[2023] KEELC 21282 (KLR)

Sordo v County Government of Narok & 2 others (Environment & Land Case 1 of 2018) [2023] KEELC 21282 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEELC 21282 (KLR)

Republic of Kenya

In the Environment and Land Court at Narok

Environment & Land Case 1 of 2018

CG Mbogo, J

November 7, 2023

Between

Rimoine Ole Sordo

Plaintiff

and

The County Govenrment Of Narok

1st Defendant

The Govenrment Of Narok

2nd Defendant

The County Executive Member of Lands-County Government Of Narok

3rd Defendant

Judgment

1. On 10th January, 2018, the plaintiff filed a plaint dated 9th January, 2018 seeking the following orders: -1. A permanent injunction be granted against the 1st, 2nd and 3rd defendants jointly and severally by themselves, their agents or servants be restrained from entering, demolishing any structure, utilizing it, alienating, wasting, selling off, removing anything from it, interfering with and/or dealing in any way with all that parcel of land known as Land Reference number plot number 55 block 2. 2.A declaration that the 1st, 2nd and 3rd defendants be compelled to reinstate the plaintiff to his suit land by freshly constructing the building to its original state before the illegal, wrongful and irregular demolition caused to the business premises by them on the 4th January, 2018. 3.An order directing the 1st, 2nd and 3rd defendants in the alternative to fully, promptly, fairly and justly compensate the plaintiff for all the financial losses incurred for the damaged and demolished building, the goods, assets, fixtures on it and the value of the land as assessed by the Land Valuer and court at the current market rate.4. Special damage of Kenya Shillings Ninety-Eight Million, Two Hundred and Eighty Thousand Five Hundred Million (Kshs. 98,280,000. 00. 00). (sic)5. General damages for the agony, trauma, anxiety, emotional, psychological and stress caused to the plaintiff.6. An order that the officer commanding the Police Division (OCPD), Narok and Officer in Charge of Police Station (OCS) Narok to ensure maximum compliance of the court order.7. Costs and interest of this suit be awarded.

2. In the plaint, the plaintiff averred that he is the absolute and legal registered owner of parcel known as Land Reference Plot 55 block measuring 100 by 70 which he was allocated by the County and Urban Council vide minutes number 27/78. The plaintiff stated that having been granted all the ownership documents including a letter of allotment, he paid all the required statutory dues to the 1st defendant and was issued with receipts accordingly and he embarked on the process of developing the suit property.

3. The plaintiff further stated that in the year 2000, he sought approvals for developing the suit property and was issued with the same. Further, that to demonstrate his benevolence and philanthropy, when Mwalimu Plaza of plot no. 54, constructed their building, it was found that there was no space for smooth access to the main road and the Chairman of the County Council, Mr. Hassan Kamwaro, approached him and he agreed to have 6 metres of his land hived off without any inhibition. Further, that he started developing the structures both permanent and semi-permanent but which all met the required conditions and standards.

4. The plaintiff further stated that in the year 2014, he decided to renew his development plan and the Part Development Plan was approved and on 20th November, 2017 and he was issued with the Environmental Impact Assessment Licence to commence the construction estimated at a cost of Kshs. 30,375,000/-. The plaintiff further stated that the development was of a three storey building and he spent a lot of financial resources in preparation of the ground and purchasing of the building materials. Further, that there were tenants occupying the business premises and the estimated rental income was Kshs. 350,000/ per month and Kshs. 4,200,000/- per year. It was the plaintiff’s case that without notice as required by law, on 4th January, 2018, a gang of armed officers and goons demolished the premises without justifiable cause.

5. The plaintiff pleaded particulars of the illegality, irregularity and wrongfulness by the defendants as follows: -a.Failure to appreciate that the plaintiff was the legal and registered proprietor to all the suit property having been issued with all the relevant documents by the defendants.b.Failure to cause the legal documents issued to the plaintiff granting him the title, interest and interest to the land first and foremost cancelled, annulled and/or revoked by the provided for provisions of the Land laws before embarking on the illegal, wrongful and illegitimate demolition.c.Failure to respect the rule of law and the fundamental rights to private property as enshrined in the Constitution of Kenya.d.Failure to give adequate legal notice for the reason and the time to cause the demolition as founded under sections of the Land Act, Land Registration Act and the Environment Management and Coordination. Act.e.Failure to state the main purpose and or justifiable reason for the demolition of the structure.f.Failure to expressly declare that the land was either on a road reserve or was needed for public use under Article 40 (3) of the Constitution of Kenya and Sections 109 to 119 of the Land Act, hence ripe for compulsory acquisition leading to prompt, just and fair compensation for the acquisition of the said land.g.Failure to allow the plaintiff and the tenants peacefully move their goods and assets from the premises instead they just embarked on the demolition substantially destroying the same.h.Failure to allow the plaintiff and the tenants collect the debris and destroyed materials instead the defendants allowed goons to loot and also took the same to an unknown place.i.Failure to appreciate the substantial economic loss, psychological trauma, agony, stress and anguish caused to the plaintiff, his family members, friends, the tenants and the general public.j.Causing the demolition without any due care, attention or regard to the public interest.

6. As a result, the plaintiff claimed special damages of Kshs. 98,280,000/- from the demolition.

7. The defendants filed their statement of defence dated 26th February, 2018. The defendants contested the inclusion of the 2nd defendant in this suit and averred that the plaintiff is not the absolute nor the legal registered owner of the suit property for the reason that he does not have any legal title to the land, the authenticity of the letter dated 1st August, 1978 is questionable, and even if the said letter is genuine, the plaintiff forfeited his allocated plot automatically in the year 1980 for failure to develop the plot within the prescribed 24 months period.

8. The defendants further stated that neither the letter dated 26th February, 1986 and the letter dated 20th April, 1990 confer title on the plaintiff. Further, that the plaintiff has never been issued with an allotment letter and he has only provided a single receipt dated 23rd October, 2008 being payment of Kshs. 2,300/ of rent for the year 2008. The defendants while further denying the contents of the plaint further stated that the plaintiff was granted authority to commence construction even before he had submitted his development plan and as such, the approval for development was granted unilaterally without the consultation of the Director of Physical Planning and any of the relevant offices as is provided under the Act. They stated that the sanctioned demolition was undertaken with respect to a single storey building hosting three tenants/shops who were allowed ample time to remove their goods prior to commencement of the demolition exercise.

9. The defendants further stated that proper notice was duly issued and as such, the demolition was legal and that the demolition exercise does not fall into the category of compulsory acquisition but rather the plaintiff’s actions were in a bid to re-acquire illegally allocated public land. The defendants averred that the valuation report is a sham and the said valuation occurred four days post demolition. The defendants stated the damages listed are general in nature and the plaintiff has not produced any documentation in support save for a valuation report dated 8th January, 2018.

10. The plaintiff filed a reply to defence dated 10th March, 2018. The plaintiff while reiterating the contents of his plaint, stated that he is the absolute and registered owner of land reference plot 55 block IV as depicted in the letter of allotment and that he used to remit all the statutory dues as required by law more reason as to why he would be granted with the approvals and consent for building. The plaintiff further stated that the statutory procedures and process for the acquisition of the Certificate of Lease is based on a fixed survey which is undertaken by the allottee at an opportune moment and this would not be a plausible reason for causing the demolition of the suit property.

11. The plaintiff’s case proceeded for hearing on 23rd October, 2018 where the plaintiff, PW1, testified that he was the former Councillor- Ilmashariani ward for 20 years and the Chairman of the Defendant’s County Council for 2 years. He testified that he is the owner of LR plot No. 55 which is the suit property that was allocated to him by the former County Council and he has an allotment letter dated 1st August, 1978 after he had requested for allocation. He added that a letter dated 20th April, 1990 confirmed that he was allocated the suit land. It was his evidence that he was shown the plot by one Sinali who had custody of the area map which was approved by the Ministry of Lands.

12. PW1 further testified that when he was allocated the land, he could not build but he did so after about 20 years. Further, that in acquiring the suit property, he used a process that was transparent and that he has owned the said land for about 40 years. It was his evidence that he has been paying rates and rents for the property and developed the same and leased it as well. With regards to the development, PW1 testified that he requested for permission to develop from the Council in the year 2000 and he had a Part Development Plan prepared which was approved by the Council. He went on to say that he obtained permission from NEMA to enable him build a high storey building valued at kshs. 30,785,000/- and that he also had obtained the approval for the building plans which was authorized by County Public Health and Narok Water and Sewerage Company.

13. He testified that the building was pulled down after he obtained all the approvals. Further, that there is a road which is 6 metres and he is the one who donated part of the land to be hived off by the Surveyors. It was his testimony that the construction was stopped and later destroyed during which time before the demolition, he had about 10 tenants on the premises fetching a monthly rental income of Kshs. 350,000/-

14. PW1 testified that the suit property was destroyed on 4th January, 2018 without notice and since he was not there, he could not recover anything from the site. That upon demolition, he looked for a valuer who assessed the damage for about Kshs. 90,000,000/. He said that he has not moved to the suit property since the demolition because the defendants have created a road and have used the land as a parking bay.

15. PW1 was recalled for further cross examination on 24th January, 2019. PW1 testified that the minutes dated 20th July, 1978 are from the County Government who allocated him the suit property in minute No. 27/78 and that he has always paid for the same. On being shown the minutes, PW1 agreed that his plot is not indicated in the said list and hence the minutes are not genuine.

16. On cross examination, PW1 testified that he owns plot No. 55 Narok Block 4 and not Block 2. Further, that the letter dated 11th August, 1978 is from the defunct County Council of Narok and it was issued by one Kapungo. Further, that he started developing the suit property in the year 2005 and fenced it initially. With regard to the letter dated 20th April, 1978, PW1 testified that it does not show the block number but that the letter was signed by the Acting Clerk of the Town council. Further, that he got all the necessary approvals and started constructing and further obtained authority to do so vide a letter dated 2nd May, 2000. He testified that he presented the building plans for approval. Further, that he has the survey computations that don’t have the dates and the officials who made the computations.

17. PW1 further testified that he obtained NEMA approvals for pot No. 55 block ‘4’ but the one produced relates to block 55 block 2 which he said that it could be an error. Further, that he had tenants on the suit property who used to pay rent and that whereas he knows there exists a Narok Development Plan, it is not true that his plot is on a road reserve. Further, that he paid for the rates for the year 2016 alone, however all his documents including all receipts were destroyed as a result of the demolition of the plot.

18. On re-examination, PW1 testified that he was allocated the suit property through a letter which is stamped by the Clerk to the County. Further, that he started constructing the suit property in the year 2005 and prior to developing, he had obtained the approvals which were signed by the Narok Town Council. Further, that he had given his consent for the provision of an access road which measured about 6 metres and he was not issued with any notice for the demolition. He testified that the Narok Development Plan was prepared on 15th February, 2015 which is not approved, is not signed and the approved plan number is not shown.

19. On 29th October, 2019, Alfred Olumere Eshitera, PW2, while relying on his witness statement dated 15th November, 2018, testified that he was present when the court visited the site on 29th April, 2019. That during the site visit they had an observation of fresh demolition on a road construction taking place and that the property that was demolished is plot No. 55. Further, that as per the approved plan reference R. 163/2016/01 the plot exists both on the plan and on the ground. Further, that as per the plan there is a row of six plots from the Shell Petrol Station and Mwalimu Sacco building. He testified that the plan was prepared by the Narok County Government with the certification done by Erastus Mutuku who is the County Physical Planner. Further, that the plan was approved on 11th August, 2016 and the certificate signed on 14th June, 2016.

20. PW2 testified that on the ground, he found that there were earth movers on the site doing a new road and the plot measured about 50 x 100 while the road was 20 metres. He pointed out that part of the plot was constructed. He went on to say that there was a small diversion and the road measurement was not uniform all through as it was narrow as one moves down. In his conclusion, PW2 found that the suit property is captured in the cadastral plans and is also captured in both the local physical plan Narok Town and the survey plans at the Survey of Kenya. It was his testimony that the County Planner stated that the plan had been subjected to public participation before its approval, was advertised on two daily papers with national circulation and the official Kenya Gazette.

21. On cross examination, PW2 testified that he is aware that a public utility is not available for private allocation and he confirmed that he did not play any role in the preparation of the plan and that he has never come across a plan such as this before. He testified that the purpose of such a plan was to guide development of both infrastructure, residential, social offices, public spaces among others and it is a land use plan on physical plan. He agreed that the plan does not have plot numbers.

22. PW2 was further cross examined on 27th May, 2022. PW2 testified that he has been to the suit property three times but had not visited the same before the demolition. He admitted not to have seen what was there before the demolition and it was his evidence that the entire report is based on survey documents from Survey of Kenya, the report from the owner and google satellite images. He testified that the source of the image is not indicated but that the image was captured after demolition. According to the plan reference number 112163/2016/01, PW2 testified that a plan is a general proposal indicating land use of given area and are always prepared under legal framework. Further, that the one in reference was under the Physical Planning Act, Cap 286. He agreed that Plans are prepared to guide development both in private and public sectors and that they are also used as monitoring tools to ensure that the development conforms to the plan.

23. PW2 admitted that the plan was certified on 18th July, 2016 and approved on 11th August, 2016. He agreed that the approval was not complete. As per the FR plan that he produced, PW2 testified that he did not know when it was approved and whereas he relied on the RIM, he could not be able to tell when it was prepared. It was his testimony that his conclusion was to go by the development plan whose basis he could not tell. He testified that he was aware that the plaintiff was awarded the suit property in the year 1978 and property should appear in the development plan of 1978. He admitted that he did not look at the development plant of 1978. He said that he had not seen any document that supports the plaintiff’s contention that the plot was allocated in the year 1978.

24. PW2 testified that he had not seen any Physical Planners’ report indicating that plot 55 block 4 was available for allotment, the minutes by the full council approving the allocation and any survey plans with respect to allocation in 1978. On being shown the documents dated 26th February, 2018, PW2 testified that the plan for 1966 shows where the suit property is supposed to be and, in the map that he relied on, PSS is the first plot next to the road. That between PSS and the suit property, there are 6 plots and according to the said map, the suit property should be at the point marked “X” which is a road. From the documents shown to him, PW2 maintained that his report is correct that the suit property was validly allocated as per the letter dated 1st August, 1978 written to the plaintiff. He agreed that minutes allocating the suit land to the plaintiff ought to indicate the allotment but minute no. 27/78 but the same does not indicate the allocation. Further, that bullet number 5 indicates that the property would be forfeited if it is not developed within 24 months which is the procedure. He agreed that the letter dated 2nd May, 2000 is not a PPA2 and that he has not seen the PPA1 forms and according to him, one can be given a PPA2 without submitting a PPA 1 provided under schedule 2.

25. PW2 testified that the 1st approval from Narok District Physical Planer was in the year 1991 and the second approval by the clerk Narok Town is dated 2nd May, 2000 which is same date the plaintiff was given PPA 2. He agreed that the property being referred to is number 55 but has no block and that it is not possible to have another plot 55 in another block. With regard to the document dated 6th July, 2015, PW2 agreed that the previous plan was approved by the same office on different date and that there is no PPA1 or PPA 2 for the second development. He agreed that the suit property started existing in the development plan of the year 1991 and that there is nothing to show that the County Council ever changed user of road to private property. He agreed that the PPA 2 was issued subject to providing the building plans and the said PPA 2 was issued 9 years before. Further, that in the second development there was no application to develop and there was no approval.

26. On re-examination, PW2 testified that the plans that were brought to him were authorized by the Permanent Secretary Ministry of Lands and Urban Development and that the plaintiffs’ buildings were approved.

27. On 17th October, 2022, Saroni Ole Ololoisinkany (PW3), while adopting his witness statement dated 10th March, 2018 as his evidence in chief testified that the plaintiff was allocated the suit property by the County Council then headed by the late Hon. William Ole Ntimama and that the Physical Planner then was one Sinali while the clerk was Mr Naiguran. That during this time, he was also a Councillor and together with the plaintiff, they were allocated plots.

28. On 24th March, 2023, Dominic Odondi Auma (PW4), produced his report dated 22nd November, 2022. On cross examination, he testified that the report is based on information presently available from the Land Registry and Survey of Kenya Department. PW4 testified that he inspected the property on 20th November, 2022 and that there was no building on the land as at that date. He said that International Standards and Valuation Standards of Kenya allows him to get photos, building plans and any detailed explanation from a client to corroborate so as to enable him make a valuation report. He admitted that in preparing the report, he relied on the building plan which he did not annex. He further said that he relied on the slap foundation which he did not find it necessary to indicate as well as the description from the plaintiff. On the general remarks, PW4 testified that he was informed by the plaintiff that the tenants were paying approximately kshs. 280,000/- per month for the single storeyed building and that there were 13 tenants. He testified that he had no evidence on the basis of the rent but it was based on what the plaintiff had told him and that he did not have the receipts as well. He further testified that the period of the leasehold is not ascertained and that depending on the number of remaining years, in the leasehold, the value of the property cannot be the same. It was his testimony that he arrived at the value of kshs. 10 million for improvements on the Quantity Surveyors’ Standards for each region based on the building plan from the plaintiff.

29. PW4 further testified that he also took the measurement of the built-up area which was 3. 700 square feet and valued it for improvement at kshs. 10,000,000/- by dividing 3700 square feet at kshs. 2702 per square foot. He added that the property was not 100% fully developed but was slightly over 50% developed. It was his evidence that the value of Kshs. 10,000,000/- million was based on the photos, plans and the report he got to arrive on the figure.

30. On re-examination, PW4 testified that he arrived at the value of kshs. 62,675,000/- by carrying out market survey which value is broken into 2 elements i.e. the land element and the improvement element by interviewing surveyors, estate agents, valuers in the market and the value of vacant properties in town. He added that he did not get any information from the Land Registry and the Survey of Kenya. He also said that his report met the requirement and that he relied on the letter of allotment dated 1st August, 1978, the photos of the building and the building plans. According to him, he could be able to form an opinion on the structural construction of the building if he saw it based on his training.

31. The defendants’ case proceeded for hearing on 3rd July, 2023 where, Godfrey Ndubi Kwena (DW1), who while adopting his witness statement dated 26th February, 2018 as his evidence in chief and produced the minutes of the meeting held on 20th July, 1978 as D.Exhibit no. 1.

32. DW1 was stood down to 18th July, 2023 when he continued with his evidence in chief. DW1 produced D.Exhibit no. 2 and 3 being the Narok Town Development Zoning Plans between the years 1966 to 1985 and the zoning plan for the year 2015. He testified that paragraph 6 of his statement shows that the dispute arose as a result of encroachment but that they have not filed the numerous complaints that the County Government received. According to him, the investigations were conducted by the Physical Planner- Mathias Ositima. It was his testimony that there is basis for the demolition. He pointed out that the minutes in D.Exhibit No. 1 are headed “plot allocation committee minutes meeting held on 20th July, 1978 at the District Commissioner’s Office” and the name below it is “addendum” which means an addition to something else. It was also his evidence that it is in reference to a prior list of plots which list was not been provided to the court and that in number 148 there is no particular name.

33. On cross examination, DW1 testified that there were notices that were issued to the plaintiff before demolition was conducted but that he had not provided the said notices to the court and neither the original of the minutes.

34. On re-examination, DW1 testified that the minutes relate to the meeting of 20th July, 1978 but did not attend the meeting. He pointed out that there was no notice to produce the original.

35. Levin Mulei Kimeu (DW2) while adopting his witness statement dated 2nd June, 2023 as his evidence in chief testified that the Part Development Plan of 26th October, 1973 originates from the Ministry of Urban and Rural Physical Planning during which time the Ministry was the one that was in charge of developing the plan. That in D. Exhibit No. 2, there was a document numbered 1 which is a Development Plan. He added that document number 2 is a PDP prepared on 22nd March, 1968 and that their office was involved in its preparation. He went on to say that the final document is also a Development Plan prepared on 10th September,1981. It was his testimony that document No. 3 was prepared for Post Office and it shows where the Post Office is located, the neighbourhood and the roads in the said neighbourhood. He pointed out that there is no plot number 55 in the document. That in document No. 2, it is a Part Development Plan showing different uses i.e. areas of residential, business, workshop, petrol stations, administration, open spaces and foot paths, proposed roads, bus park and cemeteries. According to the said document no. 2, the road is marked black because it is existing and the said plan was approved by the Commissioner for Lands and given number 12 in the year 1968. He said that the suit land does not exist as per the plan.

36. DW2 further testified that document number 1 is a Development Plan prepared on 23nd December, 1966 in reference to number 163/66/3. He added that the area where the suit property is supposed to be is circled and marked as “X” at its centre and that it is for an existing road. It was his evidence that plot number 55 does not exist under the plan. According to document number 4 which is a Development Plan for Narok prepared on 10th September, 1981, the same was approved by the Director of Physical Planning on 23rd October, 1984 and by the Commissioner of Lands on 30th June, 1985 under Plan Number 25. DW1 testified that in the process of alienating public land, a PDP must be prepared and the same must be approved by the Commissioner of Lands. According to him, he has not come across such a plan in D. Exhibit No. 3, whereas he is the custodian of the Part Development Plan.

37. DW2 testified that there is also a Development Plan for Narok Town prepared on 15th February, 2019. It was his evidence that the Development Plan shows specific plots and zoning given and it gives the sizes of the roads. It was his testimony that where the suit property is located, is a 20 metre road and that the number where the suit property is supposed to be located is 125 which is adjacent to the road. He went on to say that the document number 3 in D. Exhibit No. 2 is a Part Development Plan for the Post Office and that it is visible in the plan of 15th February, 2015. He pointed out that it is zoned as number 465. He said that next to the Post Office, there is a plot which is adjacent to the 20 metre road. That after the road, there are 5 plots and a lane and the suit property is not amongst them as the 1st plot is number 56 which is as per document number 3 of D. Exhibit No. 2. In D. Exhibit No. 3, DW2 testified that there are 5 plots after the 20 metre road shown in the PDP and that the suit property is not amongst them. He said that as per the Development Plan of 15th February, 2015, the suit property is not visible and it is not provided for.

38. According to the ground report on number 55 block 4 dated 19th May, 2019 and prepared by E.O. Ositima, DW2 testified that the report shows that plot number 55 block is on a 20metre wide road running from Maai Mahiu Narok to the Mosque which plot had not been surveyed as it was on a road. DW2 produced the report as D. Exhibit No. 4.

39. On cross examination, DW2 testified that the report dated 15th February, 2015 is not signed by the Director of Physical Planning. He also said that the report has not been signed by the Cabinet Secretary for the time being in charge of Lands and that the same has not been approved and given the plan number. DW2 agreed that the Land Use Plan is also called a Zoning Plan and the same is signed and dated 24th March, 2016. That according to this plan, it shows 6 plots and the suit property exists. According to him, they discovered that the suit property had irregularities in the year 2017 and that the county issued notices to the occupier but he did not have a copy of the minutes. He agreed that Zoning Plans are subject to change and that when making the plans, the sources for data are ground truthing and previous existing plans. He said that a previous plan does not exist once a new plan is developed and the previous plan is used as a reference but that there is one main plan. He went on to say in his evidence in cross examination that in the plan prepared by Ositima, the planers inserted the roads. DW2 testified that a person cannot present a building plan for an area that is reserved for public use. He agreed that the department is the custodian of the plans but that he did not provide the court with the original plans. He added that an enforcement notice is provided for in the Physical Planning and Land use plan schedule 3 which describes the offence committed by a developer. He agreed that they did not provide an enforcement notice before carrying out the demolition.

40. On re-examination, DW2 testified that the document that he produced is a Land Use Plan and it does not have plot numbers. Further, that the plan cannot show a particular plot as they are presented as diagrams. He testified that the plan was developed in the year 2016 and it reflects what was on the ground as at 2016. He said that as at 2016 the suit property had not been demolished and the plan cannot confirm the basis of the existence of a plot. He agreed that a plan can differ from another one and some aspects like roads that have been encroached can be removed. He testified that he was not served with any notice to produce original documents and that he is able to verify the plans that they have produced.

41. On the 5th October, 2023 the defendants filed their written submissions dated 3rd October, 2023 where they raised three issues for determination as listed below: -a.Whether the suit property was available for allocation.b.Whether the demolition of the suit property was justified; andc.Whether the plaintiff is entitled to the prayers sought.

42. On the first issue, the defendants submitted that the suit property was designated as a road reserve and the purported allocation to the plaintiff was illegal and unlawful as the land was not available for allocation. The defendants relied on the cases of Dina Management Limited versus County Government of Mombasa & 5 Others [2021] eKLR, Muthaiga North Residents Association versus Nyari House Limited;National Land Commission & Another (Interested Parties) (Environment & Land Petition 115 of 2015) [2022] KEELC 2578 (KLR), Republic versus Land Registrar Kilifi & Another Ex-parte Daniel Ricci [2013] eKLR and Adan Abdirahani Hassan & 2 Others versus Registrar of Titles, Ministry of Lands & 2 Others [2013] eKLR.

43. The defendants further submitted that during the site visit, it was apparent that the suit property was not surveyed and if at all it was allocated to the plaintiff, the other plots behind it would have no access road to serve them. They submitted that the suit property is an unsurveyed plot with no survey plan nor a deed plan.

44. The defendants further submitted that the suit property does not appear in the Part Development Plans for the years 1966 to1978 but appeared for the first time in the Government Plan dated 30th June, 1985 and the circumstances in which it so appeared remain murky. The defendants went on to submit that the letter of allotment dated 1st August, 1978 is questionable and cannot suffice to show that the plaintiff was legally and properly allocated the suit property. They submitted that a letter of allotment is not a title to land and it is merely an offer which may or may not result in title to land. The defendants relied on the cases of Torino Enterprises Limited versus Honourable Attorney General [2023] eKLR, Wreck Motors Enterprises versus Commissioner of Lands & 3 Others [1997] eKLR, Dr. Joseph Arap Ng’ok versus Justice Moijo Ole Keiyua & 4 Others C. A 60 of 1997 and Bubaki Investment Company Limited versus National Land Commission & 2 Others [2015] eKLR.

45. The defendants further submitted that it could not have been the intention of the Narok County Council to allocate the plaintiff a plot which extends to the middle yellow line of the road and block access of other plots to the Narok-Mai Mahiu road and, it is therefore important to probe the access of allocation of the suit property and ascertain whether it was available for allocation. To buttress this submission, the defendants relied on the cases of Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the estate of Mohmaed Haji Dagane) versus Hakar Abshi & 3 Others [2021] eKLR and Philma Farm Produce & Supplies & 4 Others versus The Attorney General & 6 Others [2012] eKLR.

46. On the second issue, the defendants submitted that the County Government is vested with the mandate to protect public land and to safeguard the interest of the public by way of repossessing illegally acquired land or grabbed public land in order to protect and preserve the interests of the public. That in this case, the defendants were acting within their mandate provided under Article 62 (2) of the Constitution by safeguarding the suit property which was and remains to be public land that was meant for a public utility. The defendants relied on the cases of John Peter Mureithi & 2 Others versus Attorney General & 4 Others [2006] eKLR and Elizabeth Wambui Githinji & 29 Others versus Kenya Urban Roads Authority & 4 Others [2019] eKLR.

47. On the third issue, the defendants submitted that the reliefs sought are not legally tenable as the process leading to the allotment of the suit property was flawed. They went on to submit that there are material contradictions with respect to the stated value of the suit property and the improvements thereon. Further, that there was variance in the plaint and the valuation report. Reliance was placed in the cases of Kenya Airways Limited versus Satwant Singh Flora [2013] eKLR, Peter Ouma Omolo & Another versus Awendo Town Council [2011] eKLR, Ruxley Electronics & Construction Limited versus Forsyth (1995) 3 All ER 268 and Veronica Njeri Waweru & 4 Others versus City Council of Nairobi & 2 Others [2012] eKLR.

48. By the time of writing this Judgement, the plaintiff had not filed his written submissions. Be that as it may, I have considered the pleadings, the evidence on record and the written submissions filed by the defendants and I will proceed to determine the issues as raised by the defendants.

49. It was the plaintiff’s case that he applied for allocation of the suit property on 1st August, 1978 and his case was keenly assessed by the Allocation of Plots Committee after which he was allocated the said parcel of land pursuant to the laid down requirements and procedures governed by the then Local Government Act (now repealed) without inhibition. I have looked at the said minutes with the heading ‘Plot Allocation Committee Minutes Meeting held on 20th July, 1978 in The District Commissioner’s Office’. The plaintiff’s name does not appear under the said minute no. 27/78 and neither does it appear anywhere else in the document. If at all the plaintiff was honest, he would have supplied a copy of the said application which he made to the Plot Allocations Committee and any prior minutes going by the claim that the minute no. 27/78 was a corrigenda and/ or addendum. There is nothing to show that indeed the plaintiff was allocated the suit property.

50. The defendants produced copies of the Part Development Plans for the years 1966, 1969,1976 and 2015. A look at the Part Developments Plans D. Exhibit nos. 2 and 3 show that where the suit property is situate is a road reserve. Interestingly, in the Part Development Plan for the year 2015, the suit property appears in the said plan.

51. The process of allocation of government land was restated in the case of Nelson Kazungu Chai & 9 Others versus Pwani University College [2014] eKLR. where the court held as follows:“130. It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister of Lands before any unalienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved Part Development Plan is then issued to the allottee.131. It is only after the issuance of the letter of allotment, and the compliance of the terms therein, that a cadastral survey can be conducted for the purpose of issuance of a Certificate of Lease. This procedural survey was confirmed by the Surveyor, PW3. The process was also reinstated in the case of African Line Transport Company Limited vs. The Hon. Attorney General, Mombasa HCCC No. 276 of 2013. “Secondly, all the defence witnesses were unanimous that in the normal course of events, planning comes first, then surveying follows. A letter of allotment is invariably accompanied by a PDP with a definite number. These are then taken to the department of survey, who undertake the surveying. Once the surveying is complete, it is then referred to the Director of Surveys for authentication and approval. Thereafter, a land reference number is issued in respect of the plot.”

52. In the instant case, there is no evidence that the plaintiff’s application for allocation of land, if any, was considered. It follows therefore that his claim to the suit property is unfounded and that the suit property does not exist. The plaintiff and his witnesses were also mute on how the suit property came to be in the Zoning Plan of the year 2015. The plaintiff did not dispute the Part Development Plans for the years 1966,1969 and 1976.

53. Having found that the plaintiff is not the registered owner of the suit property, I see no need to proceed to determine the other issues. Based on the above, I am persuaded that on a balance of probabilities, the suit property does not exist and in that case the plaintiff is not entitled to the reliefs sought. As such, the plaint dated 9th January, 2018 is dismissed. Each party to bear its own costs. It is so ordered.

DATED, SIGNED & DELIVERED VIA EMAIL ON THIS 7TH DAY OF NOVEMBER, 2023. HON. MBOGO C.G.JUDGE7/11/2023. In the presence of:CA:Meyoki