[2018] KEELC 282 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT NAIROBI

E.L.C. CASE NO. 546 OF 2008

ROUTE THREE CO. LTD..........................................1ST PLAINTIFF

GOSPEL CELEBRATION CENTRE.......................2ND PLAINTIFF

VERSUS

CITY COUNCIL OF NAIROBI.............................1ST DEFENDANT

REUBEN NJUGUNA..............................................2ND DEFENDANT

JUDGEMENT

1. In the Amended Plaint dated 28/2/2015, the Plaintiffs seek a declaration that the 1st Plaintiff is the legal owner of the plot known as CP 8/1 Kayole Commercial Zone Block 13 (“the Suit Property”) and a permanent order to restrain the 2nd Defendant from dealing with the Suit Property. The Plaintiffs claim that the 1st Defendant allocated the Suit Property to the 1st Plaintiff on 18/1/1994 who sold it to the 2nd Plaintiff on 24/2/1998. The 2nd Plaintiff claims that after paying the purchase price in full it occupied the property awaiting the transfer of the land by the 1st Plaintiff.

2. The Plaintiffs claim that the 1st Defendant forcefully entered the Suit Property and destroyed the fence and structures on it without any reasonable cause. The 1st Defendant informed the Plaintiffs that it allocated the Suit Property to the 2nd Defendant who intended to develop the land but was inhibited by the orders granted in HCCC No. 118 of 2000. This suit was dismissed for want of prosecution on 28/10/2008 following which the Plaintiffs filed the instant suit.

3. The 1st Defendant denied the Plaintiffs claim. The 2nd Defendant in its Amended Defence dated 15/6/2015 denied the Plaintiffs’ claim and averred that he purchased the Suit Property from Agnes Ruth Mutua who was the initial allottee and who had complied with the conditions of the 1st Defendant in respect of the allotment. The 2nd Defendant claims that he has been paying rent and rates to the 1st Defendant. He averred that the suit does not disclose any reasonable cause of action against him and should be dismissed.

4. The Plaintiff called two witnesses. Sammy Gitari Nyaga Nkubu, a trustee of the 2nd Plaintiff testified that the 2nd Plaintiff purchased the suit land from the 1st Plaintiff in 1998 at Kshs. 500,000/=. The 1st Plaintiff appointed the 2nd Plaintiff as its attorney through a Power of Attorney dated 22/12/2008. He stated that after paying the purchase price to the 1st Plaintiff, the 2nd Plaintiff went into actual occupation of the suit land. On or about 30/12/1999 the 1st Defendant directed the Plaintiff to remove the structures from the Suit Property claiming that it had allocated the suit land to the 2nd Defendant.

5. The witness produced a copy of the agreement for sale dated 24/2/1998. Clause 1 stated that the consideration was Kshs. 500,000/=. Clause 2 provided that the sum of Kshs. 23,000 was paid on execution of the agreement as part payment of the purchase price. Clause 3 stipulated that the balance of the purchase price would be paid to Jerusha Mukami on or before 30/1/1998 by banker’s cheque. Clause 4 stated that the 1st Plaintiff was to obtain and surrender to the 2nd Plaintiff the original letter of allotment, receipts of clearance certificates for rates and rents; and execute a special power of attorney in favour of the 2nd Plaintiff.

6. The witness produced a copy of the specific power of attorney dated 22/12/2008 which stated that the 1st Plaintiff’s directors appointed the 2nd Plaintiff as attorneys in connection with the Suit Property which wholly belonged to the 1st Plaintiff. He also produced a copy of the 1st Defendant’s letter dated 30/12/1999 requiring the 2nd Plaintiff to demolish the fence which it had erected on the Suit Property. The 1st Defendant’s letter of 19/1/2000 stated that the 2nd Plaintiff had illegally annexed the suit plot, landscaped it and converted it to a parking for its congregation. The letter which was addressed to the District Officer, Embakasi Division requested the provision of security for the demolition of the fence. The witness produced copies of the pleadings filed in HCCC No. 118 of 2000.

7. The Plaintiff’s second witness was a handwriting expert who was called to confirm that the signature appearing on the letter of allotment relied on by the Plaintiff was that of Zipporah, the former Town Clerk of Nairobi City Council.

8. The 1st Defendant did not call any witness. The 2nd Defendant testified. He bought the suit land from Agnes Ruth Mutio who had been allocated the land on 18/1/1994 by the 1st Defendant. He produced a copy of the letter of allotment and the beacon certificate dated 22/12/1995. He produced receipts evidencing payments made to the 1st Defendant and the 1st Defendant approval for the proposed development of a domestic building comprising shops and flats dated 16/12/1999. He also produced a copy of the 1st Defendant’s Hansard dated 15/12/1999 in which his building plans were approved. He urged the court to dismiss the suit since he is the lawful owner of the Suit Property.

9. The issue for determination is whether the court should grant the orders sought in the Amended Plaint. The 2nd Plaintiff did not show that the 1st Plaintiff complied with the terms of the allocation of the Suit Property by the 1st Defendant. It did not produce evidence of payment of rates and rent. The witness did not know who Jerusha was, this is the person who was to be paid the balance of the purchase price under the sale agreement. The witness stated that they paid Paul Muite, a director of the 1st Plaintiff the cheque for the consideration. The witness did not produce any evidence of payment of the balance of the purchase price other than the sum of Kshs. 23,000/= mentioned in the sale agreement. The witness confirmed that the 1st Plaintiff left the country. There was no evidence to show that the 2nd Plaintiff paid rates or land rent to the 1st Defendant.

10. The court prefers the evidence of the 2nd Defendant who was allocated the Suit Property by the 1st Defendant. The 2nd Defendant demonstrated that he has been paying rent and rates to the 1st Defendant and had even submitted his proposed plans for the development of the Suit Property in 1999. It is not clear why it took the 2nd Plaintiff ten years from the date of the agreement to obtain the power of attorney from the 1st Plaintiff or why the 1st Plaintiff did not transfer the plot to the 2nd Plaintiff.

11. The Plaintiffs have failed to prove their case on a balance of probabilities. It is dismissed with costs to the Defendants.

Dated and delivered at Nairobi this 26th day of November 2018.

K. BOR

JUDGE

In the presence of: -

Mr. Githinji for the Plaintiffs

No appearance for the Defendants

Mr. V. Owuor- Court Assistant