[2023] KEHC 26438 (KLR)

Ndungu v Ikumbu; PGS Enterprises Limited (Objector) (Civil Suit 193 of 2011) [2023] KEHC 26438 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26438 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Suit 193 of 2011

SM Mohochi, J

December 13, 2023

Between

Sammy Kuria Ndungu

Plaintiff

and

Samuel Mbugua Ikumbu

Respondent

and

PGS Enterprises Limited

Objector

Ruling

1. The Plaintiff decree holder has been awaiting to enjoy the fruits of his judgment for the last twelve (12) years since the year 2011. Before me is a Notice of Motion Application dated 9th November 2023 expressed to be brought under the provisions of Under order 22 rule 51, Rule 52 and order 51 rule 1 of the Civil Procedure Rules, seeking the following two (2) Ordersi.Spent.ii.Spent.iii.That the claimant/decree-holder, acting by themselves or through their agents be permanently restrained from selling all that parcel of land known as Nakuru Municipality Block 10/92 and its subdivision resultant Nakuru Municipality Block 10/405. iv.That Cost of this application be provided for.

2. The Application is supported by a sworn Affidavit of Geoffrey J. Njuguna dated 9th November 2023, and is based on the following Nine (9) grounds:i.The claimant through Cleverline Auctioneers has issued notices to sell all that parcel of land known as Nakuru Municipality Block 10/92 in execution of a judgment against the defendant.ii.The objector is the registered owner of all that parcel of land known as Nakuru Municipality Block 10/405. iii.The said Nakuru Municipality Block 10/405 is as a result of the parcel of land known as Nakuru Municipality Block 10/92 which the plaintiff intends to have sold by auction.iv.The said subdivision was done back in the year 2016 before the execution process herein began.v.Upon successful purchase of the parcel of land Nakuru Municipality Block 10/405 the objector herein was issued with a title deed for the said parcel of land being a resultant parcel from the subdivision of the parcel of land known AS Nakuru Municipality Block 10/92. The Objector remains the registered owner to date.vi.The plaintiff is well aware of this fact as he himself had entered into an agreement with the defendant for purchase of one of the excised portion which was then known as Plot 4B.vii.Should the entire parcel known as Nakuru Municipality Block 10/92 be sold as a whole, the objector will be deprived-off its parcel of land known as Nakuru Municipality Block 10/405 despite it not being part of the dispute between the plaintiff and the defendant.viii.That the above shall cause the objector irreparable harm and the objection herein shall be rendered a mere academic exercise.ix.The court should intervene to avoid further perpetration of this illegality.

3. On the 27th April 2023 the Application dated 21st July 2022 by the Decree Holder for an order of prohibition and sale of the suit property. The Judgment debtor was represented and requested a further thirty (30) days to and was granted (15) fifteen days put in his response. By the 4th July 2023, the judgment debtor was yet to comply and the court thus allowed the Application as unopposed.

Objector’s Case 4. The Objector’s case is premised on the following grounds: -a.The claimant through Cleverline Auctioneers has issued notices to sell all that parcel of land known as Nakuru Municipality Block 10/92 in execution of a judgment against the defendant.b.The objector is the registered owner of all that parcel of land known as Nakuru Municipality Block 10/405. c.The said Nakuru Municipality Block 10/405 is as a result of the parcel of land known as Nakuru Municipality Block 10/92 which the plaintiff intends to have sold by auction.d.The said subdivision was done back in the year 2016 before the execution process herein began.e.Upon successful purchase of the parcel of land Nakuru Municipality Block 10/405 the objector was issued with a title deed for the said parcel.of land being a resultant parcel from the subdivision of the parcel of land known AS Nakuru Municipality Block 10/92. The Objector remains the registered owner to date.f.The plaintiff is well aware of this fact as he himself had entered into an agreement with the defendant for purchase of one of the excised portion which was then known as Plot 4B.g.Should the entire parcel known as Nakuru Municipality Block 10/92 be sold as a whole, the objector will be deprived off its parcel of land known as Nakuru Municipality Block 10/405 despite it not being part of the dispute between the plaintiff and the defendant.h.That the above shall cause the objector irreparable harm and the objection herein shall be rendered a mere academic exercise.i.The court should intervene to avoid further perpetration of this illegality.

5. By an affidavit sworn by Geoffrey J. Njuguna on 9th November 2023 the objector contends that it has information that the plaintiff through Cleverline Auctioneers has issued notices to sell all that parcel of land known as Nakuru Municipality Block 10/92 in execution of a judgment against the defendant

6. That, the objector is the registered owner of all that parcel of land known as Nakuru Municipality Block 10/405 of which a copy of official search is provided in evidence.

7. That, the said Nakuru Municipality Block 10/405 is as a result of sub-division of all that parcel of land known as Nakuru Municipality Block 10/92 which the plaintiff intends to have sold by auction.

8. That, the said sub-division was done back in the year 2016, before the execution process began the objector has provided a letter of surrender of lease, letter of approval of subdivision, letter of amendment of RIM, copy of amended RIM and letter of release of lease documents in evidence.

9. The Objector upon successful purchase of the parcel of land Nakuru Municipality Block 10/405 was issued with a title deed for the said parcel of land being a resultant parcel from the sub-division of the parcel of land known as Nakuru Municipality Block 10/92 and a copy of the certificate of lease has been provided in evidence.

10. The Objector avers that, it remains the registered owner to-date and that the plaintiff/decree-holder is well aware of this fact as he himself had entered into an agreement with the defendant for purchase of one of the excised portion which was then known as Plot 4B.

11. That should the entire parcel known as Nakuru Municipality Block 10/92 be sold as a whole, the objector will be deprived off its parcel of land known as Nakuru Municipality Block 10/405 despite it not being part of the dispute between the plaintiff and the defendant.

12. That the intended auction shall cause the objector irreparable harm and the objection herein shall be rendered a mere academic exercise and that, this court should intervene to avoid perpetration of this illegality.

13. That the objector is advised by its advocate, which advice It believes to be true that, a sale cannot proceed on assets which do not form part of properties of judgment-debtor.

14. That the objector is advised by its advocate, which advice It believes to be true that, the said intended auction is therefore illegal, irregular, null and void and should therefore be stopped by the court.

15. The Objector thus prays that its Application dated 9th November 2023 be allowed to prevent further perpetration of an illegality.

Judgment-Debtor Case 16. The Judgment-debtor has curiously sworn an affidavit in support of the objection to execution filed on 29th November 2023 where he depones that;i.That, it is indeed true that the parcel of Land known as Nakuru Municipality Block 10/92 no longer exists as the same was subdivided way back in the year 2014 when he was issued with the requisite consents for subdivision of the abovementioned parcelii.That, parcel number Nakuru Municipality Block 10/92 was subdivided to result to Nakuru Municipality Block 10/404, Block 10/405 and Block 10/406 and the Registry Index Map was amended to reflect this position of which he provided the approval from director of survey for amendment of RIM, the request for amendment, the approved provisional amendment and final amended RIM representing this position.iii.That, to facilitate the issuance of the leases for the above parcels, he did release and surrender the title to Nakuru Municipality Block 10/92 as requested in the exhibited copies of the request and surrender letter.iv.That, it is true that I did sell parcel of land Nakuru Municipality Block 10/404 to Graće Nyambura Kungu and a title was subsequently issued to the said purchaser.v.That, he also sold the parcel of land Nakuru Municipality Block 10/405 to the objector and a title duly and he exhibits a copy of sale agreement.vi.That, upon the sale he embarked on obtaining the title whereby a lease was issued on the 4th of July 2016 and later on a title issued and transferred to the objector and a copy of the lease is exhibited.vii.That, all the parcels have been developed by the parties who are currently in occupation of the parcels and therefore allowing the sale of the parcel of land Nakuru Municipality Block 10/92 will mean depriving these rightful proprietors their right to own the properties despite them not being part of the dispute between him and the plaintiff.viii.That, the plaintiff has gazetted the parcel of land Nakuru Municipality Block 10/92 for auction on the 15th day of December, 2023 which will deprive the objector his parcel of land.ix.That, he therefore urges the court, to allow the objection as it is merited and disclose true facts which can be established by the court even visiting the ground.x.That, the issues relating to proceedings preceding the objection are neither here nor there as the objector was not involved in the proceedings.xi.That, the issue of closure of the green card relating to Block 10/92 is an issue that he is not in control, as it is done by the registrar, if the same was not done, then that remains to be the fault of the registrar, as far as he knows, and that Nakuru Municipality Block Block 10/92 does not exist as demonstrated in the objection as well as this reply.xii.That, the plaintiff being an owner of parcels of land near the parcels in dispute is well aware of these facts.

Plaintiff/Decree-Holder’s Case 17. Plaintiff/Decree-Holder contends that, the grounds in support of the application indicates that the objector is the registered owner of parcel Nakuru Municipality Block 10/405 and which parcel the objector claims to be arising from a sub-division of the parcel Nakuru Municipality Block 10/92 which objector argues that, it stands to suffer irreparable loss if the entire parcel Nakuru Municipality Block 10/92 is sold via Public Auction as scheduled.

18. On the part of the plaintiff/decree-holder he has opposed the objector's application through the Replying Affidavit made on 23rd November, 2023. The plaintiff/decree-holder contends that there is no correlation between the defendant's property Nakuru Municipality Block 10/92 and the objector's parcel Nakuru Municipality Block 10/405.

19. The plaintiff/decree-holder avers in his Replying Affidavit that, the objector's Application is only meant to delay and/or defeat the lawful execution of the court's decree.

20. The plaintiff/decree-holder avers that only one (1) issue is arising for determination by court in regard to the Objector's Application: -Whether the Objector's application has merit and if the same should be allowed?

21. That, Order 22 Rule 51 (1) of the Civil Procedure Rules, 2010 is the legislation that gives guidelines on the procedure to be followed by an objector who seeks to interject and halt the attachment or sale of a property pursuant.

22. Plaintiff/decree-holder avers that, it is evident that the objector company is owned by different individuals who are not the judgement debtor. The objector would be deemed to have fulfilled the first condition in proof, that it is the objector's property that has been levied in execution of the court's decree.

23. That, the objector has indicated that its property is Nakuru Municipality Block 10/405 which it claims resulted from a sub-division of parcel Nakuru Municipality Block 10/92. The plaintiff/decree holder has pointed out in his replying affidavit that there is no correlation between parcel Nakuru Municipality Block 10/92 and the objector's parcel Nakuru Municipality Block 10/405.

24. The plaintiff/decree holder has observed that a copy of the certificate of lease for parcel Nakuru Municipality Block 10/92 reveals that the lessor of the property is the Government of Kenya.

25. On the other hand, a copy of the objector's certificate of lease for parcel Nakuru Municipality Block 10/405 reveals that the lessor is the County Government of Nakuru.

26. The plaintiff/decree-holder avers that, the objector has not made any attempt to explain how the parcel Nakuru Municipality Block 10/92 was surrendered from the Government of Kenya to the County Government of Nakuru upon sub-division if at all.

27. The plaintiff/decree-holder avers that, the objector has not exhibited any Gazette Notice informing or confirming that, the ownership of property Nakuru Municipality Block 10/92 was taken over by the County Government of Nakuru from the National Government of Kenya after the alleged sub-division.

28. That it is incumbent upon the objector to demonstrate the nexus between the property Nakuru Municipality Block 10/92 and its own property Nakuru Municipality Block 10/405 and how the same ceased to be National Government property and was later owned by the County Government ofNakuru following sub-division if at all.

29. That the objector has annexed in its supporting affidavit a letter dated 14th June, 2016 Annexure P.G.S. 2(a)" which suggests that the defendant/judgment debtor surrendered the original lease for the parcel Nakuru Municipality Block 10/92 to the Lands Department, Nairobi in the Year 2016. However, the letter is of no relevance since it is trite law that a Surrender of a certificate of lease should be executed in the prescribed format as per the Land Registration Act No 3 of 2012 so that the surrender of lease ought to be duly acknowledged and registered at the relevant lands registry to confirm delivery and acceptance of the surrender of lease.

30. That, the letter for surrender of lease exhibited by the objector Annexure "P.G.S. 2(a) of the supporting affidavit does not portray that the letter for Surrender was duly acknowledged and/or registered at the Nairobi Lands Registry.

31. That, more importantly, in recent submissions dated 12th January, 2021 and filed in court on 18th January. 2021 where the defendant/ judgement debtor was urging the court to allow his application for enlargement of time to file an appeal and to grant stay of execution, the Defendant through his advocates submitted as follows on provision of security: -“Your Lordship, as much as this is money decree, what was in dispute as per the judgement annexed to the plaintiffs supporting affidavit was sale of a parcel of land to be hived from Nakuru Municipality Block 10/92 registered in the names of the defendant/applicant herein”.“That, the defendant avers at paragraph 10 of his Supporting affidavit that the said parcel is still available and he is willing to have a restriction registered on the aforesaid parcel and/or comply with any other condition of the court regarding the said parcel.

32. That, it is obvious that, the judgment debtor could not have proposed before court that an inhibition or restriction be placed on the parcel Nakuru Municipality Block 10/92 as deposed in his supporting affidavit of 11th November, 2020 if indeed he was well aware that the parcel Nakuru Municipality Block 10/92 had been sub-divided and/or sold in the Year 2016.

33. Furthermore, documents produced from the Lands Registry, Nakuru reveal that the parcel Nakuru Municipality Block 10/92 has never been closed for sub-division and therefore the same is available for attachment in execution of the court's decree.

34. The plaintiff/decree-holder submits for instance, that on 8th August, 2018 counsels on record for the plaintiff/decree-holder applied to be issued with a certified copy of the White Card for the parcel Nakuru Municipality Block 10/92 and which certified copy was issued on 14th August, 2018 by the Lands Registry Nakuru, while exhibiting that thesubject parcel existed and was still registered in the names of the defendant/judgement-debtor and free from any encumbrances at the time.

35. That, on 30th June, 2022 the Land Registrar, Nakuru issued to the plaintiff's advocates a certificate of official search for parcel Nakuru Municipality Block 10/92 which exhibited that the parcel was registered in the names of the defendant/judgement-debtor and free from any encumbrances.

36. That, after the court issued an order of prohibition on 4th July, 2023 to be registered against the parcel Nakuru Municipality Block 10/92, the same was presented at the lands registry and was duly registered whereby a certificate of official search was given by the Land Registrar, Nakuru dated 4th October, 2023 confirming that the only encumbrance on the subject parcel was the newly registered order of prohibition.

37. The plaintiff/decree-holder submits that, under Kenyan Land System, it is the land register which is expected to mirror all currently active registrable interests that affect a particular parcel of land. The Government, as the keeper of the master record of all land in Kenya and their owners, guarantees indefeasibility of all rights and interests shown in the land register against the entire world. In case of loss arising from an error in registration, the Government guarantees the person effected of compensation.

38. The plaintiff/decree-holder relies on the case of David Peterson Kiengo & 2 others v Kariuki Thuo [2012] eKLR. pg 3 held as follows:"... The Registered Lands Act is based on the Torrens' System. Under this system, indefeasibility of title is the basis for land registration. The State maintains a central register of land title holdings which is deemed to accurately reflect the current facts about title. The whole idea is to make it unnecessary for a party seeking to acquire interests in land to go beyond the register to establish ownership. The person whose name is recorded on the register holds guaranteed title to the property. Since the State guarantees the accuracy of the register, it makes it unnecessary for a person to investigate the history of past dealing with the land in question before acquiring an interest. That this is the essence of the Torrens System was stated as early back as 1891 in the case of Gibbs v Messer (189 1] AC 254”: (Emphasis Added).

39. The plaintiff/decree-holder submits that, in essence, the parcel Nakuru Municipality Block 10/92 has never been sub-divided and if at all, the same had been sub-divided as submitted by the objector, then the land register and parcel file ought to have indicated that the certificate of lease had been closed upon sub-division and therefore the parcel number Nakuru Municipality Block 10/92 would have ceased to exist.

40. The plaintiff/decree-holder submits that, it is still evident from the lands record at the Nakuru Registry that the parcel Nakuru Municipality Block 10/92 is registered in the names of the defendant /judgment debtor.

41. That, the objector has no registrable interests over that parcel of land. The objector has not proved that there exists a correlation between the defendant's parcel Nakuru Municipality Block 10/92 and its own parcel Nakuru Municipality Block 10/405. Basically, the objector's application is only meant to frustrate the efforts of the plaintiff/decree holder in seeking to realize the fruits of his judgment.

42. The plaintiff/decree-holder submits that, ultimately, there is prima facie evidence that the parcel Nakuru Municipality Block 10/92 is registered in the names of the defendant/judgment debtor. The attachment and sale through court orders is to be executed upon the already verified judgment debtor's property. In principle, the objector has failed to demonstrate ownership of the property which is being attached and now under the threat of sale.

43. The plaintiff/decree-holder submits that, with regards to the second test of Proof of legal or equitable interest in the whole or part of the property attached, the objector has not made any claim that it is in possession of part of the subject parcel or that its offices/ business premises occupy part of the parcel Nakuru Municipality Block 10/92.

44. That, the objector has not produced approved building plans, certificates of occupation, or business licenses to confirm that it occupies and/or it carries out business on the parcel or part of the parcel Nakuru Municipality Block 10/92. The objector has not demonstrated any legal or equitable interest on the property Nakuru Municipality Block 10/92.

45. Reliance is placed on the case of African Banking Corporation Limited v Zeituns Holdings Limited & 5 others; Aden (Objector) (Civil Suit 648 of 2005) [2022] KEHC 54 (KLR) while adopting the holding in Chotabhai M. Patel v Chaprabhi Patel (1958) EA 743 observed as follows at pages 2-3 of the Ruling thereof: -"i... Where an objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to attachment the court shall proceed to investigate the objection with the like power as regards examination of the Objector, and in all other respects as if he was party to the suit.ii.The Objector shall adduce evidence to show that at the date of attachment he had some interest in the property attached.iii.The question to be decided is, whether on the date of attachment, the Judgment-Debtor or the Objector was in possession, or where the court is satisfied that the property was in the possession of the Objector, it must be found whether he held it on his own account or in trust for the Judgment Debtor.iv.The sole question to be investigated is. thus, one of possession of and some interest in the property.v.Questions of legal right and title are not relevant except so far as they may affect the decision as to whether the possession is on account of or in trust for the Judgment Debtor or some other person. To that extent the title may be part of the inquiry. (Emphasis Added)”.

46. The plaintiff/decree-holder submits that, the issue of possession of the property in question is a critical factor which would be necessary to demonstrate that the objector has a legal or equitable right over the property under attachment.

47. That, it is also important to consider that, the objector has not presented any evidence to prove purchase of a sub-division of the parcel Nakuru Municipality Block 10/92 and in actual fact the sale agreement attached to the Supplementary Affidavit of 29th November, 2023 is an afterthought. Moreover, the objector has not exhibited the payment of consideration for purchase of a sub-division of the subject property.

48. That, the objector's application appears to be an elaborate scheme and collusion between the objector and the judgment debtor to try and defeat the cause of justice. Reliance is placed on the case of Samuel KamerevLands Registrar, Kajiado [2015] eKLR where the Court of Appeal held as follows; -“. On the question of whether the valuable consideration was paid, there is nothing in the evidence to show that the appellant paid valuable consideration, or indeed, any consideration at all for the suit property. appellant's testimony that he drew cash from his bank account, and paid the alleged seller of the suit property. But if he did, it was not produced, a bank statement evidencing the cash withdrawal or provide any relevant proof of payment. Furthermore, no sale agreement was produce showing that a purchase had taken place. There was no seller in evidence who testified. He did not produce any acknowledgments confirming receipt of the purchase price. Without such evidence, we are not satisfied that appellant actually paid any consideration, and if at all, to whom. " (Emphasis Added).”

49. Further reliance is placed on the case of Grace Wanjiru Mbugua v Philip Karumi Matu (2009) eKLR pg 4 where the High Court expressed itself thus; -“The Decree - Holder has created sufficient doubt in the mind of the court to the veracity of the Objector's contentions. Because of the glaring omissions on the part of the Objector, the court can only infer that such information if provided by the Objector, would have been prejudicial to her case”.

50. That, in the absence of proof of payment for consideration or payment of purchase price for a portion of the parcel Nakuru Municipality Block 10/92; the objector cannot convince the court that it has any tangible interest in the subject parcel.

51. That, there is no dispute that the attached property has not been sold. Therefore, the matter of payment of proceeds for sale of the subject property does not arise.

52. That, the objector has failed to demonstrate that he has an equitable or legal right over the whole or part of the subject parcel Nakuru Municipality Block 10/92. All factors militate against the granting of the objector's Application and therefore, the Notice of Motion dated 9th November, 2023 should be dismissed with costs to the plaintiff/ decree-holder.

Analysis and Determination 53. That Section 24(a) of the Land Registration Act provides that;“the registration of a person as the proprietor of lands on 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."

54. Having considered the present application, the affidavits in support and opposition of the said application, as well as the respective submissions of the parties, it is my view that the main issue for determination by this court is:a.Whether the Objector's Application has merit and if the same should be allowed?

55. The principles for sustaining an objection against execution, was elaborated in the case of Chotabhae M. Patel v Chapraphi Patel {1958} Ed 743 where the Court held as follows:“(1).Where an objection is made to the attachment of any property attached in execution of a decree on the ground that such property is not liable to attachment the Court shall proceed to investigate the objection with the live power as regards examination of the objector, and in all other respects as if, he was party to the suit.(2).The objector shall adduce evidence to show that at the date of attachment he had some interests in the property attached.(3).The question to be decided is, whether on the date of attachment, the Judgment debtor or the objector was in possession, or where the court is satisfied that the property was in the possession of the objector, it must be found whether, he held it on his own account or in trust for the Judgment debtor. The sole question to be investigated is, thus, one of possession of and some interest in the property.(4).Questions of Legal right and title are not relevant except so far as they may affect the decision as to whether the possession is on account of or in trust for the Judgment debtor or some other person. To that extent the file may be part of the inquiry.”

56. From the onset this court observes that, a leased land cannot be sold and that what is transferred is the lessee’s residual interest retaining the terms and condition thereon. The continued reference to absolute sale of and exhibited agreements thereof by the Defendant, and Objector is a confusing misrepresentation.

57. The Objector was not a party to this instant suit and has exhibited his certificate of lease on parcel Nakuru Municipality Block 10/405 which is a distinct parcel from parcel Nakuru Municipality Block 10/92 from which he claims was a sub-division.

58. The Objector has further exhibited a sale agreement detailing an intention to subdivide and sale a portion from parcel Nakuru Municipality Block 10/92 which transaction is confirmed by the Judgment-Debtor.

59. While this Court finds that the Objector has demonstrate he was not a party to the Primary suit he has not demonstrated that the property Nakuru Municipality Block 10/92 ceased to exists upon the alleged subdivision.

60. This Court finds that, the certified copy of the White Card dated 14th August 2018, the certificates of official search dated 30th June, 2022 and 4th October, 2023, the registered court order of prohibition made on the 4th July, 2023 are all confirmation of the existence of parcel Nakuru Municipality Block 10/92 which the Objector and Judgment-debtor claims no longer exists.

61. This court finds that sufficient prima facie evidence exists that, parcel Nakuru Municipality Block 10/92 and the lease in the name of the Judgment-Debtor exists and for this reason the prohibition issued on the4th July, 2023 was duly registered.

62. If the parcel Nakuru Municipality Block 10/92 did not exist by virtue of a prior subdivision then the prohibitory order would not have been accepted for the registrar. This Court finds that the objector was not in possession of Nakuru Municipality Block 10/92 at the date of execution.

63. This Court equally finds that whereas the Objector and the Judgment-Debtor claim that parcel Nakuru Municipality Block 10/92 did not exist and was subdivided, they contradict each other with the Judgment-debtor claiming that the subdivision was done in 2014 while the objector claims it was done in 2016. This assertion suffers fatal consequences for failure to demonstrate that there was proper surrender of the lease for the sub-division to occur.

64. Needless to say that, whereas the Objector herein obtained her certificate of lease on parcel Nakuru Municipality Block 10/405 allegedly as a result of subdivision. It is trite law that when there are two competing titles, the first in time will prevail. This position was emphasized in the case of Wreck Motors Enterprises v The Commissioner of Lands and others Civil Appeal Civil Appeal No 71 of 1997, where the court held that:‘Where there are two competing titles the one registered earlier is the one that takes priority ‘

65. The same position was held in the case of Gitwany Investment ltd v Tajmal Ltd & 3 others (2006) eKLR where the Court held that:-‘….the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issues two title in respect of the same parcel of land, then if both are apparently and on the face of them issued regularly and procedurally, without fraud save for the mistake then the first in time must prevail’

66. I find that the Judgment Debtor’s certificate of title was the first in time and as equity teaches in its maxim that; “when two equities are equal, the first in time prevails”, then the Judgment Debtor’s certificate of title deed was the first in time and should prevail the evidence called by the judgment-debtor having been cognate and not displaced by the objector.

67. This Court thus finds in accordance with Section 29(1) of the Land Registration Act that every proprietor, at the time of acquiring any land, lease or charge, shall be deemed to have had notice of every entry in the register relating to the land, lease or charge and subsisting at the time of acquisition and Section 30 Land Registration Act that, a certificate of title or certificate of lease shall be prima facie evidence of the matters shown in the certificate, and the land or lease shall be subject to all entries in the register.

68. For this reason, I am inclined to find that the Nakuru Municipality Block 10/405 owned by the objector is a distinct registration from the registered parcel Nakuru Municipality Block 10/92 currently in the name of the Judgment Debtor and that if the intended auction on said parcel was to continue it shall not affect the objector as he contends that Nakuru Municipality Block 10/92 no longer exists.

69. This Court is thus inclined to find that, the Objector’s Application dated 9th November is without merit and that the same is accordingly dismissed.

It is so ordered.

DELIVERED BY HON. JUSTICE HESTON MBOGO ON THIS 13TH DAY OF DECEMBER 2023. .....................MOHOCHI S.MJUDGE