[2018] KEHC 6052 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO. 129 OF 2017

FORMERLY MERU ELC CASE NO. 25 OF 2011

SARAH THARA................................................................PLAINTIFF

VERSUS

JAMLICK KINYUA NJOKA.......................................DEFENDANT

JUDGMENT

1. In her plaint dated 27th November, 2007, the plaintiff prays for judgment against the defendant for orders:

a) That the defendant by himself, his family, agents, servants or anybody acting under the defendant’s instructions do remove themselves and their properties from land parcels numbers Magumoni/Itugururu/1035, 1036 and 1037 within 14 days from the date of judgment and in default the defendant by himself, his family, agents, servants, property and / or anybody acting under the defendant’s instructions be forcefully evicted and / or removed from land parcels numbers Magumoni/Itugururu/1035, 1036 and 1037 upon expiry of 14 days after the date of judgment.

b)The defendant by himself, his family, agents, servants and / or anybody acting under the defendant’s instructions be permanently restrained from trespassing on, entering upon, cultivating, cutting down trees, committing acts of waste and degradation, barring and / or preventing the plaintiff from accessing, occupying, using and / or exercising the plaintiff’s proprietory rights over land parcels numbers Magumoni/Itugururu/1035, 1036 and 1037.

c) Costs for the suit.

2. In his defence dated 9th day of January, 2008 the defendant averred that he had appealed against the decision of Chuka Magistrate’s Court Civil Suit No. 8 of 1990 vide Meru High Court Civil Appeal Number 1003 of 2006. On account of that reason, inter alia, the defendant prayed that the plaintiff’s suit be dismissed with costs to himself. The defendants statement of defence is reproduced in full herebelow:

DEFENDANT’S STATEMENT OF DEFENCE

1. Save what is herein expressly admitted the defendant denies each and every singular allegation contained in the plaint as if the same were herein set out verbatim and traversed seriatim.

2. The defendant admits paragraphs 1 and 2 of the plaint in so far as the same are merely descriptive of the parties to this suit save that his address for service for the purpose of this suit is C/O P. O. Box 37 Magumoni.

3. The contents of paragraphs 3 and 4 of the plaint are denied and the plaintiff is put into strict proof thereof.

4. The contents of paragraph 5 of the plaint is denied in toto and the plaintiff is put to strict proof thereof.

5. That the defendant is a stranger to the averments contained in paragraphs 6, 7 and 8 of the plaint and therefore the plaintiff is put into strict proof to the contrary.

6. That no notice of intention to sue have ever been served upon the defendant and thus the plaintiff is not entitled to costs of this suit.

7. There has been previous proceedings between the plaintiff and the defendant over the same subject matter.

8. Strictly without prejudice to any of the foregoing the defendant avers,

a) This suit is res-judicata and therefore an abuse of the due process of the court process. All the issues raised herein have been adjudicated upon in Chuka Principal Magistrate’s Court Civil Suit No. 8 of 1990.

b) That the defendant have (sic) appealed against the decision of Chuka Principal Magistrate’s vide Meru Appeal Number 103 of 2006.

c) The defendant contends further that the plaintiff ought to have either appealed against the decision of the plaintiff and or seek a judicial review hence this suit is bad in law and is incompetent. It should therefore be dismissed with costs in so far as it discloses no cause of action.

9. The jurisdiction of the honourable court is admitted.

Reasons wherefore, the defendant prays that the plaintiff’s suit be dismissed with costs to the defendant.

Dated at Chuka this 9th day of January, 2008

3. The plaintiff’s reply to the defence is dated 14th January, 2008 and is in the following form:

REPLY TO DEFENCE

1. The plaintiff reiterates the contents of paragraphs 1 to 11 of the plaint.

2. The plaintiff denies the contents of paragraphs 1, 3, 4, 5, 6, 7 and 8 of the statement of defence and the defendant is put into strict proof thereof.

3. The plaintiff avers that the defendant was issued with a notice of intention to sue, that there have been no previous proceedings between the plaintiff and the defendant over the subject matter herein, and that this suit is not res-judicata and the same is properly before this court and the defendant is put to strict proof thereof.

4. The plaintiff further avers that the issues raised in this suit were never adjudicated upon in Chuka Principal Magistrate’s Court Civil Case No. 8 of 1990 as alleged as the said court has no jurisdiction to entertain this matter and the defendant is put to strict proof thereof.

5. The plaintiff avers that she is a stranger to Civil Appeal No. 103 of 2006 and the defendant is put to strict proof thereof.

6. Save what is herein above expressly admitted the plaintiff denies each and every allegation contained in the statement of defence as if the same were set out singularly and traversed ad seriatim.

Reasons therefore the plaintiff prays for judgment as prayed for in the plaint.

DATED AT EMBU THIS 14TH DAY OF JANUARY, 2008

DUNCAN MUYODI & CO.

ADVOCATES FOR PLAINTIFF

4. The plaintiff’s witness statement filed on 26th February, 2014 is in the following form:-

STATEMENT OF SARAH THARA (THE PLAINTIFF)

I am a female adult.

I reside in Meru South District. I am the absolute proprietor of Land Parcels Numbers Magumon/Itugururu/1035, 1036 and 1037.

Sometimes in the year 2003, the defendant in this case one Jamlick Kinyua Njoka came into my land parcels named above without any authority, consent or right.

He chased me from my land parcel numbers Magumoni/Itugururu/1035, 1036 and 1037 and swore to kill me if I returned on the said parcels of land.

He has since then been cultivating, cutting down trees, putting up structures, interfering with the said land and committing acts of waste and degradation on my said land parcels.

He has prevented me from accessing, using, occupying and generally exercising my proprietory rights over my land parcels.

The defendant’s occupation and use of the said parcels of land’s are unlawful and an interference with my proprietory rights over the same.

I have never been able to enter upon or to use my land since the defendant’s unlawful entry and occupation of the same.

I therefore wish to have the defendant evicted from the said land so that I can be able to re-enter, use and to exercise my proprietory rights over the said parcels of land.

That is all I wish to state.

Dated at Embu this 22nd day of February, 2011

5. The defendant filed a witness statement dated 30th August, 2017. The statement is in the following form:

DEFENDANT’S WITNESS STATEMENT

I am Jamlick Kinyua Njoka, residing and working for gain as a peasant at Igamaundu village, Itugururu Location of Tharaka Nithi County.

I am the son of the late Zakaria Nkune (herein after the deceased). I know the parcels Nos. Magumoni/Itugururu/1035, Magumoni/Itugururu/1036 and Magumoni/Itugururu/1037 are parcels of land 1035 and 1036 are still the property of the estate of the deceased and therefore do not belong to the plaintiff. ZAKARIA Nkune died on 22. 9.1999. It is therefore not true the plaintiff got th titles in question legally. A fraud was perpetuated on the estate of the deceased. Erstwhile owned by the deceased.

I am aware that the deceased in his life time transferred LR. MAGUMONI/ITUGURURU/1037 to Agnes Karuru before he died.

Parcels No. Magumoni/Itugururu/1037 does not belong to the plaintiff but (sic) a legal title to a third party.

The two remarking (sic) as no letters of administration or any grant issued to enable the transfer to the plaintiff.

I am stating further that the transfers were illegal and I pray this court to dismiss this suit with costs. Let me also say that the case no. 129 of 2017 Chuka SMCC 90/1998 cannot property (sic) transfer the deceased land yet he died in 1999, while the transfers are alleged to have been done in 2002 after his demise. The heirs of the deceased were never made parties in that suit.

That is all I wish to state.

Dated this 30th day of August, 2017

6. In her evidence, the plaintiff testified that she was the proprietor of Land Parcel Numbers Magumoni/Itugururu/1035, 1036 and 1037. She produced titles to these parcels of land as her exhibits.

7. PW1 told the court that presently she did casual labour around Chuka. She told the court that she was chased away by the defendant, Jamlick Kinyua Njoka from the suit lands. She testified that the defendant came in a vehicle with some unidentified people, beat her up and chased her away. She also told the court that the defendant rents out the suit lands.

8. During cross-examination, the defendant asked the plaintiff if she was aware that parcel No. Magumoni/Itugururu/1037 belonged to one Agnes Karuru. She denied that knowledge. PW1 told the defendant that her title was evidence that she owned that parcel of land.

9. PW1 asked the court to adopt her witness statement (op.cit) as her evidence in this suit.

10. DW1 testified that Land Parcels Numbers Magumoni/Itugururu/1035 & 1036 were registered in the name of Zacharia Nkuna, his father. He said that the original titles to the suit land were in his custody.

11. DW1 asked the court to adopt his witness statement dated 30th August, 2017 as his evidence in this suit.

12. When cross-examined by Mr. Okwaro, the plaintiff’s advocate, DW1 was categorical that the suit lands were registered in the name of his father, Zacharia Nkune. He was also categorical that Land Parcel Number Parcel Magumoni/Itugururu/1037 was registered in the name of Agnes Karuru Mugunda. Shown Green Cards for Land Parcel Numbers Magumoni/Itugururu/1035, 1036 and 1037, he reluctantly agreed that the parcels of land were shown to be registered in the name of the plaintiff Sara Thara. DW1 denied knowledge of suit No. Chuka SPM 8 of 1990 which was said to have been the authority concerning transfer of the suit lands to the plaintiff. Cross-examined further, he admitted knowledge of the suit which he said was his father’s suit. He however said that he was not involved in the suit.

13. DW1 denied that he had refused to present the original titles to the Land Registrar so that they could be destroyed before new titles were issued by the Registrar. He also admitted that he had never challenged the genuineness of the plaintiff’s Titles to the suit land in any court of law.

14. DW1 admitted that at one time the plaintiff had lived on the suit land but added that he and his father “returned her to her father”. He admitted that he had participated in the plaintiff’s eviction from the suit land, together with his clan members.

15. During further cross-examination DW1 told the court that he did not use the suit land. He also denied renting out the suit lands to other people. Immediately thereafter, DW1 told the court he had sometimes after the eviction of the plaintiff, used the suit land. He denied beating up the plaintiff and destroying her house.

16. Reluctantly he admitted that a criminal case had been filed against him, his father and another person with respect to the beating up of the plaintiff and her eviction. DW1 claimed that the suit had been compromised, without saying how and proffered that he and his co-accused had been given a non-custodial sentence. He admitted that the three of them did not appeal against the conviction handed down in that case.

17. During further cross-examination DW1 told the court that the plaintiff had never tried to go back to the suit lands. He also, contrary to his earlier testimony, told the court that he had never evicted the plaintiff from the suit land. Then he told the court that he would never allow the plaintiff to use the suit lands. He was laconic and categorical regarding this position and said: “I will never allow her to go back there.”

18. The plaintiff’s advocate expressed the wish to file written submissions. DW1 told the court that he would not file any written submissions.

19. The plaintiff’s submissions were filed by her advocate. In her written submissions she states as follows:

1. The plaintiff is the lawful proprietor of Land Parcels Numbers Magumoni/Itugururu/1035, 1036 and 1037. The plaintiff has valid titles to the said parcels of land.

2. Sometimes in the year 2003, the defendant went and chased the plaintiff from her land parcels numbers Magumoni/Itugururu/1035, 1036 and 1037 and swore to kill the plaintiff if she ever returned to the said parcels of land. Since then, the defendant has been occupying, cultivating, cutting down trees, putting up structures, leasing out the suit lands, interfering with the said land and committing acts of wastage and degradation on the land. The defendant has also prevented the plaintiff from accessing, using, occupying and generally exercising her proprietory rights over the said parcels of land.

3. The plaintiff in her evidence stated that she has been unable to enter upon and use the land since the defendant’s unlawful entry and occupation of the same because of the defendant’s hostility and threats to the plaintiff’s life.

4. The plaintiff filed her witness statements and a list of documents including the title deeds to the three parcels of land plus the certificates of official searches. The said documents were produced as the plaintiff’s exhibits.

5. The defendant filed his statement of defence dated 9th January, 2008. In his defence, the defendant denied the contents of the plaint and averred that the suit is res-judicata and that the issues raised by the plaintiff were adjudicated upon in Chuka Principal Magistrate’s Court Civil Suit Number 8 of 1990. The plaintiff filed a reply to defence dated 14th January, 2008 stating that the issues raised in the present suit were never adjudicated upon in Chuka Principal Magistrate’s Court Civil Suit Number 8 of 1990.

6. The defendant further filed his witness statement and a list of documents dated 30th August, 2017. The defendant contends that the land parcels numbers Magumoni/Itugururu/1035 and 1036 are the property of his deceased father Zakaria Nkune and that the same do not belong to the plaintiff. He also stated that land parcel number Magumoni/Itugururu/1037 does not belong to the plaintiff but to a third party. He produced two certificates of searches to land parcels numbers Magumoni/Itugururu/1035 and 1036 issued on 19th June, 2002. The plaintiff was registered as the proprietor of the suit lands on 29th August, 2003.

7. The plaintiff submits that she is the registered proprietor of the suit lands. The title deeds to the said land were produced in court as exhibits. The allegations by the defendant that parcel number Magumoni/Itugururu/1037 belongs to a third party are unsubstantiated as no evidence was tendered to prove that. It is the plaintiff’s submissions that the defendant illegally trespassed and is now in illegal occupation of the suit lands in total disregard to the law and the sanctity of titles of land.

8. The plaintiff further submits that the registration of the suit parcels of land in her name conferred upon her absolute ownership rights and privileges in terms of section 24 and 25 of the Land Act of 2012 and that these rights are indefeasible unless it is proved that the registration of the titles was obtained through fraud and misrepresentation to which the plaintiff is proved to be a party or if the titles were acquired illegally, unprocedurally or through a corrupt scheme within the meaning of section 26 (1) (a) and (b) of the Land Registration Act 2012.

9. The defendant alleged that the suit lands belonged to his late father Zakaria Nkune who died on 22nd September, 1999. The defendant further confirmed that neither the defendant nor any other member of the defendant’s family has filed succession proceedings in respect of his late father’s estate. The defendant also confirmed that he had not taken any legal action against the plaintiff to have the said titles cancelled. The titles to the suit lands held by the plaintiff are unchallenged and therefore no claim can be made to the titles to the said land that is adverse to that of the plaintiff.

10. The defendant has therefore never claimed the suit lands. The defendant never filed a counter-claim. The plaintiff is the undisputed proprietor and under the law she is entitled to the rights of a proprietor as aforesaid. The defendant has no right or claim to the suit lands.

11. The defendant also never tendered any evidence to prove that this case is res judicata or that the matters in issue in Civil Case Number 8 of 1990 in the Principal Magistrate’s court at Chuka were the same as the matters in issue in this case.

12. The defendant during his cross examination stated that he would not under any circumstances allow the plaintiff to occupy or utilize the said land. The defendant said so despite claiming that he does not occupy or utilize the suit lands. The defendant also confirmed that he chased the plaintiff from the suit lands.

13. The plaintiff is therefore entitled to occupy and utilize her parcels of land.

14. There was no prove presented before this court that there was fraud or misrepresentation on the part of the plaintiff in acquiring the titles to the suit lands.

15. The effect of registration of a person as a proprietor of land is well captured in section 24 of the Land Registration Act.

16. The plaintiff submits that under section 26 of the Land Registration Act, the certificate of title held by the plaintiff is conclusive evidence of proprietorship. As a registered proprietor, the plaintiff is entitled to all the rights and privileges conferred by sections 24 and 25 of the Land Registration Act as well as Article 40 of the Constitution.

17. The plaintiff’s advocate reproduces the following sections of the Land Registration Act:

“Subject to this Act

(a) the registration 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 on appurtenant thereto.”

Section 25(1) of the Land Registration ACT Provides that;

“The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever…”

Section 26(1) of the Land Registration Act provides that;

“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 grounds of fraud or misrepresentation to which the person is proved to be a party; or

b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme”.

18. The plaintiff produced title deeds to the suit lands to prove ownership of the suit parcels of land and that there being no evidence to the contrary from the defendant, the plaintiff has proved ownership.

19. The plaintiff asserts that in the case of Simon Njage Njoka –vs- Simon Gatimu Kanyi (2007) eKLR, the Court of Appeal in Nyeri, in allowing the Appeal, had the following to say:

“The appellant having provided a valid title to the piece of land and the respondent having not impugned it by way of counterclaim in the suit, the learned magistrate had no choice in the matter really than to hold that the respondent was a trespasser to that parcel of land belonging to the Appellant and liable to eviction. She should then have proceeded to evict the respondent.”

20. The plaintiff further relies on the case of Joel Kipchirchir Kitur v David Kimuti Langat & Another 2006 in which Judge L. Kimaru issued orders of eviction of the defendant from the parcels of land registered in favour of the plaintiff having found that the defendants were in unlawful occupation of the parcels of land and therefore were trespassers.

21. The plaintiff also relies on the case of KIPROTICH ARAP CHEPKWORY VS SIMION LANGAT & 3 OTHERS (2017) EKLR in which the court stated the following;

“I have seen from the documentary evidence tendered, especially the title deed and the official search, that the plaintiff is indeed the registered proprietor, he is entitled to enjoy all rights of such proprietorship including the right of exclusive possession. These rights are set out in section 25 of the Land Registration Act, … The defendants have not tendered any evidence which will go to prove that the plaintiff ought not to enjoy his rights as proprietor.”

22. The plaintiff further relies on the case of MARY NASAMBU MAKANDA V DENNIS WANYAMA (2017) eKLR in which the Court of Appeal in Bungoma, in allowing the Appeal, stated as follows;

“…The owner’s rights are protected by law. There is no dispute that the respondent entered the suit land without the permission, authority and/or consent of the registered proprietor… A person who enters another person’s land without the registered owners permission and/or authority is bound to be evicted. The law cannot protect him.”

23. The plaintiff frames the issues for determination as:

a) Whether the plaintiff is the proprietor of the suit lands.

The plaintiff asserts that this issue has been conclusively proved in the plaintiff’s evidence and production of valid and unchallenged title documents, as well as in the plaintiff’s submissions. It is therefore postulated that the plaintiff is entitled to her rights as a proprietor of the suit lands.

b) Whether the defendant chased away the plaintiff from the suit lands and whether the defendant is now occupying the suit lands illegally.

The plaintiff submits that the defendant admitted having chased her away from the suit lands. She also asserts that the defendant further stated that he would not allow the plaintiff to re-enter and to occupy or utilize her parcels of land. She also asserts that the defendant in his evidence confirmed that he is using the suit lands to the exclusion of the plaintiff .

c) Whether the defendant should be evicted from the suit lands and thereafter whether the defendant should be restrained from re-entering the suit lands.

The plaintiff submits that from the evidence before the court, the defendant is unlawfully interfering with the suit lands and is also unlawfully preventing the plaintiff from accessing, occupying and utilizing the suit lands. She submits that it is therefore clear that the defendant ought to be evicted from the suit lands and to be restrained from interfering with the plaintiff’s occupation and use of the plaintiff’s land. The plaintiff laconically states that she is entitled to her rights as a proprietor of the suit lands.

24. The plaintiff’s advocate submits that the plaintiff has proved her case on a balance of probabilities to warrant judgment being entered in her favour.

25. The plaintiff’s advocate asserts that:

(a) The plaintiff proved ownership of the suit lands.

(b) The defendant is interfering with the quiet possession and enjoyment of the plaintiff’s proprietory rights and he is therefore a trespasser.

(c) The defendant confirmed that he is barring the plaintiff from accessing the suit lands.

(d) The defendant has no credible defence against the plaintiff’s claim.

26. The plaintiff therefore prays for an order for the eviction of the defendant from the said parcels of land so that the plaintiff can be able to re-enter, occupy, use and exercise her proprietory rights over the parcels of land.

27. The plaintiff further prays that the defendant be thereafter restrained from re-entering the suit lands or interfering with the plaintiff’s use, occupation and exercise of the plaintiff’s proprietory rights.

28. The plaintiff also prays for costs of the suit.

20. I have carefully considered the pleadings proffered by the parties to buttress their diametrically opposed assertions.

21. At the outset, I make it clear that the authorities (op.cit) cited by the plaintiff are good authorities in the circumstances of this suit.

22. The plaintiff all through gave evidence which was in congruence with her pleadings.

23. On a balance of probabilities, I find the plaintiff’s evidence that she was beaten up by the defendant and was also evicted from the suit lands by the defendant in cahoots with other people credible. This finding is corroborated by the defendant’s reluctant admission that he had participated in the nefarious act of evicting the plaintiff from the suit lands. That the plaintiff had been threatened by the defendant is corroborated by the defendant’s statement, while being cross-examined by the plaintiff’s advocate that he would never allow the plaintiff to occupy the suit lands even if this court gave orders to that effect.

24. The defendant’s evidence was veritably garbled. He would deny one thing this moment and the next moment admit it. For example, he had categorically denied using the suit lands. The next minute he admitted that he had used the suit lands during a time he did not properly define. He denied stopping the plaintiff from the suit lands and then later on laconically and categorically, said that he would never allow the plaintiff to set her foot on the suit lands.

25. I find that the plaintiff was registered as owner of the suit lands through a competent court process. I find that the defendant refused to surrender the original titles to the suit lands and that the plaintiff acquired her titles through a competent judicial process. This being the case, the original titles the defendant clings to are not worth the paper they are written on. They are no longer valid titles.

26. I do find that the plaintiff did not obtain titles to the suit lands fraudulently. I also find that there is no appeal pending with regard to Chuka PM’s Court suit Nos. 8 of 1990. Civil Case No. 8 of 2017 concerning the suit was dismissed on 13th July, 2017.

27. I do find the narration of the circumstances surrounding this suit as contained in the plaintiff’s written submissions credible. In totality they cannot be faulted. They bring out forcefully and pellucidly the plaintiff’s case which has not in any probative manner been controverted by the defendant.

28. Through his evidence, the defendant has incorrigibly come out as a person who has utmost contempt for the rule of law. This is why he declares that he will not allow the plaintiff to re-access the suit lands even if the court so orders.

29. This suit was filed in the year 2007, about eleven years ago. It is regretted that all that time, the defendant has denied the plaintiff her proprietary rights over the suit lands. Is it just because she is a woman? The court does not know. As the old adage says, Justice delayed is Justice denied. For the plaintiff, the veritable eleven years delay is not judicially excusable. The majesty of the law, its puissance and external pulchritude in defence of those who are right and those who are weak will be demonstrably elicited in this judgment. The defendant’s palpable contempt for the law will be appropriately surceased.

30. In the circumstances, I find that the plaintiff has proved her case against the defendant.

31. This court, therefore, enters judgment for the plaintiff, SARAH THARA, against the defendant JAMLICK KINYUA NJOKA, and the following orders are issued:

(i) The defendant by himself, his family, agents, servants or anybody acting under the defendant’s instructions DO remove themselves and their properties from Land Parcels Numbers Magumoni/Itugururu/1035, 1036 and 1037 within thirty (30) days from the date of this judgment and in DEFAULTthe defendant himself, his family, agents, servants, property and / or anybody acting under the defendant’s instructions be forcefully evicted and / or be removed from Land Parcels Numbers Magumoni/Itugururu/1035 and 1037 upon expiry of thirty (30) days after the date of delivery of this judgment.

(ii)The defendant JAMLICK KINYUA NJOKA, himself, his family, agents, servants and / or anybody acting under the defendant’s instructions are restrained by way of a permanent injuction from trespassing on, entering upon, cultivating, cutting down trees, committing acts of waste and degradation, barring and / or preventing the plaintiff, SARAH THARA from accessing, occupying, using, and / or exercising her proprietary rights over Land Parcels Numbers Magumoni/Itugururu/1035, 1036 and 1037.

(iii) The Officer Commanding Station, Chuka Police Station, is hereby ordered to facilitate the implementation of the Orders issued by this Court today.

(iv) Costs will follow the event and are awarded to the plaintiff.

Delivered in open Court at Chuka this 27th day of June, 2018 in the presence of:

CA: Ndegwa

Sarah Thara – Plaintiff

Jamlick Kinyua Njoka - Defendant

P.M. NJOROGE

JUDGE