[2018] KEELC 4618 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT NAIROBI

ELC CIVIL SUIT NO. 3 OF 2012

STEVENSON NGATIA..................................................PLAINTIFF

VERSUS

CLEMENT KAMAU GITAU.......................................DEFENDANT

JUDGEMENT

1. The Plaintiff filed suit seeking to evict the Defendant or his agents from the parcel of land known as L.R. No. 13330/403 formerly known as Plot number 491 (“the Suit Property”). He also seeks a permanent injunction to restrain the Defendant from developing or trespassing on the Suit Property as well as damages for loss of user and trespass and the costs of the suit.

2. The Plaintiff claims he is the owner of the Suit Property situated at Thome Estate, off Thika Road and that he enjoyed uninterrupted occupation until March 1999 when the Defendant trespassed on the suit land.

3. The Defendant pleads in his Defence and Counterclaim that he is the lawful owner of the Suit Property having purchased it from the original allottees. He claims to have been in occupation from 1983. He counterclaims a permanent injunction to restrain the Plaintiff from interfering with his occupation of the suit land and a declaration that he is the lawful owner of the Suit Property.

4. While this suit was pending, the Plaintiff obtained the title over the Suit Property. The Defendant seeks to have the certificate of title issued to the Plaintiff cancelled and that he be registered as the owner of the Suit Property.

5. This case was heard by Muchelule J. on 1/7/2010 and 28/10/2010. Thereafter the hearing proceeded further before Onguto J. in 2014 and was concluded on 10/4/2015. The court gave directions that the proceedings would be typed; parties would file their submissions and I would deliver the judgement.

6. The main dispute revolves around who is the rightful owner of the Suit Property. The Plaintiff testified that he balloted for the plot in 1980. He stated that balloting started in 1975. He balloted for plot numbers 491 and 492 and later paid the survey fees for the two plots. He was given share certificate number 749 dated 29/7/1979 in respect of 2 shares. The Plaintiff knows the Defendant well.

7. He discovered in 1994 that the Defendant had trespassed onto his land claiming that it had been sold to him by some two ladies. It was his evidence that the Defendant was allotted plot number 32 through entry numbers 295 and 673 by Thome 5 Farmers Limited. He produced the letter written by Thome 5 Farmers Company dated 10/9/1999 confirming that he bought plot numbers 491 and 492. The Plaintiff testified that he bought the plots in 1977 after buying shares in Thome 5 Farmers Limited. He confirmed that plots used to be allocated to members by the Company through balloting after one had made payments for the plots. It was his evidence that he balloted for one plot and was given the next plot since he had paid for the 2 plots. It was his evidence that he did not need to ballot twice.

8. Initially he had balloted for plot number 021, but on visiting the land he was not happy with it since it was on a swampy area. He therefore requested the Company to allow him ballot for a different plot. That was the basis for the cancellation of his initial ballot.

9. He explained that after balloting for 021 he was to get the next plot which is 022. He claims that on re-balloting, he picked plot number 491 even though he did not produce the ballot. What he presented in evidence had plot number 492 and ballot number 021 indicated on it. It was his evidence that he surrendered ballot number 021 and 022. On cross examination he maintained that the cancellation was done by officials of Thome 5 Company Limited and asserted that the receipt for survey fees and his share certificate were never cancelled.

10. He produced evidence showing he made payments in 1975 and 1977 for shares in Thome Limited. The cancellations on ballot paper were done in 1979. He explained that cancellation did not mean the document was extinguished; but it was intended to avoid having the same document used by someone else.

11. The Plaintiff produced copies of the receipts issued by Thome Farmers 5 Limited on account of survey fees in which the plot numbers are altered from 021 and 022 to 492 and 491. The cancellation is also effected on the receipts produced by the Plaintiff dated 24/1/1977 and 1/7/1975. The Plaintiff produced share certificate number 749 issued in respect of entry number 435 certifying that he is the proprietor of two shares. The share certificate was issued on 29/7/1979.

12. He claims that he discovered the Defendant was trespassing when the Defendant planted Napier grass on the suit land. He approached the Defendant and requested him to uproot the Napier grass but the Defendant persisted in the trespass and built a store and started putting up a foundation for a house on the Suit Property. The Plaintiff claims to have uprooted the Napier grass and in its place planted bananas on the land. He claims the Defendant brought police officers to harass him and he at some point left a notice on the land addressed to the plot grabber. He stated that he was informed by neighbours that the Defendant constructed on the land on a Sunday.

13. Parties arranged a meeting in 1998 together with their wives to discuss the issue of the plot. They met the two ladies who the Defendant claimed had sold the Suit Property to him.

The Plaintiff maintained that he still owns and works on plot number 492 which was allocated to him alongside plot number 491. The Plaintiff also produced a letter dated 10/9/1999 which confirms that plot number 491 and 492 belonged to the Plaintiff while the Defendant and his wife held plot number 32 according to the company’s records.

14. On 15/10/2014 the Plaintiff informed the court that he had obtained title for the land which is L.R. No. 12330/403 I.R. No. 134257. He produced a certified copy of the title. He further testified that he later learnt that the actual owner of the suit land was Joreth Limited. He was advised by Thome 5 Farmers Limited to pay Joreth Limited so that they could process his title.

15. The Plaintiff learnt from the newspapers that the plots were to be paid for afresh to Joreth Limited following the filing of Civil Case HCC No. 6206 of 1992 in which a consent was recorded for parties to pay Kshs. 200,000/= for each plot to Joreth Limited and get a title. The money was to be paid through Kimani Kahiro & Company Advocates. This firm of Advocates later fell out with Joreth Limited who in turn appointed Wainaina Ireri Advocates to conclude the processing of the titles. The Plaintiff denies that he acted fraudulently by processing the title over the Suit Property during the pendency of the suit.

16. The Defendant gave evidence in the matter. He is a businessman and resides at Thindigwa and knows the Plaintiff who is his neighbour. He stated that he first entered the plot in 1983 when the original co-owners Margaret Njeri Mwaura and Anne Wambui Kaguru, allowed him to cultivate Napier grass on it. Margaret Njeri Mwaura sold him her share in the plot for Kshs. 45,000/= in 1998. He then went to Githunguri to the offices of Thome 5 Farmers Limited to have the portion transferred to his wife. He paid the transfer fees and was issued share certificate number 874 on 25/7/1998 by Thome 5 Farmers Limited showing his wife and Anne Wambui Kaguru were the new owners. He claimed to have fenced the plot and planted trees on it.

17. In 1994, Anne Wambui sold her portion to the Defendant for Kshs. 295,000/=. The Defendant was then issued with share certificate number 1432. He stated that nobody ever came to claim the Suit Property prior to 1998. He later learnt that somebody had uprooted his fence and reported to the police who arrested the Plaintiff’s wife.

18. The Defendant stated that after this suit was filed the court issued injunctive orders stopping him from dealing with the suit land and that he obeyed the court orders. The Plaintiff later took possession and cultivated the Suit Property.

19. The Defendant has another plot at Thome. It was his evidence that if one had paid for 3 plots they had to pick 3 ballot papers and that each ballot had a plot number. It was also his evidence that receipts issued by Thome Company were never cancelled and if they were then the purchase price was refunded and the plots repossessed by the company. Unfortunately, no witness from Thome Farmers Company Limited was called to corroborate this assertion.

20. The Defendant confirmed he had obtained his title for the other plot that he owns in the same area. He confirmed that one would go to Joreth Limited and pay Kshs. 200,000/= together with survey fees after which his title would be processed by Joreth Limited. He urged the court to cancel the Plaintiff’s title.

21. The Defendant called Margaret Njeri Mwaura, one of the ladies who sold him the Suit Property to testify in court. It was her evidence that she applied for a plot at Githunguri and was told to pay Kshs. 15,000/=. Since she was only able to raise Kshs. 5,000/=, she was allowed to get a partner who had raised 5,000/=. They then paid the balance of Kshs. 5,000/=. She stated that she balloted and recalls the plot number on the ballot she picked was 491. After balloting she was shown the plot. She testified that she sold her share to the Defendant to raise fees to send her son to Kiambu High School. She confirmed that she knew her partner, who later died, later sold her portion to the Defendant. On cross examination she stated that she could not remember when she became a member of Thome Farmers 5 Company Limited and could also not remember her share certificate number. She could only remember queuing and balloting for the plot.

22. It would have been helpful if an official from Thome Farmers 5 Company Limited had testified in court on how balloting was done and if alterations were could be made on ballot papers. They would also have produced a register showing which plots were allocated to the Plaintiff and Defendant. Neither party called a witness from the Company to give evidence.

23. The Defendant produced a copy of the undated agreement in respect of the sale of plot number 491 registered under certificate number 035 showing entry number 295 and 673. In the agreement, Margaret Njeri Mwaura states that she surrendered her certificate to the Defendant and his wife on 22/7/1988 and that she was paid the sum of Kshs. 45,000/=. The Defendant did not produce a copy of certificate number 035. Instead, he produced a copy of certificate number 874 issued to his wife and Anne Wambui Kaguru on 25/7/1998. He also produced a copy of the receipt issued by Thome Farmers 5 Limited on 25/7/1998 on which the number is altered from 65 to 61 in respect of the quarter share being transferred.

24. The memorandum of agreement dated 28/6/1994 showing the sale of the second portion from Anne Wambui Kaguru to the Defendant was also produced in evidence together with share certificate number 1432 which Thome Farmers 5 Limited issued to him and his wife on 8/8/1994. Both share certificates do not bear the plot number but they reflect entry numbers 295 and 673. The Defendant also produced receipts dated 29/5/1975 issued to Wambui Mbugua Muiru and ballot entry number 176 in respect of plot number 504.

25. A copy of the register of Thome Farmers 5 Limited was marked MF18 but was never produced in evidence. The court has looked at a copy of the register and notes that the Plaintiff is indicated to own plot number 491 and 492 based on entry number 435 while Anne Wambui Kaguru and Njeri Mwaura owned plot number 32 pursuant to entry numbers 295 and 673. The two names were later crossed out and replaced by Clement Kamau Gitau and Cecilia Waithera Kamau.

26. The court notes that plot number 491 was not indicated on the receipt on account of the transfer fees paid when the Defendant and his wife bought the plot from the two ladies separately.

27. It was the evidence of both parties that it was only through balloting that one would get a plot allocated to them after they had paid for it. Each member was issued with a share certificate which bore an entry number.

28. Apart from the sale agreements which the Defendant entered into with the two ladies who sold their interest to him, there was no evidence that these two ladies previously owned plot number 491. Margaret did not produce the ballot which she claims she picked that would entitle her to plot number 491.

29. The memorandum of agreement dated 28/6/1994 states that plot number 491 held under share certificate number 874 was being transferred. The court notes that this is the certificate issued to Anne Kaguru and Cecilia Kamau on 25/7/1998. No evidence of the prior share certificate issued to Margaret and Anne Kaguru was produced in court.

30. The Plaintiff produced a copy of the receipt that Thome Farmers 5 Limited issued to him when he paid the entrance fee of Kshs. 100/=. The date is not clear but the number is reflected as 435 which is the entry number indicated on his share certificate issued in 1979. The Defendant did not produce copies of the receipts issued to Margaret Mwaura and Anne Kaguru in respect of the payment of their entry fees.

31. There is a copy of an undated document which the Defendant produced as the ballot paper that was issued to Margaret Njeri Mwaura for plot number 491. The court is not satisfied that this was the ballot paper issued to Margaret. The court notes that the words “commissioner for oaths/notary public” are endorsed on this document.

32. The Defendant has failed to demonstrate how plot number 491 was allocated to Margaret Njeri Mwaura and Anne Kaguru who he claims sold the plot to him. The court prefers the evidence of the Plaintiff whose share certificates confirms he had bought two plots and who also testified that he is in occupation of plot number 492.

33. The defence did not call any evidence to show that the cancellation on the Plaintiff’s receipts confirmed that the company had refunded the money he paid for the purchase of the two plots. The court is inclined to believe the letter from Thome Farmers 5 Limited confirming that the Plaintiff was allocated plot number 491 while the Defendant purchased plot number 32 from Anne Kaguru and Margaret Mwaura.

34. The Defendant ought to have pursued this case with Joreth Limited after learning that ownership of the plots had passed to Joreth Limited. The Defendant confirmed that he processed his titles for his other plots through Joreth Limited.

35. The court finds that the Defendant has failed to prove his counterclaim on a balance of probabilities and it is dismissed with costs to the Plaintiff.

36. The court enters judgement for the Plaintiff as prayed in the Amended Plaint. The Plaintiff having been in occupation of the Suit Property from the time the court gave him interlocutory orders; and having processed title over the Suit Property, the court declines to award the Plaintiff damages for loss of user and trespass. The Plaintiff will have the costs of the suit.

Dated and delivered at Nairobi this 25th day of January 2018.

K. BOR

JUDGE

In the presence of: -

Mr. Kimani holding brief for the Defendant

No appearance for the Plaintiff

Mr. J. Okumu- Court Assistant