[2017] KEHC 9539 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENT AND LAND COURT AT MERU

ELC CASE NO. 316 OF 2007

STEPHEN MUGO MUCHEMI............................................PLAINTIFF

VERSUS

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

GEOFFREY KAMAU AYUB....................................2ND DEFENDANT

JOSHUA WAMUGO WAMAE...............................3RD DEFENDANT

SALIM MURIGU MBUGUA.....................................4TH DEFENDANT

JUDGMENT

BACKGROUND

Plaintiff acquired a Plot No. A219 Section II Umoja Inner core sometime in February, 1991 via a Deed of Assignment between him and one Francis Wakahiu and the then Nairobi City Council (1st defendant). The plot was apparently repossessed by 1st defendant sometime in October 1994, and the same was assigned to 2nd defendant who in turn sold the same to 4th defendant who in turn sold the plot to 3rd defendant.

Plaintiff avers that the subsequent allotment of the plot from him to other persons is illegal and unjustifiable.

PLEADINGS

The initial plaint was dated 18/8/00 but was amended on 23/1/01. Plaintiff’s claim is for:

a) A declaration that the plaintiff is still the sole owner of the piece of land known as Plot No. A219 Sector II Umoja Innercore.

b) A declaration that the purported allotment of Plot No. A219 Sector II Umoja Inner Core to the 2nd defendant and subsequent sale of the same by the 2nd defendant to the 4th defendant and the further sale by the 4th defendant to the 3rd defendant was unlawful and therefore null and void.

c) An order for an injunction restraining the third defendant his agents or servants from ever entering or trespassing upon the said plot or putting a building thereon.

d) Costs of the suit.

The 1st defendant filed his Memorandum of Appearance on 28/2/06 and defence on 14/2/06. The documents were filed after close of pleadings. No party addressed the court on this issue and I will therefore accept the pleadings as having been properly filed.

The 1st defendant admits having repossessed the suit land but avers that the repossession was lawful and valid as plaintiff had failed to comply with the terms and conditions set out in the allotment document.

The 2nd defendant has never entered appearance. However, a perusal of the record indicate that there is a document titled “MEMORANDUM OF DEFENCE” filed on 11/9/02 by 2nd defendant. In it, he states that he was allocated the plot and he then sold the same to Salim Murigi Mbugua, 4th defendant. 2nd defendant, has never participated in the trial.

The 3rd defendant entered appearance on 20/6/01and his statement of defence is dated 6/7/01, where he has a counterclaim. He avers that he is the Registered Proprietor of Plot No. A219 having bought the same lawfully from 4th defendant. His prayers in the counter claim are for:

- An order for injunction restraining the plaintiff either by himself or his servants or agents from entering or trespassing on plot No. A219 Section II Umoja Inner core.

The 4th defendant, one Salim Mbugua filed his defence statement on 10/5/01. However, by the time of the trial, the court was told that he had died. No substitution was ever done. The case as against 4th defendant therefore stands as dismissed.

PLAINTIFF’S CASE

When the matter proceeded on 20/3/17, plaintiff, 1st defendant and 3rd defendant were all represented.

Plaintiff’s case is that on 26/2/1991, he bought the suit land from one Francis Wakahiu at a price of Shs.150, 000. Wakahiu had cleared all arrears. He further states that by that time, the City Council of Nairobi had suspended developments. While waiting for the notification of resumption of developments, he noticed that someone had come on the property and was starting to develop the same. Efforts to stop him were futile. He learnt that the name of the trespasser was Joshua Wamugo Wamae, who had apparently bought the plot from Salim Mbugua.

Plaintiff also learnt that the plot had been repossessed by Nairobi City Council from Francis Wakahiu Theuri notwithstanding that the plot was still in plaintiff’s name. Plaintiff avers that he was never issued with a notice of repossession. 3rd defendant has since obtained the certificate of lease. Plaintiff therefore prays for reversion of the ownership of the property to him after cancellation of the title to the 3rd defendant.

In support of his case, plaintiff produced the following documents as exhibits:

1) Assignment from Nairobi City Council dated 26/2/91.

2) Receipts in respect of the aforementioned payment.

3) A Memo from Conveyancing Department of the city council showing the plot had changed hands from Francis Wakahiu to plaintiff.

CASE FOR 1ST DEFENDANT

1st Defendant averred that they would not call any witness but they would file submissions.

CASE FOR 3RD DEFENDANT

DW1, one Joshua Wamugo Wamae testified and also adopted his statement filed on 29/7/13 as his evidence in chief. He states that in year 1999, he was looking for a plot to purchase and put up a building for commercial purposes in Umoja. He then identified the suit land which was owned by Salim Murigo Mbugua (now deceased), who in turn had bought the plot from Geoffrey Kamau Ayub,the 2nd defendant. He also learnt that the said Geoffrey had been allocated the Plot by Nairobi City Council after the Nairobi City Council repossessed the same from the Plaintiff for failure to pay requisite charges.

3rd defendant avers that when he bought the plot, the title deed had not been issued and the property was identified as plot number A219 Umoja Innercore Sector 11. He paid a sum of Kshs. Five Hundred and Thirty Five Thousand (Kshs. 535,000) vide an agreement of sale dated 28/2/00 as the entire purchase price to 4th defendant.

4th defendant then assigned all his rights in the plot to 3rd defendant to enable the latter to acquire a title deed. The deed of assignment was prepared, signed and on 27th December 2000, the suit property effectively belonged to 3rd defendant. 3rd defendant was subsequently issued with a lease certificate (see exhibit 18).

3rd defendant avers that he began to develop the plot but a Court Order obtained by the Plaintiff on 30th August, 2000 halted the process. He avers that all these years, he has unjustifiably been kept out of possession of the suit land and he cannot utilize the property economically as he had intended.

He prays that the Plaintiff’s suit be dismissed with costs to him.

In support of his case, 3rd defendant produced as exhibits the documents in his list dated 26/7/13 as exhibits No.1-18. These documents are:

1) Minutes from the department of Housing Development in the City Council of Nairobi dated 27th October, 1994.

2) Letter of Allocation dated 11th November, 1994.

3) Beacon Certificate dated 18th January, 1995

4) Letter by City Council of Nairobi dated 21st September 1999.

5) Receipt serial number 463600 and dated 18th January, 1995 for Kshs.66,400

6) Receipt CT/608 for Kshs.3,200 dated 22/9/99

7) Receipt ct/608 for Kshs. 3,610 dated 22/9/99

8) Receipts dated 21/9/99 for Kshs.3,200 and Kshs.3,610

9) Sale agreement dated 22nd September, 1999.

10) Acknowledgment of payment dated 22/9/99

11) Sale Agreement dated28/2/2000

12) Acknowledgment of payment dated 28/2/2000

13) Receipt serial number 643469 dated 10/2/2000 for Kshs.1,360

14) Receipt serial number 576359 dated 21/9/00 for Kshs. 3,230

15) Deed of Assignment dated 27th December 2000

15) Receipt No.982 of Kshs.12, 816 issued by Musyoka – Annan & Co. Advocates

16) Lease for title No. Nairobi/Umoja Block 83/14/36 registered on 7th May 2001

17) Certificate of Lease for Nairobi/Umoja Block 83/14/36.

ANALYSIS AND DETERMINATION

I have considered all the arguments advanced by the plaintiff, 1st defendant and 3rd defendant, including their submissions. What emerges as the issue for determination is;

“WHO IS THE LEGAL OWNER OF THE SUIT LAND, PLAINTIFF OR THE 3RD DEFENDANT?”

To answer this question, the court has to determine the following;

i) What is the nature and extent of interest in the suit land that is or was held by plaintiff on one hand and defendant on the other hand?

ii) ii) Whether the Repossession of the plot was unlawful.

The Nature and Extent of the interest in the suit land.

Plaintiff bought the plot from one Francis Wakahiu. Plaintiffs claim is anchored on the document he produced as Exhibit 1, the deed of assignment which reads;

“the Assignor assigns and the Assignee accepts all the benefits contained in all that piece of land………………the commission has agreed to enter into these presents SUBJECT to the Assignee Performing and observing all the conditions caveats and stipulations contained in the said Agreement which shall be part and parcel of these presents and that this agreement shall be read and construed as supplement to the said Agreement”.

What this means is that plaintiff was supposed to comply with the terms and conditions set out in the deed of Assignment. During cross examination he stated that he was required to pay rates and rent but that he never paid because the development on the property had been put on hold. However, plaintiff did not have any evidence to support this claim. There was nothing to indicate that developments had been put on hold or that rates and rent payment had been suspended. The plaintiff is therefore the one who failed to meet the conditions set out in the agreement.

While dealing with the issue of land rights in respect of allotment, the court in AhmedObo versus Kenya Airport Authority ELC Case No. 141 of 2013, stated that;

“The Plaintiff has not stated if he met the conditions in the letter of allotment dated 24th September 1998 which was an offer by the Government for land measuring 13. 64 Ha. In the absence of evidence by the Plaintiff that he accepted the offer by paying the amount of money stipulated in the letter of offer, the Plaintiff cannot claim to have any proprietary rights over Plot “A” Manda that can be protected by the Constitution. The Constitution only protects existing rights”.

In the case of Philma Farm Produce & supplies & 4 others Vs. Attorney General & 6 Others (2012) eKLR, it was stated as follows;

“The Petitioners claim is grounded on two letters of allocation of the suit properties. These letters do not confer a proprietary right but only a right to receive property or to be allocated property on complying with the terms and conditions stated there in. The right to be allocated a property is a contractual right, and must be determined in accordance with the ordinary rules of contract”.

And in John Mukora Wachichi & Others versus Minister of Lands & Others High Court Petition No. 82 of 2010, it was stated;

“… the court observed that the distinction is based on the fact that the right to property under the law and Constitution is afforded to the registered owners of land, that a letter of allotment is not proof of title as it is only a step in the process of allocation of land.”

The upshot of this is that plaintiff’s interests in the suit land did not crystalize into rights of proprietorship that can be accorded protection by the law.

On the other hand 3rd defendant has a certificate of lease under the Registered Lands Act (now repealed), in respect of the suit land. As rightly submitted by the 3rd defendant, the transfer of the land to 3rd defendant was completed by registration of the transferee as proprietor of the land , lease or charge pursuant to section 85(2) of the Registered Lands Act and . Thus 3rd defendant acquired the absolute rights of proprietorship in the suit land in accordance with the provisions of section 27 of the aforementioned act. The nature and extent of 3rd defendant’s interests in the suit land have crystallized into rights of proprietorship capable of being protected by the law.

Was the repossession of the suit land unlawful?

Plaintiff has stated that he was never issued with a notice and that the same was issued to Francis Wakahiu (the previous owner).

However, in his testimony plaintiff stated that: “I came to learn that notice was given in 1993 via Kenya Times. But for me, I never saw the Advert”.The documents relied on by the plaintiff are the Deed of Assignment, 3 receipts and a Memo dated 26/2/91. There is no document to support the claim of how Notice was issued.

I hence disregard the document containing information on repossession which was annexed to plaintiff’s submissions. However, even if the notice had actually been sent to Francis Wakahiu and not plaintiff, the fact remains that the terms and conditions set in the deed of assignment had not been met.

I therefore find that the repossession of the plot was not unlawful.

CONCLUSION.

The record of the court indicates that plaintiff had moved the court via an application of 18/8/2000 to have 3rd defendant restrained from trespassing or entering the suit land. The injunctive orders were granted on 30 August 2000 and were not discharged until 13 years later on 4th June 2013. As at now, there are no injunctive orders in place.

I find that Plaintiff has not proved his claim on a balance of probability. The 3rd defendant’s counterclaim succeeds.

I therefore proceed to give orders as follows;

1) Plaintiff’s claim is hereby dismissed with costs to 1st and 3rd defendants.

2) It is hereby declared that the 3rd defendant is the rightful owner of the suit plot No. A219 Section 11 Umoja inner core.

3) An order for injunction is hereby issued restraining the plaintiff either by himself or his servants or agents from entering or trespassing on plot No. A219 Section 11 Umoja Inner Core.

DATED SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2017

HON. L. N. MBUGUA

ELC JUDGE

IN THE PRESENCE OF:-

1. Aswani H/B for Kiaria Njau for Plaintiff

2. Mumia H/B for Nyaanga for 3RD Defendant

3. Oonge for 1st Defendant