[2022] KEELC 14663 (KLR)

Sangrajka & another v Kiatu & Allied Products Limited & another (Environment & Land Case 138 of 2018) [2022] KEELC 14663 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEELC 14663 (KLR)

Republic of Kenya

In the Environment and Land Court at Machakos

Environment & Land Case 138 of 2018

CA Ochieng, J

November 10, 2022

(Formerly ELC No 444 of 2014 - Nairobi)

Between

Rajnikant Harjivandas Sangrajka

1st Plaintiff

Nanvendu Ramnikal Sanghrajka

2nd Plaintiff

and

Kiatu & Allied Products Limited

1st Defendant

Registrar of Titles

2nd Defendant

Judgment

1. By a Plaint dated the April 9, 2014, the Plaintiffs prays for Judgment against the Defendants for;a.A Permanent Injunction do issue restraining the Defendants, their Agents and/or Servants from interfering, trespassing upon, entering or interfering with the Suit Premises.b.A declaration that the revocation of the transfer to the 1st and 2nd Plaintiffs by way of a letter by one Mr BL Limo, a mere employee at the Ministry of Lands is illegal null and void in these circumstances and the same be nullified.c.An order to the 2nd Defendant for reinstatement of the Transfer of the Suit Premises to the 1st and 2nd Plaintiffs.d.Any other Order that the Court may deem fit and just to grant in the circumstances of this case.e.Cost of the suit as well as interest at Court rates from the date of filing of this suit until payment in full.

2. The Defendants failed to file their respective Defences to controvert the Plaintiffs averments.

3. The matter proceeded for hearing where the Plaintiff called two witnesses, while the Defence produced none.

Evidence of the Plaintiff 4. The Plaintiffs’ claim that on September 15, 1988 as nominees of Rasi Properties Limited, bought the property known as LR No 337/660 Athi River (hereinafter the ‘suit premises’) from the 1st Defendant and the same was transferred to them on December 16, 1994. They enjoyed quiet possession of the suit premises for twenty six (26) years. The Plaintiffs were shocked when they received a Land Rent Payment request issued by the Ministry of Lands in the name of the 1st Defendant which they highly believe was based on a letter from one Mr B L Limo, an employee of the Ministry of Lands dated March 28, 2013 purportedly revoking the entry by the 2nd Defendant on the Title Document for the Suit Premises. The Plaintiffs averred that they are the bona fide owners of the suit premises and the actions intimated above were meant to unlawfully dispossess them of their hard-earned property. Further, that their claim is for cancellation, annulment and/or declaration of interest purportedly created by the 1st Defendant through the 2nd Defendant in favour of the 1st Defendant as the same is unlawful, fraudulent, null and void. It was PW1’s testimony that they have been receiving threats from a relative of a Director of the 1st Defendant and on April 4, 2014 they received summons to attend the CID offices Athi River Police Station in relation to an inquiry on purportedly making documents without authority as regards the suit premises. In support of their testimony they produced the following documents as exhibits: Copy and Original Title Deed for LR No 337/660 Athi River; Letter from Mr B L Limo dated March 28, 2013; Sale Agreement and transfers for LR No 337/660 Athi River dated September 15, 1998; Transfer dated December 16, 1994; Certificate of Lease- Grant IR No. 34785; Letter dated March 26, 2012 from M/s Lloyd Masika Limited; Copy of Search; Letter dated May 31, 1998; Letter dated June 21, 1988; Letter dated July 6, 1988; Letter dated July 7, 1988; Letter dated July 1, 1988; Letter dated May 31, 1991; Letter dated November 3, 1994; Letter dated November 9, 1994; Letter dated March 20, 1991; Letter dated May 25, 1994; Letter dated October 7, 1994; Letter dated November 11, 1994; Letter dated November 14, 1994; Letter dated November 16, 1994; Barclays Banker’s Cheques dated November 21, 1994; Letter dated November 25, 1994; Letter dated November 29, 1994; Letter dated January 3, 1995; Letter dated May 31, 1995; Letter dated June 12, 1995; Letter dated July 27, 1995; Letter dated July 23, 1998; Letter dated June 29, 1999; Letter dated June 30, 1999; Letter dated July 2, 1999; Letter dated July 1, 1999; Letter dated July 6, 1999; Letter dated August 17, 1999; Letter dated August 18, 1999; Letter dated August 24, 1999; Letter dated September 6, 1999; Letter dated February 8, 2000; Letter dated; February 22, 2000; Letter dated July 17, 2000; Site rate demand Note dated February 24, 2000; Rates Demand Notice for the year 2000; Letter dated August 3, 2000; Letter dated August 10, 2000; Letter dated August 30, 2000; Letter dated September 25, 2000; Letter dated September 29, 2000; Letter dated October 17, 2000; Application for Registration dated October 16, 2000; Letter dated November 23, 2000; Letter dated January 10, 2001; Letter dated January 19, 2001; Letter dated February 16, 2001; Letter dated February 22, 2001; Letter dated March 19, 2001; Letter dated May 29, 2001; Letter dated January 7, 2002; Letter dated February 19, 2002; Later dated February 22, 2002; Letter dated March 13, 2002; Letter dated March 14, 2002; Letter dated May 24, 2002; Letter dated June 6, 2002; Letter dated July 2, 2002; Letter dated July 23, 2002; Letter dated September 11, 2002; Letter dated September 17, 2002; Letter dated October 1, 2002; Letter dated October 5, 2002; Letter dated March 28, 2013 addressed to the Town Clerk from the Commissioner of Lands; Letter dated December 11, 2013; Land rent payment request; Notice to compel attendance; Summons through the Local Area Chief; Notice of the Order to Attend; Letter dated January 13, 2015; Letter dated April 2, 2015; Charge sheet; Rates Clearance Certificates; Rates payment requests; Rent Clearance Certificates; Land rent payment receipts; Pleadings-ELC No 255 of 2017; Letter dated May 26, 1994; Letter dated November 4, 1994; Letter dated November 22, 1994; Consent dated December 16, 1994; Letter dated September 28, 2000; Letter dated October 21, 2000 and Letter dated August 17, 1999. PW2. David Wambua Masika, the Chairman, Lloyd Masika Estate swore his statement dated September 20, 2019 and stated that he was approached by David Mbiti to sell their properties. One of them was LR No 337/660 Athi River and upon doing an official search, they found that it belonged to the vendor. He stated that in the same year they received a letter from Kenya Commercial Bank to proceed and complete the transaction. They had already identified a buyer and a letter of offer issued to them. They were then told that there was a receiver for the vendor upon which they released the 10% to the receiver and do not know what happened next. That marked the end of the Plaintiffs case. The Defence did not call any witnesses and the matter proceeded by way of written submissions.

Submissions Plaintiffs’ submissions 5. The Plaintiffs in their submissions contend that they have produced various uncontroverted documents to demonstrate that they regularly acquired the suit premises from the 1st Defendant and were issued with a title under the provisions of Section 23 of theRegistration of Titles Act Cap 281 Laws of Kenya (Repealed) after adhering to all the laid down procedures. They further reiterated that the purported cancellation of their Title was unlawful as they were not granted an opportunity to be heard prior to the cancellation of their transfer. They relied on Sections 60, 61 and 64 of the Registration of Titles Act, Cap 281 which exclusively gives the courts’ jurisdiction to cancel existing titles. They quoted the following decisions to buttress their arguments; Republic v Commissioner of Lands & 3 Others Ex-parte Market Plaza Limited [2016] eKLR; Dr Joseph NK Arap Ngok v Justice Moijo Ole Keiuwa & Others, Nairobi Civil Application No 60 of 1997; Omega Enterprises (Kenya) Limited v Kenya Tourist Development Corporation Limited & 2 others [1998] eKLR; JMK v MWK & Another [2015] eKLR.

1st Defendant submissions 6. The 1st Defendant in its submissions contends that the evidence produced by the Plaintiffs does not establish any sale of the suit property as between the Plaintiffs and the 1st Defendant. It then states that the 1st Plaintiff averred in their witness statement that they bought the suit premises on September 15, 1988 from the 1st Defendant as nominees of Rasi Properties Ltd and that the Property was transferred to them on December 16, 1994, this is a complete variance with the documentary evidence produced by the Plaintiffs. It’s the 1st Defendant’s submissions that there is no evidence whatsoever of payment of the purported purchase price. It argues that the transfer document dated December 16, 1994 is also not executed by the 1st Defendant but by a third party therefore not valid to convey the 1st Defendant’s property to the Plaintiffs. It reaffirms that the Plaintiffs are bound by their own pleadings and their own evidence is contradictory and does not support evidence of a sale having been entered into and concluded as between the Plaintiffs and the 1st Defendant. It avers that the Plaintiffs have failed to prove their case as pleaded.

Analysis and Determination 7. Upon consideration of the Plaint, testimonies of the witnesses including exhibits and rivalling submissions the following are the issues for determination: Whether the Plaintiff is entitled to the Orders sought in the Plaint.

Who should bear the costs of the suit.

8. In the Plaint, the Plaintiffs sought for orders of permanent injunction restraining the Defendants from interfering with the suit land and declaration that revocation of the transfer to them vide a Letter by Mr B L Limo is illegal, null and void. They further sought for reinstatement of the Transfer of the suit premises in their names including costs of the suit.

9. The Plaintiffs claim to be nominees of Rasi Properties Limited and contend that they bought the suit premises from the 1st Defendant for Kshs 250,000, and the same was transferred to them on December 16, 1994. Further, that they were issued with a Certificate of Lease dated the July 10, 2002 and have enjoyed quiet possession of the suit premises for twenty six (26) years. It was their testimony that prior to the purchase of the suit premises, they had conducted a search which confirmed the said land belonged to the 1st Defendant. They contend that sometime in 2014 their names were omitted from the Rent and Rates Statements issued by the Ministry of Lands and Mavoko Municipal Council and replaced with one for the 1st Defendant, yet they had been paying the requisites rates including rent. It was their testimony that the revocation of their title was based on a letter from one Mr BL Limo, an employee of the Ministry of Lands dated March 28, 2013 purportedly revoking the entry by the 2nd Defendant on the Title Document for the suit premises.

10. The Defendants failed to file their Defences to controvert the Plaintiffs’ averments and in the foregoing I find that the Plaintiffs’ claim remains unchallenged. Be that as it may, I will proceed to analyze the evidence tendered in court on how the Plaintiffs acquired the suit premises. The Plaintiffs’ witnesses testified that vide a letter dated the July 7, 1988, the 1st Defendant through its agents Messrs Lloyd Masika Limited offered the suit premises for sale at a cost of Kshs 250,000 which offer they accepted, on July 11, 1988. The Plaintiffs paid Kshs 25,000 being 10% deposit to Messrs Lloyd Masika Limited with a Sale Agreement being duly executed with the 1st Defendant on September 15, 1988. PW1 David Wambua Masika who is the Chairman of Messrs Lloyd Masika Limited in his testimony stated that he was approached by Mr Mbithi in 1988 to sell the suit premises and they did a search where it confirmed the said land belonged to the vendor. Further, in the same year, they received a letter from Kenya Commercial Bank to complete the transaction. He confirmed that they had already identified a buyer and a Letter of Offer had been given to them. Further, they were told there was Receiver for the Vendor whom they released the 10% purchase price to. I note as per entry No 379 dated July 10, 2002, the Plaintiffs were registered as proprietors of the suit premises. As per the Transfer dated the December 16, 1994 between the 1st Defendant and the Plaintiffs in respect to the suit premises, I note it was signed by one Richard Gachuiri Kagathi the Receiver Manager on behalf the 1st Defendant. The said Transfer was registered in the Central Registry Nairobi on October 17, 2000. Further, vide a letter issued by B L Limo for the Commissioner of Lands, addressed to the town Clerk Mavoko, he stated that the transfer to the Plaintiffs was fraudulent and hence had been cancelled and the suit premises reverted back to the 1st Defendant.

11. The Plaintiffs produced several correspondence in respect to the transaction over the suit premises and I wish to highlight a few. In the letter dated the May 31, 1988, the 1st Defendant wrote to Messrs Lloyd Masika Ltd to proceed and sell the suit premises at Kshs. 350,000. Further, Lloyd Masika Ltd issued the Plaintiff with a Letter of Offer dated the July 7, 1988 selling the suit premises at Kshs 250,000 and directing them to pay 10% of the purchase price. While in the letter dated the 1st July, 1988, the Plaintiffs confirmed they had paid the 10% being Kshs 25,000 and directed Lloyd Masika Ltd to their advocates Messrs Kimani Kairu & Company Advocates to finalize the transaction. As per a Letter dated the May 31, 1991 written by one David M Mbiti, he confirmed that the 1st Defendant had been under receivership from 1989 upto 1990 when the suit premises were sold. Further, vide a letter dated the November 3, 1994, the lawyers of the Receiver for the Vendor Messrs Raballa & Company Advocates, sought for remittance of the 10% from Lloyd Masika and acknowledged receipt of the money vide their letter dated the November 9, 1994. Yet in another, letter dated the March 20, 1991, from Messrs Kimani Kairu & Company Advocates addressed to Mr J Ruparel in respect to sale of suit premises, they stated as follows:“We thank you for your letter dated the March 19, 1991 together with the enclosures. Our official receipt of your cheque is attached herewith. We are now proceeding to prepare a fresh transfer in the name of your nominees and shall revert to you and them shortly.”

12. I note the said letter was copied to the Plaintiffs’ herein. Further, in a letter dated the May 25, 1994 from Kenya Industrial Estates Limited addressed to Messrs Raballa & Co Advocates, they confirmed that the Receiver for the 1st Defendant already executed the Transfer Documents for the suit premises and the said letter was copied to J Ruparel, Estate Agents. I note in another letter dated the May 31, 1995, from Messrs Kimani Kairu & Co. Advocates, addressed to Mr Jayant Ruparel, they confirmed that vide their letter dated the November 9, 1996, they had forwarded Kshs 145,163. 60 to Raballa & Co Advocates for the Receiver of the 1st Defendant which was part of the purchase price. In the said letter the Advocates explained that Kshs 56,536. 40 was being applied to pay rates due to Athi River Urban Council. Further, Mr J Ruparel through his letter dated June 12, 1995 confirmed that he sold the suit premises to the Plaintiffs. In another letter dated the July 2, 1999, written by Jayant J Ruparel on a letterhead for Rasi Properties Limited, enclosed a Cheque for Kshs 250,000 to the firm of Messrs Kimani Kairu & Co Advocates being the purchase price for the suit premises which was acknowledged on July 6, 1999. The said firm issued a receipt dated July 6, 1999 indicating it was for the purchase price for the suit premises and the firm of Messrs Waruhiu Kowade & Nganga Advocates that were now handling the transaction on behalf of the 1st Defendant confirmed receipt of Kshs 250,000, and promised to release the title to the suit premises.

13. From the analysis of the correspondence above, it emerges that the 1st Defendant was put under receivership by Kenya Industrial Estates Limited who appointed various lawyers to undertake the transaction herein on their behalf until the Plaintiffs were registered as proprietors of the suit premises. I find that the 2nd Defendant’s official B L Limo did not have the legal capacity to cancel the registration of the Plaintiffs as owners of the suit land as Section 80 of the Land Registration Act grants this mandate only to the court.

14. On validity of a title, Section 24(a) of the Land Registration Act stipulates as follows:“Subject to this Act, the registration of a person as a proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto...”

15. While Sections 26(1) (b) of the Land Registration Act states inter alia:“The certificate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … 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 … 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.”

16. In the case of Willy Kipsongok Morogo vs Albert K Morogo (2017) eKLR, the Court held as follows:“The evidence on record shows that the suit parcel of land is registered in the names of the Plaintiff and therefore is entitled to the protection under Sections 24, 25 and 26 of the Land Registration Act.”

17. While in the case of Joseph NK Arap Ng'ok V Moijo Ole Keiwua & 4 Others[1997] eKLR, where the Court of Appeal held that:“Once one is registered as an owner of land, he has absolute and indefeasible title which can only be challenged on grounds of fraud or misrepresentation and such is the sanctity of the title bestowed upon the title holder.”

18. Further, in Civil Appeal No 246 of 2013 Arthi Highway Developers Limited Vs West End Butchery Limited and Others, the Court of Appeal expressly stated thus:“Section 23(1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act set out below) gives an absolute and indefeasible title to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law takes precedence over all other alleged equitable rights of title. In fact the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.”

19. In associating myself with the cited decisions, the quoted legal provisions as well as the evidence before me, I find that the Plaintiffs having been registered as proprietors of the suit premises and hold a Certificate of Lease to that effect, were indeed the absolute proprietor of the said land and the revocation of their transfer by BM Limo on behalf of the Commissioner for Lands was void ab initioand of no legal consequence. I hence find that they entitled to protection of the law in accordance with the provisions of Section 24, 25 and 26 of the Land Registration Act.

20. In the circumstances, I find that the Plaintiffs have proved their case on a balance of probability and will enter Judgment in their favour in the following terms:a.A Permanent Injunction be and is hereby issued restraining the Defendants, their Agents and/or Servants from interfering, trespassing upon, entering or interfering with the Suit Premises (LR No 337/660 Athi River).b.A declaration be and is hereby issued that the revocation of the transfer to the 1st and 2nd Plaintiffs by way of a letter by one Mr BL Limo, an employee at the Ministry of Lands is illegal null and void in these circumstances and the same is hereby nullified.c.The 2nd Defendant be and is hereby directed to reinstate the Transfer of the suit premises LR No 337/660 Athi River, to the 1st and 2nd Plaintiffs forthwith.d.The costs of the suit is awarded to the Plaintiffs.

DATED, DELIVERED AND SIGNED VIRTUALLY IN MACHAKOS THIS 10TH DAY OF NOVEMBER, 2022CHRISTINE OCHIENGJUDGE