[2022] KEELC 13322 (KLR)

Njau v Mbuki (Environment & Land Case 1608 of 2007) [2022] KEELC 13322 (KLR) (30 September 2022) (Judgment)

Neutral citation: [2022] KEELC 13322 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 1608 of 2007

LC Komingoi, J

September 30, 2022

(FORMERLY HCCC NO 1032 OF 2005)

Between

Joseph Ndungu Njau

Plaintiff

and

Margaret Magiri Mbuki

Defendant

Judgment

1. By a plaint dated August 18, 2005, the plaintiff prays for judgement against the defendant for:-a.A declaration that having been allotted Nairobi/Block 63/399 by the city council of Nairobi the plaintiff is entitled to ownership and possession of the said plot No 326 Jamhuri Phase II and to be registered as such.b.A declaration that having been disowned by the city council of Nairobi the defendant is not entitled to ownership and possession of plot No 326 Jamhuri Phase 11 known as Nairobi Block 63/399 and that the certificate of lease purportedly given on the December 24, 2002 was forged or obtained by fraud.c.A permanent or a mandatory or a perpetual injunction be issued restraining the defendant by herself, her proxies, servants or agents or otherwise howsoever from encroaching into or from interfering with the plaintiff’s occupation, ownership and possession of plot No326 parcel of land situated at Jamhuri Phase 11 estate, Nairobi, being title number Nairobi Block 63/99 and general damages for trespass.d.Costs of this suit and interests thereon.e.Any other or further relief the honourable court may deem fit to grant.

2. It is the plaintiff’s case averred that he is the owner entitled to exclusive possession of plot No 326 situate at Jamhuri Phase II Nairobi.The further averred that it was allotted to him by the city council of Nairobi vide the letter of allotment dated February 20, 1992, beacon certificate dated February 20, 1992 and pursuant to a lease agreement executed between the plaintiff and city council of Nairobi. He further averred that he took possession of the suit land and that the value of the suit plot and structures erected thereon is ksh 5 million. He contended that he has been paying land rent and rates to the Nairobi city council thus he is entitled to be registered as the owner.

3. It is the plaintiff’s case that the defendant fraudulently and illegally forged a lease and a title deed purporting to be the registered owner of the suit land. He added that the defendant does not have a letter of allotment and a lease from the city council of Nairobi. He particularized fraud allegations against the defendant and contended that the defendant has filed civil suit No 4405 of 2005 at the Chief Magistrate’s against one Mohammed P.K Nyutu and James Mugambi Wherein he alleges that he is the owner of the suit land to the detriment of the plaintiff.

The Defendant’s Case 4. The defendant filed the defence and counterclaim dated November 28, 2006 and amended on April 15, 2016. She denied the averments in the plaint and contended that she purchased the suit land on or about December 6, 2002 from Rosemary Wangari Mwangi and on December 24, 2002, she was issued with a certificate of lease. She admitted that she has never been issued with a letter of allotment by the Nairobi city council and that she did not require to enter into a lease agreement with the city council of Nairobi as she acquired the suit plot through purchase.

5. In her counterclaim, she sought judgment to be entered against the plaintiff for;a.A declaration that the defendant is the bona fide registered proprietor of all that land known as LR No Nairobi/Block 63/399. b.A permanent injunction to issue against the plaintiff restraining him, his servants, agents and/or employees from entering into, trespassing or from carrying out any construction, building or erecting any structure, selling or disposing or carrying out any operations and /or business activities whatsoever or otherwise on the defendant’s parcel of land known as Nairobi Block 63/399 .c.An order to the plaintiff to vacate and demolish any construction, building or structure erected on the property owned by the defendant being Nairobi/Block 63/399. d.General damages for trespass.e.Costs of this suit and interest.f.Such other and further relief that the honourable court shall deem fit and just to grant.

Evidence of the Plaintiff 6. PW1, Joseph Ndwiga Njau, the plaintiff testified on December 16, 2019. He told the court that he was the first allotee of the suit plot in 1992 and he was shown the plot and issued with a beacon certificate. It was his testimony that he paid ground rent on January 19, 2005 and subsequently entered into a lease agreement with the city council on September 15, 2001, paid stamp duty on December 8, 2005 and the lease was registered on December 19, 2005.

7. He further stated that while carrying out construction on the suit land, a certain young woman accompanied by the officer commanding station Kilimani police station claimed ownership of the suit land and demanded that he halts his construction. He testified that they both decided to go to the city council of Nairobi to verify their documents and vide the letter dated April 26, 2005, the city council of Nairobi confirmed that the suit land is his. He stated that he does not know one Rosemary Wangari Mwangi whom the defendant claims she purchased from and that the said Rosemary has never accused him of taking her plot.

8. When he was cross examined, he stated that he was given the letter of allotment in February 20, 1992, and was issued with the beacon certificate dated August 22, 2001. He further stated that he signed a lease with Nairobi city council on September 15, 2001 and applied for registration on December 19, 2005 and started construction in 2005.

9. When referred to the judgement In High Court petition No 386 of 2013, he stated that it quashed the ruling of B.K Letich, land registrar who had revoked his lease without a hearing at the public complaints committee of the ministry of lands and settlement. He also stated that he got summons pertaining to the public complaints committee hearing from the land registrar which he forwarded to his advocates.

10. When he was re-examined, he stated that he paid rates from 1992 to 2005 but he has not paid from 2005 due to the pendency of this suit.

Evidence of the Defendant 11. DW1, Margaret Magiri Mbuki, the defendant testified on December 16, 2019 and on April 22, 2021. She told the court that she was working out of the country but came back in 2012 and on December 20, 2012, she purchased the suit plot from Rosemary Wangari Mwangi. She added that she had engaged lawyers to conduct due diligence before the purchase and that Mr Wambua was her advocate in the transaction. She testified that her advocate confirmed from the city council that the rates had been cleared and the seller had a clearance certificate. It was her testimony that after the sale and after paying all dues, a transfer was effected in her name and it was consented to by the town clerk, Nairobi city council. It was also her testimony that she presented the transfer for registration and was issued with a certificate of lease dated December 24, 2002. She added that she left the country shortly thereafter and placed the suit land under the care of her children and a friend.

12. It was her testimony that she immediately took possession of the suit plot, fenced it with a barbed wire and planted a tree. She also told the court that later, a neighbor saw somebody bringing construction materials to the suit property at night and it turned out to be the plaintiff prompting them to report the matter at Kilimani police station.

13. She stated that they filed a suit in court to stop the construction but it did not succeed and when she went to check the file relating to the suit property at the registry, she found out that the said file was missing. She prayed that the suit property reverts to her name and that she be granted compensation as the plaintiff is profiting from the suit property.

14. She stated that the certificate of official search shows that she is the registered owner and she is the one who has been paying rates and ground rent for the plot. It was her testimony that in 2011,she made a complaint to the public complaints committee of the ministry of lands and settlement about a trespasser on her land. The complaint was heard and determined on June 28, 2011. He further stated that the said complaints committee summoned her and the plaintiff herein but he failed to appear and the committee determined that she was the owner of the suit land. The complaints committee wrote to the city council of Nairobi which confirmed that she is the owner.

15. When she was cross-examined and referred to the letter dated April 26, 2005 addressed by city council of Nairobi and signed by the deputy town clerk, she stated that she understood its content which state that the plaintiff is the original allotee and that the council does not recognize Rosemary Wangari’s title and it is investigating the same. She added that she does not agree with the contents of the letter. She added that she has a letter of allotment. She also stated that she is not aware of the outcome in petition No 386 of 2013

16. DW2, Gildine Gatwiri Karani, a principal land registration officer attached to the chief land registrar testified on December 16, 2019 and on November 3, 2021. She told the court that their records show the registered owner of the suit property is the defendant. It was her testimony that the defendant acquired the suit property through a transfer from Rosemary Wangari Mwangi and on December 24, 2002 and a certificate of lease was issued. She produced a certificate of official search dated October 21, 2021 showing the defendant as the registered proprietor.

17. When she was cross-examined, she stated that she is not aware that Mr Leitich, a land registrar attempted to settle the matter at some point. She added that the decision by the said Mr Leitich cancelling the certificate of lease issued to the plaintiff was not in their records. She testified that the defendant was registered as the owner on December 24, 2002 and a certificate of was lease issued to her. She further stated that the defendant bought from Rosemary Wangari Mwangi and a transfer was effected on December 24, 2012. She added that she is not aware of the certificate of lease issued to the plaintiff or when it was issued.

18. DW2 also stated that the register shows a chronology of the transactions but the copy of the transfer between the defendant and Rosemary Wangari Mwangi, who was the lessee from Nairobi city council was not in the file. When referred to the letter dated April 26, 2005 from the city council of Nairobi addressed to the land registrar stating that the plaintiff was the original allotee, she stated that she could not confirm if the same was from the city council of Nairobi and that it was not in their records.

19. When referred to the petitionNo 386 of 2013, she stated that she does not know if the land registrar was a party in the petition and that the order issued by Justice D Majanja in that matter is not in the file.

20. At the close of the oral testimonies, parties tendered written final submissions.

The Plaintiff’s Submissions 21. They are dated December 6, 2012. Counsel for the plaintiff submitted that the letter dated April 26, 2005 from the city council of Nairobi sanitizes all the procedures which the plaintiff followed before he lawfully acquired leasehold interest over the suit land and invalidates the defendant’s sale agreement and transfer of lease. It was his submission that the said letter prevents the defendant herein and the ministry of lands under section 120 of the Evidence Act from asserting that the defendant owns the suit land. He relied in the case of Paulina Chemutai Chirchir v Kipyegon Arap Sang & 3 others [2015] e KLR.

22. He urged the court to find that the defendant had acquired the certificate of lease dated December 24, 2002 unprocedurally, illegally and or through a corrupt scheme meriting dismissal of her claim. Relying on the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR and the case ofEijah Makeri Nyang’wara v Stephen Mungai Njuguna & another Eldoret ELC case No 609 of 2012, he submitted that under section 26 of the Land Registration Act, a title acquired unprocedurally or through a corrupt scheme may be cancelled.

The Defendant’s Submissions 23. They are dated June 6, 2022. Counsel for the defendant submitted that the following issues arose for determination;i.Whether the defendant is the bonafide registered proprietor of all that property known as LR No Nairobi Block 63/399 Jamhuri estate Nairobi.ii.Whether the certificate of title held by the defendant is superior to the letter of allotment held by the plaintiff.iii.Whether the defendant took possession of the suit property after purchase.iv.Whether the plaintiff has trespassed and made developments on the suit property.v.Whether the structures constructed by the plaintiff are illegal.vi.If the answer to No (iv) and (v) is in the affirmative, whether the plaintiff has any justification/authority to remain in the suit property.vii.Whether the defendant is entitled to the prayers sought.viii.Who should bear costs of this suit?

24. It was Counsel’s submission that section 24 of the Land Registration Act,No 3 of 2012 protects title unless impeached on the grounds under section 26 of the Act. Relying on the cases of Charles Karithe Kiarie & others v Administrators of John Wallace Mathare (deceased) & 5 others and the case of Eunice Grace Njambi Kamau & David Peterson Kiengo & 2 others v Kariuki Thuo[2012]eKLR, counsel submitted that the defendant’s title is indefeasible and can only be defeated by proof of fraud or misrepresentation to which the defendant is a party. He added that though the plaintiff alleged that the defendant’s title was obtained fraudulently, he failed to table evidence to the required standard as set in the case of Gachinga Kibutha v Caroline Nduku [2018] e KLR.

25. It was also counsel’s submission that where there is double allocation of land, the first allotment should prevail. He relied on the case of Kamau James Njendu v Serah Wanjiru & another [2017] e KLR and the case of Republic v City Council of Nairobi & 3 others[2014]e KLR.

26. It was also counsel’s submission that the effect of the letter from the city council of Nairobi dated April 26, 2005 is misrepresented by the plaintiff as city council stated that it was investigating the defendant’s title yet it has not been able to table its findings seventeen (17) years later. Counsel further submitted that in the ruling on the suit land dated September 7, 2012 delivered by B.K Leitich who was a district land registrar at the time, the plaintiff’s certificate of title was quashed and the records were rectified to reflect the defendant as owner. He added that the said ruling was quashed by Majanja J in HC petition No 386 of 2013 only because of a pending appeal had nothing to do with the validity of the defendant’s title.

27. Relying on the case of Lilian Waithera Gachuhi v David Shikuku Mzee[2005]e KLR and the case of Njuwangu Holdings Ltd v Lang’ata KPA Nairobi & 5 others ELC No139 of 2013,counsel submitted that a certificate of title held by the defendant is superior to a letter of allotment. Counsel also submitted that the defendant took possession of the land on December 24, 2002 thus the plaintiff has trespassed by constructing illegal structures. He added that the defendant is entitled to general damages for trespass. He relied on the case of Philip Ayaya Aluchio v Crispinus Ngayo [2014] e KLR.

28. I have considered the pleadings and the evidence on record. I have considered the written submissions filed on behalf of the parties and the authorities cited. The issues for determinations are:-i.Has the plaintiff established ownership over the suit land?ii.Was the defendant’s registration as owner of the suit land fraudulent?iii.Who between the plaintiff and the defendant is entitled to the suit land and who between them is a trespasser?iv.Is the defendant entitled to the reliefs sought in the counterclaim?v.Who should bear costs of this suit?

29. It is the plaintiff’s case that he is the owner of the suit property. He told the court that he was allotted the plot by the Nairobi city council in 1992. He produced a letter of allotment dated February 20, 1992. The said letter of allotment is in respect of plot No 326 in Jamhuri Phase II. The plaintiff was to pay Kshs 10,800/- within thirty (30) days or the offer would lapse. He was also supposed to accept the offer within the said thirty (30) days. He also produced beacon certificate dated August 22, 2001 as an exhibit in this case. There is a receipt dated March 4, 1992 showing that the plaintiff paid Kshs 210,800/- in compliance with the conditions in the letter of allotment. He also produced a receipt dated January 19, 2005 showing that he paid Kshs 3,600/= being ground rent for the year 2004-2005.

30. There is also a lease between the plaintiff and city council of Nairobi which is undated. The same is witnessed by M N Ngethe advocate. There are documents showing that he attempted to register the lease in the year 2005 at the ministry of lands.

31. The plaintiff also relied on a letter dated April 26, 2015 by the deputy town clerk (legal), city council of Nairobi M. N Ngethe to the chief land registrar.The letter reads:-“City HallO. Box 30075NairobiKenyaApril 26, 2005The chief land registrar,Ardhi House,NairobiDear Sir,RE: Nairobi/Block 63/399The above matter refers.This is to confirm that the original allottee of the above mentioned property is one Joseph Ndungu Njau as per the council’s records.The council does not recognize the title issued to Margaret Magiri Mbuki and is investigating the same.Your faithfully,M. N. Ng’etheDeputy Town Clerk – LegalCc Joseph Ndungu NjauO. Box 61466Nairobi”

32. In this letter the city council of Nairobi appears to be disowning the title issued to Margaret Magiri Mbuki (the defendant) and that it was investigating the same. It is not clear what became of the investigations or what were the findings.

33. The letter of allotment dated February 20, 1992 was conditional upon payment of stand premium and other charges within thirty (30) days. He has produced receipts to show that he paid on March 4, 1992. This is not in dispute. The next receipt produced was payment of ground rent in the year 2005.

34. The plaintiff has not explained what had transpired between 1992 and 2005 and whether he had been paying rates at all. Condition No 3 of the letter of allotment required that rates be paid as may be imposed.

35. The plaintiff also relies on the judgment of Majanja J in petition No 386 of 2013 where the learned judge ordered:-“(a)The decision of the chief land registrar dated September 11, 2012 cancelling the certificate of lease in favour of Joseph Ndungu Njau in respect of LRNo Nbi/Block/63/399 be and is hereby quashed”.(b)There shall be no order as to costs”.In my view this does not really assist the plaintiff’s case as much since the judge considered that ownership of the suit property was yet to be dealt with.

36. The letter dated April 26, 2005 by M N Ngethe deputy town clerk (legal), does not conclusively deal with the issue of ownership as the findings of the investigations into the title held by the defendant are unknown. It is not clear whether any investigations were done at all.

37. DW2 Gildine Gatwiri Karani, the principal land registrar told the court that the owner of the suit property is the defendant. I find that the plaintiff has failed to prove that he should be declared the owner of the suit property. In the case ofDrJoseph M. K Arap Ng’ok v Justice Moijo Ole Keiuwa & 5others[1997] e KLR, the court stated as follows:-“Title 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”.As things stand the plaintiff herein is not the registered owner of the suit property.

38. The defendant, told the court that she bought the suit property from Rosemary Wangari Mwangivide the sale agreement dated December 20, 2002. She stated that before this she engaged two lawyers who did due diligence and confirmed that the plot belonged to Rosemary Wangari Mwangi. The said Rosemary Wangari Mwangi had a rates clearance certificate from the city council of Nairobi.

39. Upon completion of the sale, the suit property was transferred to the defendant on the December 20, 2002 and on December 24, 2002. She was issued with a certificate of lease. Before the transfer was effected the town clerk of the city council of Nairobi gave the consent. I have seen the certificate of lease in the name of Rosemary Wangari Mwangi. The same was issued on September 28, 2001. This was way before the plaintiff attempted to register his lease. This means that by the time the plaintiff was entering into a lease with the city council of Nairobi, the said Rosemary Wangari Mwangi was already registered as the owner of the suit property.

40. There is rates clearance certificate issued to the said Rosemary Wangari Mwangi dated December 18, 2002. Was it possible for this certificate to be issued if she was not the owner of the suit property. This shows that the records at the city council of Nairobi showed that Rosemary Wangari Mwangi was the owner of the suit property. This was not disputed by the plaintiff.

Could This Have Been A Case Of Double Allocation? 41. It is the plaintiff’s submissions that the defendant relies on a letter which was held by a person who is not a party to the suit. Nothing could have prevented the plaintiff from seeking to enjoin Rosemary Wangari Mwangi to these proceedings. He chose not to. The defendant herein is a bonafide purchaser for value and should be left to enjoy her property. The certificate of official search dated April 19, 2005 confirms that the defendant is the registered owner of the suit property.

42. In paragraph 8 of the plaint, the particulars of fraud by the defendant are given as follows:a.The defendant has never been issued with allotment letter and if one was issued subsequent to the plaintiff’s then the same was obtained by fraud and is not recognized by the city council of Nairobi.b.The defendant has never been issued with a beacon certificate from the city council of Nairobi and if one was issued which the plaintiff hereby denies then the same was obtained by fraud and is not recognized by the city council of Nairobi.c.The purported certificate of lease purportedly given to the defendant on the December 24, 2002 is not available at the lands office and the same amounts to forgery. Further the defendant’s name is not indicated in the lands office as the owner.d.The defendant did not enter into lease agreement with the city council of Nairobi.e.The city council of Nairobi vide a letter dated April 26, 2005 has written to the chief land registrar disowning the certificate of lease purportedly issued to the defendant on the December 24, 2002 in respect of the suit land.The defendant’s case is that she bought the suit property from Rosemary Wangari Mwangi who was the registered owner of the suit property and a transfer was effected in her favour.

43. In my view none of the particulars of fraud set out in the above paragraph has been proved against the defendant. In the case ofVijay Morjoria v Nansingh Madhusingh Darbar & another [2000] e KLR Tunoi JA (as he then was) stated that:-“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleadings. The acts alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved and it is not allowable to leave fraud to be inferred from the facts.”I find that the plaintiff herein failed to demonstrate that the defendant fraudulently acquired title to the suit property or that the registration as the owner was fraudulent.

44. From the foregoing, I find that the defendant is entitled to the suit property as she is the registered owner. Section 26(1) of the Land Registration Act 2012, provides that:-“(1)The certificate of title issued by the registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—a.on the ground of fraud or misrepresentation to which the person is proved to be a party; orb.where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

45. DW1 Gildine Gatwiri Karani, the principal land registration officer confirmed that the records at the chief land registrar’s office showed that the defendant was the original owner. She produced the land register, green card and the certificate of official search as exhibits D3, D4 and D5 in this case.

46. In the defendant’s bundle, there are receipts for payment of rates in respect of the suit property. The payments were made by the defendant for the year 2012 to 2016. This confirms her assertion that she has been paying rates. This means the records at the city council of Nairobi (now Nairobi city county) shows that she is the owner of the suit property. The plaintiff told the court that he stopped paying rates in the year 2005. I find that the defendant is entitled to the suit property.

47. It is the defendant’s case that the plaintiff unlawfully entered the suit property in the year 2004 and began construction. The construction is now complete. The plaintiff admits that he has put up a building on the suit property worth Kshs 5,000,000/- as at the time of filing this case. I find that the plaintiff is a trespasser on the suit property.

48. It is the defendant’s case that upon purchasing the plot she took possession and fenced it with barbed wire. She also planted a tree. It is her case that the plaintiff has been getting rent from the said property since 2005. The suit property is in a prime area within the city of Nairobi. It must be worth much more than Kshs 5,000,000/- quoted by the plaintiff. The defendant has been kept off her property for all these years. She is entitled to general damages. I am guided by the case of Philp Ayaya Aluchio v Chrispinus Ngayo [2014] e KLR.

49. In the case of Park Towers Ltd v Moses Chege & others [2014] Mutung J held thus:-“I agree with the learned judges that where trespass is proved, a party need not prove that he has suffered any specific damage or loss to be awarded damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique facts and circumstances of each case. As observed in the cases referred to, there is no mathematical or scientific formula in such cases for assessment of general damages. However, in the case before me, I consider that the suit properties are sizeable parcels sitting on nearly three quarters of an acre of land located in the central business district. This is prime property in the city centre and any unlawful act of aggression and/or intrusion that prevents the rightful owner of the property from enjoying of his ownership rights of possession and use is to be frowned at and is punishable by way of an award of damages”

50. I assess the general damages in the instant suit at Kshs 5,000,000/- which I think is reasonable.

51. In conclusion, I find that the plaintiff has failed to prove his case against the defendant on a balance of probabilities. I dismiss the plaintiff’s suit.

52. In essence the defendant’s counterclaim succeeds. I am satisfied that the defendant has proved her counterclaim on a balance of probabilities and I enter judgment in her favour in the counterclaim in the following terms:-a.That a declaration is hereby issued that the defendant is the bona fide registered proprietor of all that land known as Nairobi/Block 63/399. b.That a permanent injunction is hereby issued against the plaintiff, his servants, agents and/or employees from entering into, trespassing or from carrying out any construction, building or erecting any structure, selling or disposing or carrying out any operations and /or business activities whatsoever or otherwise on the defendant’s parcel of land known as Nairobi Block 63/399 .c.An order is hereby issued directing the plaintiff to vacate and demolish any construction, building or structure erected on the property owned by the defendant being Nairobi/Block 63/399 within one hundred and twenty (120) days. Failure to which the defendant shall be at liberty to demolish the same through lawful means at the plaintiff’s expense.d.General damage for trespass Kshs 5000,000/-.e.Costs of the suit and interest.

It is so ordered.

DATED, SIGNED AND DELIVERED IN NAIROBI ON THIS 30THDAY OF SEPTEMBER 2022. ……………………….L. KOMINGOIJUDGEIn the presence of:-Mr. P. Ngoge advocate for the PlaintiffMrs. Kamau advocate for the DefendantSteve - Court Assistant