendant is illegal, unlawful, has no basis in law and is unconstitutional and ought to be annulled, quashed and set aside. The plaintiff alleges that at all material times all the defendants knew the plot belonged to the plaintiff and contends that the re-allocation thereof has been done secretly and in concert between all the defendants.

The plaintiff prays for a declaration that the allotment of Karatina Block 1/639 by the Commissioner of Lands is illegal, unconstitutional and void ab initio and that the said plot belongs to the plaintiff and seeks an order directing the Commissioner of Lands and the Principal Lands Registrar to cancel the registration of the 2nd defendant as proprietor and the registration of the said plot in the name of the plaintiff and further prays for an injunction against the 2nd defendant from interfering with the plaintiff's user and enjoyment or otherwise dealing with the plot. Last but not least, he prays against all the defendants jointly and severally for damages and costs of the suit.

On the 7/7/1993, the 2nd defendant filed a defence whose import is that he does not know the allegations in paragraph 6 of the plaint, and stated that if the plaintiff did occupy the suit property (which he denied), the plaintiff was a user of the plot, which is vacant and the said use of the plot did not confer upon the plaintiff any proprietary right or claim.

He did not admit that the Commissioner of Lands, who is cited as 1st defendant, committed any unlawful act and asserts that there was nothing wrong about the transmission of the suit property to the 2nd defendant, which act was legal. He denied the allegation that he knew that the plaintiff had any right or proprietary claim in the said plot and asserted that the allegations of the plaintiff in paragraph 9 of the plaint were untrue and without any knowledgeable foundation, being mere supposition on its part, lacking any credence or merit.

The 1st defendant filed a defence on 25/3/1998 denying the contents of paragraph 5 of the plaint and stated that if there was any sale and or transfer of all that piece of land known as Karatina Block 1/639 to the plaintiff the same was done without the consent of the 1st defendant and therefore the said transfer was unlawful.

In answer to paragraph 7 and 8 of the plaint the 1st defendant stated that the allocation of Karatina Block 1/639 to the 2nd defendant and the subsequent issue of a certificate of lease to him was done lawfully and in accordance with the laid down procedures governing such transactions. The plaintiff's allegations of illegality and unconstitutionality were therefore denied in toto and the plaintiff was put to the strictest proof thereof.

When the matter came up for hearing on the 3/4/2001 PW1 ELIUD MATU WAMAYE, a businessman and former MP Mathira constituency and Chairman of the plaintiff testified that he knew the property described as Karatina/Block 1/639 which was in the Northern side of Karatina Town. The initial purpose of the plot was for the development of a lorry depot but the council agreed that it be used for different purposes. According to Wamae, on the 30/8/1971, the Ag Town Planning Adviser wrote a letter to the clerk to the County Council, Nyeri advising the latter to properly fence the plot at the frontage since lorry depots in his view were not beautiful sites. Attached to the letter was a survey plan. Both the letter and the survey plan refer to the plot as unsurveyed lorry depot. He produced an allotment letter dated 21/10/1971 indicating that the plot was allocated to one Joseph K. Mugambi. The Town clerk Karatina Town Council wrote a letter to the Commissioner of Lands indicating that the property had been transferred to the plaintiff.

He further produced minutes of the council meeting of 26/4/1985 indicating that the council had approved the transfer of the property to the plaintiff. He signed a transfer form with Mugambi where the plaintiff was the transferee. Both parties signed the document in the presence of the town clerk on 20/3/1987. On the 17/6/88 the Commissioner of Lands wrote to the District Commissioner Nyeri, District Officer Nyeri and Karatina Town Council. The request in the letter was complied with by a letter dated 16th January 1989. He states that the plaintiff later complained to the Commissioner of Lands because the plot was up for grabs though the plaintiff had been paying rent. On the 23/2/1993 the town clerk Karatina Town Council wrote to the Commissioner of Lands confirming that the plot had been transferred to the plaintiff. He produced a letter to the Commissioner of Lands by the Ag Town Clerk Karatina Town Council referring to the second defendant as a second allottee of the same plot. The second defendant was asked by the Commissioner of Lands vide a letter dated 18/5/1993 to surrender the lease. The letter was copied to the Ag Town Clerk Karatina District Land Registration and PS Ministry of Lands.

On being cross-examined byChoge, Litigation Counsel, for Attorney General, he states that the town council requested the Ministry of Lands to transfer the land to the plaintiff. Consent of the commissioner was sought by the Town Clerk and there was no rejection. There are no improvements on the parcel of land by the plaintiff. On cross-examination by Makau for the second defendant, he states that the third defendant was registered on 4/2/1993.

PW2 Patrick Njuguna Wainaina was the town clerk Karatina Municipal Council. He states that the letter dated 30/8/1971 was accompanied with a part development plan that showed the lorry depot. He produced the letter and the plan as exhibits 1 and 2 respectively and as per the allotment letter dated 21/10/1971 the allotee was Joseph K. Mugambi. The plot changed hands in 1985 when Mugambi sold the same to Mbau Saw Mills through a transfer approved by the Council. He produced minutes which approved the transfer of lorry depot from J.K. Mugambi to Mbau Saw Mills.

The Council consented to that transfer and forwarded their recommendation to Commissioner of Lands by letter dated 28th April 1986. It was signed by the then town clerk. He did not know whether the Commissioner of Lands effected the transfer or declined to do so. He had a letter dated 17th June 1988 by Commissioner of Lands to many officers including his counsel which letter was received by the council which he produced as evidence. He also produced a copy of a document dated 26/1/1989 addressed to the District Officer Mathira by the District Commissioner. Nyeri identifying the plot. He saw a letter to the Commissioner of Lands by Mbau Saw Limited dated 18. 12. 1992 and a receipt dated 15/12/1992 being the payment made by Mbau Saw Mills to the council. He also produced two letters dated 23/2/1993 and 7th May 1993 addressed to the Commissioner of Lands by the council confirming that the land had been allocated to Mr Mugambi and Mr Kabua and therefore sought advise on the same. A responce to this letter from the Commissioner of Lands dated 18/5/1993, signed by one Mabea for the Commissioner of Lands was received by the council as it was written to Geoffrey Karunguru Kabua, a businessman at Karatina, and copied to them. He knew Kabua as a person who had served as Councilor of the Council at some period. The Commissioner of Lands had requested Mr Kabua to surrender the tittle.

According to their records around February, 1993, the plot was not available for allocation to Kabua by the Commissioner of Lands and that the council was not consulted when the plot was being allocated to Kabua. The procedure for allocation of Plots available commenced with the allotment by the District Commissioner followed by a recommendation to the Commissioner of Lands. This procedure was followed in relation to allocation of the plot to Mr. Mugambi but no in relation to Karungaru. In exhibit 14 the allotee was asked to identified an alternative plot for allocation but he did not attempt to do so.

On cross-examination by M/s Choge for the Attorney General, he states that Block 1/639 is the number of the suit plot however,at the time of allocation it was unsurveyed and did not have plot number. He states that the council gave its consent as required by law for allocation to the plaintiff but not second defendant.

On the 5/6/2013 the parties herein by consent substituted Wilson Ngatia Karungaru in the place of the 2nd defendant Geoffrey Karungaru Kabua who died before he could testify.

On the 24/9/2013 the matter proceeded for defence hearing when the 2nd defendant stated that he appeared in court as the legal representative of the estate of the deceased who was the owner of plot No.Block 639. His late father had a certificate of lease for the suit property. He produced the lease certificate. He had applied for plot No.425 which was not available hence he was invited to apply for a suitable site. A lease had been issued for plot No.425. He applied for a new plot and was given a letter of allotment for plot No.16A which is the same plot No.639. He produced a letter dated 5/6/1991 indicating that parcel No.425 Karatina Township was not available. However M/s Gathagu and Mr. Wahome objected to the production of this document which objection was upheld and the 3rd defendant ordered to file a list of documents on or before the 1/10/2013 and the matter was adjourned to 15/10/2013. However on this date, the case could not proceed for hearing. The matter proceeded on the 29/11/2013.

The 2nd defendant produced the letter dated 5/6/1991 and a letter of allotment dated 30/7/1992. He also produced a letter received from the Commissioner of Lands dated 2/9/1992 whose import was that payments had been made.

He produced the receipts for payment as D.exhibit 5 dated 18/8/1992 and confirmed that a beacons certificate had been issued. He fenced the property for development but was taken by the plaintiff to court who obtained an order of injunction stopping him from dealing with the property.

He produced a letter dated 17/6/1998 addressed to the town clerk Karatina from the Commissioner of Lands copied to Joseph M. Mugambi. In the letter the Commissioner of Lands confirmed that acceptance had been made. He followed due process and was issued with a certificate of lease.

On cross-examination by Mr. Wahome, Mr. Karungaru confirmed that he obtained exhibit 7 from the court file. He states that he did not surrender the lease because the Commissioner of Lands had issued the same and that he cannot accept another plot.

In his submissions the plaintiff states that it has proved its case against the defendant on a balance of probabilities and therefore the lease issued to the second defendant should be canceled in the interest of justice to avoid persons such as the second defendant from using misinformation to get registered in an otherwise committed or allocated plot.

The gravamen of the 2nd defendants case is that no letter of allotment was ever issued to the plaintiff as the letter of allotment produced by the plaintiff was issued to one Joseph Mugambi hence the agreement was between the Government and Mr. Joseph Mugambi.

Moreover, the property described in the allotment letter was in respect of an unsurveyed lorry depot. The 2nd defendant submitted further that the allotment letter had prerequisites that were never complied with and no acceptance had been made by Mr. Mugambi as he had failed refused and/or neglected to lawfully accept the letter of allotment by failing to pay the required sums for the plot or communicating a written acceptance to the Commissioner of Lands.

This court has considered the evidence adduced by the plaintiff and the 2nd defendant and submissions on record without the input of the 1st defendant who filed defence but did not call any evidence.The true facts of this dispute is that on the 30/8/1971, Erica Mann, the Ag town planning adviser wrote to clerk to the council, Nyeri County Council on the issue of a lorry depot. The letter reads;

“with reference to the above please find attached one part of drawing No.20/71/2 amended as agreed. I would suggest that the plot be probably fenced along its road frontage since lorry depots are not exactly beautiful.”

The letter was copied to the Commissioner of Lands Nairobi, Director of surveys, Nairobi, District Commissioner Nyeri and Township superintendent Karatina Urban Council as it then was.Mr. Erica Manns sentiments were noted and accepted by clerk on the 3/9/1971. On the 21/10/1971 a letter of allotment was issued by the office of the District Commissioner Nyeri in respect of plot number lorry depot (unsurveyed) at Karatina to J.K. Mugambi.

The letter of allotment was an offer of a lease of the unsurveyed lorry depot for a term of 99 years from 1/11/1971 at a stand premium of Kshs.11,200 and annual rent ofKshs.2. 240. Mr. J.K. Mugambi was requested to make an acceptance of the offer together with the sum of Kshs.12,528. 30 made of stand premium ofKsh11,200/=, proportionate rent from 1/11/1971 to 31/12/1971 including conveyancing fees, rates, stamp duty, registration fees,and survey fees totaling to Kshs.1,328. 30. The letter of allotment was conditional that if acceptance of offer and payment of the same due were not received within a month from the 21/10/1971 the offer would be considered to have lapsed.

The allotment had special condition that the grantee was to erect for occupation within 24 months of the commencement of the term, buildings of approved design on proper foundations constructed of a stone burnt-brick or concrete with roofing of titles or other permanent materials approved by the County Council and was to maintain the same (including the external paintwork) in good and substantial repair and condition to the satisfaction of the County Council. The erection of building was to be commenced after plans (including block plans showing the position of the buildings and a system of drainage for disposal of sewage surface and sullage water) drawings elevations and specifications thereof had been approved in writing by the county council and the Commissioner of Lands. Such plans, drawings elevations, and specifications were to be submitted in triplicate to the County Council. The land and buildings were only be used for lorry depot (unsurveyed) and the grantee was throughout the term and to the satisfaction of the County Council to make substantial use of the land and buildings for such purpose.

Moreover, the grantee was prohibited from alienating the land or any part thereof by sale, charge transfer of possession, sublease, bequest, or otherwise howsoever without the previous consent in writing on the County Council in accordance with. No application for such consent (except in respect of a loan required for building purposes) was to be considered until special condition No.1 had been performed.

On the 28/4/1986 the town clerk Karatina Town Council Mr. R.K. Mwangi wrote to the Commissioner of Lands Nairobi informing him that the allottee of the above mentioned plot (unsurveyed lorry depot Karatina) Mr. J.K. Mugambi had requested that the same be transferred Mbau Saw Mills Ltd.

The Clerk requested the Commissioner of Lands to effect a transfer as all dues owing to the council had been fully paid according to the Town Clerk. Extracts of council minutes were enclosed for ease of reference. Extracts of minutes No.8/85 shows that an application was made to transfer the lorry depot from Mr. J.K. Mugambi to Mbau Saw Mills in a meeting held on 29/3/1985 at 12. 15pm.

On 20/3/1985 a form of transfer of plots was signed by J.K. Mugambi the (transferor) and M/s Mbau Saw Mills (Transferee) in the presence of the Town Clerk Karatina.

On the 17th June 1988, the Commissioner of Lands through P. Amiani(Mrs) wrote to the D.C Nyeri, Town Clerk Karatina, District Land Oficer Nyeri copied the letter to J.M. Mugambi stating that the unsurveyed plot not numbered with no plans attached was allocated to J.M. Mugambi of P.O. Box 73 Karatina in 1971 vide the District Commissioner letter reference LG/10/VOL.VII dated 21/10/1971 for a lorry depot. However, the plot had not been paid for nor accepted and since she did have a plan showing the same she wanted to have confirmation that such a plot existed and he also noted a plan showing the same. There was no response to the letter which was not copied to the plaintiff.

On the 16th January 1989, the District Commissioner Nyeri wrote to the D.O Mathira, copied to the town clerk Karatina. in reference to an application for an industrial plot and attached a plan for the said industrial plot and requested for comments on the same.

On the 15th December 1992 the plaintiff paid rent arrears upto 1992, Commissioner of Lands dues, search and beacon changes for the lorry depot amounting to Kshs.16,935 and 3 days thereafter he wrote to the Commissioner of Lands a letter dated 18th December 1992 copied to the Town Clerk, Karatina Town Council, District Commissioner Nyeri, District Lands Officer Nyeri informing him that the suit plot was originally Mr. J.N. Mugambi as per the allotment letter dated 21/10/1971 for a lorry depot but later transferred to the plaintiff and the plaintiff had been paying ground rent and the last payment was Kshs.16,935. The plaintiff wanted the Commissioner of Lands to give a lease to enable the plaintiff secure the plot as he had heard rumours that the plot had been allocated to someone else. The plot was being used by the plaintiff for a timber and a logs depot contrary to the terms and condition of the allotment as it was to be used as a lorry depot. The letter was copied to the town clerk Karatina Town Council, District Commissioner Nyeri, District Lands Officer Nyeri.

The copy of this letter sent to the Town Clerk Karatina Town Council has some inscription made on 5/1/1993 by the Ag town clerk Karatina, that states;

“Mr. G.K. Kabue talked to me about having been allocated the plot but I think there was an error since the plot was allocated in 1971 as shown in folio 1 of this file and the P.D.P at folio 72b”

On the 23/2/1993 P.K. Macharia, Ag Town Clerk Karatina wrote to the Commissioner of Lands stating that the suit property was allocated to J.K. Mugambi who transferred the same to Mbau Saw Mills.

On the 7/5/1993, the Town Clerk Karatina Town Council wrote to the commissioner of lands further to the letter dated 23/2/1993 and stated that;

“I wish to inform you that we have received copies of a letter of allotment and certificate of lease both in the name of Geoffrey Karungaru Kabua. It is now clear that the plot which was allocated to one Joseph K. Mugambi vide the District Commissioner's latter Ref:LG.10. VII of 21st October, 1971 has also been allocated to Mr. G.K. Kabua. Both parties are willing to develop the plot and have submitted their plans for approval. The purpose of this letter is therefore to seek your guidance regarding the ownership of the plot. Your early response will be very much appreciated. Copies of the D.C's letter and town planning advisers letter of 30th August, 1971 are enclosed for your perusal.”

I have highlighted the whole of this letter because it is important in determination of this case.

On the 28th May 1993 Z A Mabea, Commissioner of Lands as he then was wrote to Mr. Geoffrey Karungaru Kabua a letter copied to Ag Town Clerk Karatina Town Council, District Lands Officer Nyeri, P.S Ministry of Lands and Settlements (Att. Mr. Yatich) with a footnote that “you may recall this case; the misinformation by Mr. G.K. Kabua and the pressure brought to bear on the officer handling the matter which occasioned the issuance of the lease prematurely before exhaustive consultations were finalised.”

At this point it is important to note that the Attorney General for Commissioner of Lands did not call any witness hence no evidence was adduced on his behalf. The aforesaid letter states that;-(and it is important to lift the whole of it);

“with reference to a letter reference KTC/B1 639/1/4 dated 7th May, 1993 from the Ag. Town Clerk, Karatina town council addressed to me, copy to you, I am instructed by the Government to inform you that the above plot was way back in 1971 allocated a Mr. Joseph Mugambi of Post Office Box 73, Karatina for a Lorry Depot. Although you have collected the lease for the plot, the allocation of the plot to you was erroneous or by mistake as the same was already committed or allocated to Mr. Mugambi. I am therefore instructed to inform you to arrange for voluntary surrender of the lease for the above plot for cancellation. It is further agreed that upon surrender of the lease, you may identify an alternative vacant plot for allocation to you in lieu of. Your co-operation in this regard would be highly appreciated.”

Strangely, this letter was not copied to the plaintiff and the transfer of the plot by Mr. Mugambi to M/s Mbau Saw Mills is not referred to by the Commissioner of Lands. The plaintiff was very apprehensive that he was going to lose his property and therefore came to this court.

The defendant case is also based on documentary evidence. On the 5th of June 1991, C.M. Githaiga for Commissioner of Lands wrote to Mr. G.K. Kabua (deceased) in respect of parcel of land No.425 at Karatina Township and referenced to the deceased's letter dated 19/9/1986 in respect of the said plot No.425 and informed him that the plot had been allocated to someone else who was holding a leasehold tittle for the same. He was asked to look for a suitable site and apply to the office for further action. It appears that the deceased looked for a plot and was issued with a letter of allotment for an alternative plot No.16A at Karatina Township (ref. No.117900) measuring 0. 4 hectares for a term of 99 years at a stand premium of kshs.40,000 and an annual rent of Kshs.8000.

The letter of allotment was subject to, and the grant was to be made under the provision of, G.L.A Cap 280 of the revised Edith of Laws of Kenya (repealed) and the title was to be issued under Registered Land Act cap 300 (repealed). The letter of allotment was issued with special condition that; “If acceptance and payment respectively are not received within 30 days from the date hereof the offer herein contained will be considered to have lapsed. If the above plot is still unsurveyed at the time you commence building you should exercise the greatest care to ensure that any building or other works are contained within the boundaries of the plot for should you inadvertently overstep the aforesaid boundaries the costs of removal and reconstruction must be borne by you.”

The deceased was to make acceptance and pay Kshs.36,695 which was paid on 18/8/92. On the 2/9/1992, the Commissioner of Lands wrote to the Director of Surveys and stated;

“I refer to my letter of allotment Ref. No.117900 dated 30. 7.92 addressed to Geoffrey Karungaru Kabua of P.O. Box 89, Karatina with a copy to you in the above connexion and would inform you that the offer contained therein as been formally accepted. Please undertake survey”

Survey was done and beacon certificate was issued by the Director of Surveys.

A lease was prepared and presented for registration at the Nyeri District Land Registry on 4/2/1993 in presentation book No.48. 2.1993. The lease was registered on 4/2/1993. In consideration of the sum of Kshs.40,000 by way of stand premium paid on or before the execution of the lease, the county council of Nyeri leased the suit property to Geoffrey Karungaru Kabua (deceased) the suit property measuring 0. 3964 hectares for a term of 99 years at an annual rent of Kshs.8,000, payable in advance on the first day of January in each year with special conditions.

The lease was signed by Wambui Gachage the Commissioner of Lands, thereto lawfully authorized on behalf of Nyeri County Council on the 28/1/93 in the presence of the land registrar Nyeri and Geoffrey Karungaru Kabue in the presence of the land registrar Nyeri and a certificate of lease issued on 4/2/1993.

I have considered the evidence on record and the submission of the parties and do find that a letter of allotment was issued to Mr. Joseph K. Mugambi on 21/10/1971 with a condition to accept the offer within 30 days. He did not do so and thereafter the offer lapsed 30 days after it was made in accordance with the allotment letter. Having failed to accept the offer as stipulated in the letter of allotment Mr. J.K. Mugambi did not acquire interest in the unsurveyed lorry depot and therefore had no interest to transfer to the plaintiff. This court holds that a letter of allotment does not confer any property rights to a person unless there is acceptance and payment of the stand premium and ground rent. In the letter dated 17/6/1988 which was written about 17 years after the allotment letter was issued, the Commissioner of Lands confirmed that the plot was allocated to Joseph M. Mugambi in 1971 for lorry depot. However, the plot had neither been paid for nor an acceptance of the offer in the allotment letter made. The implication of this letter was that the allottee had not complied with the terms of the allotment letter and therefore the offer had lapsed. The offer having lapsed, the allottee Mr. Joseph M. Mugambi did not have any interest to transfer to the plaintiff and therefore all transactions between the allottee and the plaintiff were a nullity in law.

Though the 1st defendant did not call any evidence, I do not agree with the submissions of Mr. Wahome that the whole mess was created by the 1st defendant who made a double allocation without any regard to the interest and rights to parties because when the second allotment letter was issued by the Commissioner of Lands on the 30/7/1992 the 1st allotment letter issued on 21/10/1971 had expired due to effluxion of time. The allegation that the second allotment letter was issued due to pressure and misinformation is not supported by any evidence as the makers of the documents where it is alleged that the allotment letter was issued due to pressure were not called. This court issued witness summons to the lands officers but no one came to testify on behalf of the Attorney General. There is no evidence of pressure, misinformation or fraud.

I do agree with Mr. Luci for the 2nd defendant that Mr. J.K. Mugambi having failed to meet the pre-requisites set out in the letter of allotment issued on 21/10/1971 within 30 days of the letter, the offer lapsed and therefore he could not lawfully purport to transfer any interest thereafter to any party including the plaintiff. Moreover that any purported transfer whether or not approved by a committee of the Karatina Town Council is void ab-initio as the conditions of the letter of allotment were not met hence Mr. J.K. Mugambi acquired no transferable interest in the property as the purported transfer was null and void.

On the other hand, the 2nd defendant was allotted the suit property, he complied with the conditions of the allotment letter, and accepted the offer. The Commissioner of Lands communicated to the Director of Survey who did survey and issued beacon certificate. The 2nd defendant and the 1st defendant executed a lease agreement and thereafter a certificate of lease was issued. This court has not been given any evidence of fraud by the 2nd defendant and therefore finds that the certificate of lease issued on 4/2/1993 was lawfully issued after registration of the lease on the same date.

Article 40 of the Constitution of Kenya presupposes that a person who claims property rights has acquired the property through a legal process. In this case, the letter of allotment having been issued to one J.K. Mugambi and not the plaintiff, the plaintiff could not claim under it. The allottee having failed to meet the conditions of the allotment letter, the process was bound to begin afresh by the plaintiff being issued another allotment letter in his name with the offer and conditions. This never happened. The plaintiff not being privy to the allotment letter, he could not claim under it.

I agree with Mr. Wahome that Dr. Joseph M.K. Ngok -vs- Moijo Ole Keiuwa and 4 others does not apply but for different reasons thus, there was not double allocation in this matter as the first allotment letter expired 30 days after Mr. J.K. Mugambi failed to meet the conditions of the allotment letter. Though the plaintiff paid the rent arrears on the 15/12/1992, he was not the allottee of the parcel of land and did not pay the stand premium for its worth as required by the letter of allotment. However am bound by the reasoning in the NGOK'S CASE thattitle to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of a title document in accordance with the law.

The upshot of the foregoing is that the 2nd defendant was lawfully alloted the suit property as the earlier allotment letter had lapsed. The certificate of lease issued conferred to him legal, lawful and good title. The suit herein is dismissed with costs.

Dated, signed and delivered on 16th day of May, 2014.

A. OMBWAYO

JUDGE