[2015] KEHC 6744 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

CIVIL APPEAL NO. 184 OF 2010

SALOME WARWARE........................................APPELLANT

VERSUS

GEORGE MUNA.......................................1ST RESPONDENT

CHARITY NJERI......................................2ND RESPONDENT

(BEING AN APPEAL FROM THE RULING OF THE LEARNED SENIOR PRINCIPAL MAGISTRATE MR. A.K KANIARA IN MURANG'A CIVIL CASE NO. 495 OF 2000 DELIVERED ON 21ST JULY 2010)

JUDGMENT

Salome Warware (hereinafter referred to as the Appellant) commenced this matter by way of Plaint in Murang'as Senior Principal Magistrates Court against George Muna and Charity Njeri (hereinafter referred to as the Respondents), claiming that he was at all material times the proprietor of the plot No. A144 situated at Sagana Township having been allocated to him by Kirinyaga County Council. The Respondents without the consent of and/or authority of the Appellant moved on to Plaintiff's plot and committed trespass and acts of waste on the said plot by constructing permanent and other structures thereon. The Appellant prayed for an order that the Respondents do quit and vacate the suit plot, a permanent injunction restraining the respondents their servants and/or agents from future trespass on the appellant's land and general damages for trespass.

The Respondents filed their defense in which they averred that the plaint was bad in law and did not disclose any reasonable cause of action against any of the respondents. They were not aware of any previous proceedings between the appellant and the first Respondent on the subject matter. They ultimately prayed that the suit be struck out.

When the matter came up on the 16. 9.2005 for hearing, the Appellant Salome Warware Kangatha stated that she owned a plot in Sagana Town having been allocated the same by Kerugoya County Council. She was shown the same by the identification of beacons markings by the officials of Kerugoya County Council. The plot was allocated to the appellant and one Sarah Karimi who later left the whole plot to the appellant. After the said allocation, she moved into the plot and fenced it. She produced the beacons certificate and the map of the plot. The appellant was stood down for a scene visit which took place about 6 years later.

The court arrived at the site at 11. 17 a.m. Found that the disputed Plot No. A 144 is at the junction of Sagara/Nairobi and Sagara Murang'a tarmac road. The plot measures 120ft by 90ft. The appellant took them around the boundaries of the plot and showed the beacon sites. The Respondent also did the same. The court observed that the parties were referring to one and the same plot, however for the Respondent, the said plot was No. 694 whereas for the Appellant it was 144. After this observations, the court set the matter for hearing on 10. 5.2010.

Mr. Ernest Mathenge, a draughtsman with the county council of Kirinyaga testified that he joined Kirinyaga County Council in 2001 and by then the documents of plot NO. 144A had not been availed from Kagiro/Sagana Town Council. He could locate the suit plot from the map. Its size was 120ft x 100ft x 30ft x 90ft and neighbors a water furrow from 90H and an existing story building from the 120H side. The side that measures 100ft is along Murang'a Sagana road whilst the side facing Karatina Makutano Highway measures 30ft. He produced a beacons certificate prepared by Karanja. showing that the plot as A 144 existed. He also produced a map of the area. He does not know plot No. 694.

Kangata Kimunju Njauthe husband of the Appellant testified that he was a donee of power of Attorney by the Appellant who is his wife. He states that the Plot in issue was given to them by Kirinyaga County Council and registered in the appellant's name. He produced the minutes of the county council when the plot was allocated. They were shown the plot by the surveyor and the beacons had been made.

He states that he had put up a fence on the plot but the 1st Defendant pulled it down and constructed on the plot. He went to court and obtained an injunction but the defendant continued with the construction. He produced a receipt showing that he had paying rates.

After the Appellant had closed his case in the lower court, the defence called the 1st Respondent who states that he is a businessman in Sagana operating a hotel in that town. He applied for plot NO. 694 SAGANA and payed for an extract of the minute produced as exhibit 1A and a receipt for the same which he produced as exhibit 1Band an invoice and paid Kshs 3800. He was issued with the authority to develop the plot and has been paying rates. He was shown the plot and the beacons and given a beacons certificate, and fenced the plot with timber. This dispute was before Kirinyaga County Council but resolved in the Respondents favour. He started construction in the year 2000 but has stopped by the court but the court later lifted the order. He completed the temporary structure which costs him about 1. 5 million shillings. He has been doing business on the plot to date.

DW2, Stephen Mburu, a surveyor at Sagana Town Council joined Sagana Town Council in the year 2000. He claimed to have records of what was transferred to Sagana Town Council. He claimed to have books and maps showing various owners of plots. He claimed that plot NO. 694 was in their records and is owned by the Respondents. He also claimed that plot NO. 144 was not in the register but did not produce the register.He did not know where plot no 144 was on the ground but he knew where Plot No. 694 was.

DW2 who is the 2nd Respondent is a wife to the the 1st Respondent and operates a restaurant. She requested the 1st Respondent to allow him become a co-owner of plot NO. 694. She went to Kirinyaga County Council and was made a Co-owner of the plot.

The learned magistrate, after hearing the evidence and submissions of parties, correctly found that this is a case where the same plot is allocated to both the Appellant and Respondents and the legal tussle was essentially of ownership.

He goes further to state that the court visited the site and found that the defendants have constructed on the plot and that Sagana Town Council recognizes the plot as No. 694 owned by the Defendant. I do find that the learned magistrate erred make a finding based on recognition of the Respondents by Sagana Town Council. He was obliged to consider the documents of ownership and allocation and not recognition by the Council.

The learned magistrate correctly found that the orders sought in the suit required certainty regarding the ownership of the plot the court saw on 31. 3.2010. However the court erred in finding that there is no evidence on record for this certainty as Ernest Mathenge, a draughtsman with the County Council Of Kirinyaga produced the beacon certificate for Plot NO. A 144 prepared by the then County surveyor. He also produced a map of the area which showed the exact position of the Plot. DW2 referred to maps, registers and documents which he did not produce. The 1st defendant had a duty to produce a map showing the location of Plot No. 694 to counter the map that was produced by PW1 showing the location of the plot.

Though Sagana Town council was a custodian of the documents of ownership, the respondent only produced documents to show that they were allocated plot NO. 694, but there was no document to produced to show the location of the plot other than recognition by the Sagana Town Council which has not enjoined as a party and yet both parties had the obligation to join the council.

The learned Magistrate appeared to have relied on the decision of Kirinyaga County Council in the dispute filed over the same plot. He found that the decision still stands as it has not been set aside or quashed anywhere.

This court finds that the dispute revolves on the same plot. However, the Appellant was the first to be allocated the said plot as plot No. A144 Sagana by Kirinyaga County Council in 1990 and allocation letter issued in 1991. The 1st Respondent was allocated the said plot on 20. 5.1992 with a new number and beacons certificate .

I agree with Anne Thungu that this is a case of double allocation, however the authority of NAIROBI HCCC NO. 696 OF 2003 DAVID KINYANJUI -VS- YUSUF IBRAHIM APPLIES. Applies where a person is registered an absolute owner of the property or as a lessee. Neither the Appellant nor the respondents produced documents of ownership. What was produced were the documents showing that they were both allocated the plot to commence the process of acquiring tittle..

The county council was the owner of the Land hence rightfully issued letters of allotment but either inordinately or mischievously issued the same to two different persons to be transmitted to The Commissioner Of Lands for issuance of title as was then the procedure. Title has not been issued to either the appellant or Respondents by the Commissioner of Lands.

This is a case where the Appellants sought an equitable remedy of injunction in the lower court. It is trite law based on equitable principles that where two equities are equal, the first in time prevails. This principle applies where the law is not clear. In this case, the parties have not been registered as the owners of the plot in dispute hence the principle applies. In applying this principle, I do find that the Appellant was the first to be allocated hence entitled to be registered as the proprietor of the plot.

This court also finds that the learned magistrate erred in finding that the Appellant had not proved that he owned the property and yet there was a beacon certificate, minutes of the Sagana County Council and a map of the area indicating that the plot was allocated to the Appellant in June 1990 and I agree with the appellant that the learned court failed to appreciate the evidence on record that both allocation ware done by Kirinyaga County Council and that the plot had been initially fenced by the Appellant.

Lastly, this court finds that the evidence of DW2 was not reliable because he did not produce the register and maps he referred to and therefor his evidence appeared not informed by the documents at the Sagana Town Council in respect of the plot.

The respondents stated that they have been in occupation since 1992 and have developed the plot. They agree that the plot referred to as 694 by respondents is also referred to as 144 by the Appellant. The issue before court was ownership hence the Kirinyaga County Council ought to have been joined.

While I agree with this submission, I do find that the main issue before the court was double allocation of a plot. I do agree that it was important to join Kirinyaga County Council but the obligation rested with both the Appellant and Respondents hence blame cannot be put on the Appellant. However failure to join the Kirinyaga Town Council was not fatal as there was sufficient evidence on record that this was a case of double allocation.

As I understand, the requirements of allocation on land at the time of filing and determination of this suit in the lower court. However once a plot has been allocated there has to be followed a procedure for either cancellation or forfeiture of the allocation before the same is allocated to a second person. This is usually premised upon either breach of the conditions of the allocation such as development or outright rejection of allotment and that for the allocation to be forfeited there must be notification to the allotee of the cancellation or forfeiture. The appellant was the first to be allocated the plot and still retains the documents of allocation.

The upshot of the above is that the appeal is allowed and the judgment of the Principal Magistrate's delivered on 21. 7.2010 in Civil Case NO. 495 of 2000is hereby set aside and judgment is hereby entered as per prayers a,b of the Plaint dated 5. 12. 2000 and filed on the same date in the senior Principal Magistrates Court at Murang'a.

DATED AND SIGNED AT ELDORET THIS …..........DAY OF.............. 2015

OMBWAYO ANTONY

JUDGE

DELIVERED AND SIGNED AT NYERI THIS 4TH DAY OF FEBRUARY ,2015

LUCY WAITHAKA

JUDGE