[2025] KEELC 263 (KLR)

Tight Solutions Limited v Kidege Investment Limited & 4 others (Environment and Land Constitutional Petition 24 of 2022) [2025] KEELC 263 (KLR) (29 January 2025) (Judgment)

Neutral citation: [2025] KEELC 263 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment and Land Constitutional Petition 24 of 2022

EK Makori, J

January 29, 2025

IN THE MATTER OF: ARTICLES 19, 20, 21, 22, 23, AND 25(1) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE ALLEGED CONTRAVENTION OF ARTICLES 162(2) (b) OF THE CONSTITUTION OF KENYA, 2010 AND IN THE MATTER OF: THE ALLEGED CONTRAVENTIONS OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 40 OF THE CONSTITUTION OF KENYA 2010 AND IN THE MATTER OF: FURTHER CONTRAVENTION OF FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 60(1) (b) AND 64 OF THE CONSTITUTION 2010 AND IN THE MATTER OF: THE CONSTITUTION OF KENYA (SUPERVISORY JURISDICTION AND PROTECTION OF FUNDAMENTAL RIGHTS AND FREEDOMS OF INDIVIDUALS), HIGH COURT PRACTICE AND PROCEDURE RULES 2006 IN THE MATTER OF: PLOT TITLE CR. NO. 30506 LAMU PORTION 3 - MANDA

Between

Tight Solutions Limited

Petitioner

and

Kidege Investment Limited

1st Respondent

Chief Land Registrar

2nd Respondent

Senior Registrar of Titles, Mombasa

3rd Respondent

Director of Surveys

4th Respondent

The Attorney General

5th Respondent

Judgment

1. Tight Solutions Limited, the Petitioner herein, commenced these proceedings vide a petition dated 31st October 2022 supported by the affidavit of Nassir Mohammed Omar, deposed on 31st October 2022.

2. Significantly, the Petitioner prays for the following orders:a.A declaration that the Petitioner is the sole registered owner of the suit property situate in Kitau Manda Island known as Land Reference Number CR NO. 30506 Portion Number 3, delineated on Land Survey Plan Number 173947. b.A declaration that the purported allocation of the suit property land situated in Land Reference Number CR NO. 45039 Portion Number 3, delineated on Land Survey Plan Number 173947 to the 1st Respondents by the 2nd to 4th Respondents, is irregular, unlawful, null and void, and of no legal effectc.A declaration that any steps taken by either the 2nd, 3rd, and 4th Respondents, individually or jointly, to demarcate, prepare Part Development Plans, Survey Deed Plans, and or issue any subsequent Titles over any portion or part of the land comprised in Kitau Manda Island, Land Reference Number Portion Number 3, C.R. NO 30506/1, and delineated on Survey Deed Plan Number 173947, registered in the name of the Petitioner are actions contrary to the law and the Constitution and a nullity, incapable of depriving the Petitioner of its ownership and rights over the said property, and that all such unlawfully acquired documents including any Titles issued pursuant thereto, be canceled forthwith:d.Pending the hearing and determination of the Petition, a conservatory order be issued for the purposes of preserving the Petitioner’s property known as Kitau Manda Island, Land Reference Number Portion Number 3, C.R. NO 30506/1, delineated on the Land Survey Plan Number 173947, to preserve the same from being interfered with by either demarcation, being surveyed, and or having the same allocated to either the 1st Respondents or to any other third partiese.A permanent injunction be issued to restrain all the Respondents, their servants’ agents, and or employees from surveying, demarcating, or allocating, and or in any other manner whatsoever, alienating the Petitioner’s property known as Kitau Manda Island, Land Reference Number Portion Number 3, C.R. NO. 30506/1 delineated on Survey Deed Plan Number 173947, either to the 1ST Respondents herein or to any other person(s) or legal entities of whatever nature, in violation of the Petitioner's rights of ownership of the said property.f.An order be issued, pursuant to the provisions of Article 35 of the Constitution, to direct the 2nd to the 4th Respondents to supply the Petitioner all documents in their possession, namely, part Developments Plans, Survey Deed Plans, any Certificates of Title in the process of being prepared, and any other such documents that are aimed at demarcating, subdividing, and allocating the Petitioner’s Property known as Kitau Manda Island, Land Reference Number 3, C.R. NO 30506/1, and delineated on Land Survey Number 173947, to either the 1st & 2nd Respondents or to other third parties, to enable the Petitioner take the necessary legal steps in protecting the ownership and rights over its property aforesaidg.The costs of this Petition and all proceedings therefrom be borne by the Respondents.

3. The 1st Respondent opposes this petition through the replying affidavits sworn by Mohamed Madhbuti on 2nd March 2023 and 5th July 2024 and by one Richard Otara, deposed on 20th May 2023.

4. The 2nd, 3rd, and 4th Respondents, in response to this petition, filed replying affidavits sworn by E. Wafula for the 2nd Respondent as well as one by Sheila N. Soita for the 3rd Respondent, dated 13th June 2023 and 9th May 2023 respectively.

5. The Petition was canvassed further by written submissions as directed by this Court.

6. Considering the materials and submissions placed before me, I frame the following issues for this court's determination: whether the Petition herein is time-barred, who is the rightfully registered owner of the suit property, whether the prayers sought in the petition can be granted, and who is to bear the costs.

7. A Preliminary Objection was raised earlier that the petition herein is, among others, time-barred. After considering the submissions from the warring sides, this Court, on the 20th day of March 2024, made a finding in paragraph 16 of the Ruling as follows:“The petitioner /respondent has not explained why, since the discovery of the irregular allocations or overlap happened in 2010, no suit was brought. A blank cheque cannot be accorded to the respondent, but then again, the Court reckoned that from the thread of authorities from this Court and the Superior ones above, the issues complained against that there were irregular allocations after the petitioner had acquired the same land in question, considering this case on its circumstances, it can be addressed by the production of the relevant official documents from the land offices to explain the complaint raised herein as to who between the petitioner and the 1st respondent has a genuine and ‘real title.’ This will also go hand in hand with the position as to whether the claim herein ought to have been commenced as a plaint. I cannot discern that the issues raised can only exclusively be addressed through a plaint, that is based on the materials I have so far. A hearing will be necessary in the circumstances to avoid stealing a march against the respondent in the current application. Courts are more concerned with sustaining suits than dismissals and doing substantial justice at the end. This is not to say that I have suspended the Statute of Limitations. Not at all, the issue can still be reckoned at the hearing hereof.”

8. After considering the materials and submissions placed before me, the main issue at the heart of this petition and as reckoned by my Ruling aforesaid is who, between the Petitioner and the 1st Respondent - has the ‘real title’ in this matter, given the double allocation disclosed in this petition? The issue is not exclusively constitutional – it could easily have been handled in a typical plaint because the Court is being asked to trace the root of the titles and determine which is more authentic than the other. I agree with both sides' submissions that this Court has to investigate the documents herein to ascertain which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles. The title to be upheld conforms to lawful procedure and can properly trace its root without a break in the chain. Both Titles held by the Petitioner and the 1st Respondent are under scrutiny, and each party is to demonstrate how they got their title as held by the Court of Appeal in Munyu Maina v Hiram Gathiha Maina, Civil Appeal No.239 of 2009, where the court held:“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”

9. I will resolve that issue below rather than dwell on constitutional draftsmanship, limitations, etc.

10. The Petitioner avers that the totality of its affidavit evidence is as hereunder:a.The Petitioner has produced Grant No. 30506, dated 3rd August 1997, registered on 19th August 1997 in the name of Mohammed Abdallah Zubedi for a term of 99 years from 1st October 1995. b.The face of Grant No. 30506 shows that the stamp duty was paid on 13th August 1997 six days before registration, on 19th August 1997. c.Land Survey Plan No 173947 dated 2nd of June 1993 as certified on 21st of July 1997 together with the Transfer from Zubedi to the Petitioner dated 14th May 2004 and registered on 2nd of June 2004. d.The Petitioner also attached Grant No 45039 dated 26th of June 1994 with a similar Land Survey Plan for 99 years from 1st of May 1992 issued to David Bett and Stephen Kiptabut Maru. On the face of the said Grant, the same indicates that the Grant was registered on the 5th of February 2009, and the stamp duty was paid for on the 27th of July 1994. It would then seem that Grant No 45039 was issued in 1994 but registered fifteen years later on the 5th of February 2009, then transferred to the 1st Respondent six days later on 11th February 2009.

11. On the other hand, the 1st Respondent contends that the process by which it acquired ownership of LR No. Portion No. 3 Lamu registered as Title No. CR 45039 is explained in the Director of Land Administration letter dated 28th of March 2023 and annexed to the Affidavit of E. Wafula sworn on 15th April 2024. Records in his office show that the property was allocated to David Bett and Stephen K. Maru on 8th May 1992, some 18 years before the promulgation of the new Constitution. Registration was achieved through the Part Development Plan, resulting in the Deed Plan No. 173947 dated 3rd June 1993 LR No. Portion No. 3 Lamu and eventually vide the grant registered as CR No. 45039 in favor of the first allottees as transferred to the 1st Respondents in February 2009. The original Deed Plan is part of the 1st Respondent’s title. On the other hand, the Petitioner’s alleged title for the same property under the same LR Number allegedly registered as CR No. 30506 is based on a photocopy of the same Deed Plan. No grants or Title Deeds are based on photocopies of Land Survey Plans, especially when the first Allottee holds the original Deed Plan for the same property. R.J. Simiyu, the Director of Land Administration, confirms in his said letter that the 1st Respondent applied for subdivision and change of user, which was duly approved, and that the genuine grant is the one in favour of the 1st Respondent arising from a 1992 allocation, while the title claimed by the Petitioner arises from 1995.

12. The 1st Respondent proceeds to state that from the affidavit of E. Wafula sworn on 15th April 2024, it can be seen the efforts that a Deputy Commissioner for Lands was making to dispossess the land and hand it over to Mohamed A. Zubedi, who allegedly sold it to the Petitioner. Those records show that the Commissioner of Lands rebuffed the efforts to take that property.

13. 1st Respondent further states that the 4th Respondent was under intense pressure to create documents to enable Mohamed Zubedi to seize this land. He responded to those efforts by his letter of 7th August 1997 to the Commissioner of Lands stating that the Land Reference Number for the plot claimed by the Petitioner is the same in the Deed Plan prepared for David Bett and Stephen K. Maru. In that letter, he clarified that it is impossible to prepare another Deed Plan and that every Land Reference Number has to have only one Deed Plan.

14. The 1st Respondent asserts that this petition is a means to achieve double registration and ownership of the same property. A dishonest officer at the Land Office named P.K. Kahuho then purported to cancel the allocation to Zubedi but failed.

15. The 2nd, 3rd, and 4th Respondents state that they instituted an inquiry into their records to ascertain the authenticity of the two disputed Grants. Upon investigations into the relevant records of Portion Number 3 - Lamu, Kitau Manda Island - the “suit property,” the Respondents found that it was issued in favor of David Bett and Stephen K. Maru on 8th May 1992 through a letter of allotment - annexure EW 1.

16. The 2nd and 3rd Respondents avow that Grant C.R. NO 45039 was prepared based on the original Deed Plan Number 173947, which the 4th Respondent confirms - annexure SNS 5.

17. On 11th February 2009, a transfer was effected in favor of Kidege Investments Limited, the 1st Respondent and a restriction under Section 65 (2) (f) of the Registered Titles Act (repealed) was placed on 9th March 2011 accordingly. A copy of the transfer instrument is annexure SNS 3.

18. In their averments and submissions, The Petitioner and the 1st Respondent accuse each other of fraud and corrupt practices in acquiring the title each holds in corroboration with the land officials. They submitted and provided authorities that this Court should consider finding in one's favor rather than the other. The only convergence is that each is a purchaser allegedly for value without notice, as held in the Ugandan Court of Appeal case of Katende v Haridar & Company Ltd [2008] 2 EA 173 - I will revert to those submissions and authorities where necessary – but as already stated the key issue here is the root of the title each is holding.

19. The ELC has been grappling with the issue of double allocations of land for a while, leading to decisions like Haji v Attorney General & 4 others; Athman & another (Interested Parties) [2024] KEELC 457 (KLR), where when presiding on a similar issue involving two sets of Title recorded in the Lamu Registry, this Court expressed its frustration with the Lamu Land Registrar as follows:“…Mr Tom Nyangau the Register of Land Lamu was of little assistance to this Court…Instead he seemed to shrug his arms…All this mess could have been avoided if our Land Registries had genuine, verifiable and timely entries in the register reflecting and mirroring dealings in land held on our behalf.”

20. In the same decision, This Court delved into details on the Torrens System and how the land registries are failing Kenyans. There is a dereliction in keeping accurate records that reflect the precise entries and dispositions that mirror the title:“Ideally, this Court – the ELC would not be dealing with fraudulent transactions, double allocations, or obtaining titles through dishonest means if the Torrens System was correctly operating in this Country and everything was presumed to be in the status as submitted by Mr. Mwanzia for the petitioner, holding all factors "Omnia praesumuntur rite esse acta” – (all acts are presumed to have been done rightly and regularly). The ELC will close its doors, and we will not grow weary, but rather, we will sprout wings, ready to soar to heaven as inspired by Isaiah 40. 31:“But those who hope in the Lord will renew their strength. They will soar on wings like eagles; they will run and not grow weary; they will walk and not be faint.”

21. The Court further proceeded to state:“The Torrens title system works based on title registration, which confers the high indefeasibility of registered ownership. The approach eliminates the requirement to demonstrate a chain of titles, which involves tracking titles through a sequence of documents backward in time. For example, to buy land, one would simply be required to visit the Land Registry, search for the most current registered owner, make the purchase, have the land register transferred and registered in one’s favour, and then use it as necessary. But the reality is our registration system does not reflect what is obtained on the ground, which is why this system isn't functioning well for us. There are instances when the registration of interests' sequencing is off-mark. Double registrations, fraudulent acquisitions, corrupt and underhand deals, etc., have led to so many lawsuits - around what is now commonly referred to as ‘due diligence and tracing the root of the title’ - the daily bread for the ELC. Decisions like Wainaina v Kiguru & another (Environment & Land Case E023 of 2021) [2022] KEELC 3261 (KLR) (28 July 2022) (Judgment) have been coined:“It is trite that when a person’s title is questioned, the proprietor must show the root of his ownership. In the case of Hebert L Martin & 2 others v Margaret J Kamar & 5 others [2016] the Court held:“A court, when faced with a case of two or more titles over the same land, has to make an investigation so that it can be discovered which of the two titles should be upheld. This investigation must start at the root of the title and follow all processes and procedures that brought forth the two titles at hand. It follows that the title to be upheld is one that conforms to procedure and can properly trace its root without a break in the chain. The parties to such litigation must always bear in mind that their title is under scrutiny and must demonstrate how they got it, starting with its root. No party should take it for granted that they have a right over the property simply because they have a title deed or Certificate of Lease. The other party also has a similar document, and there is no advantage in hinging one’s case solely on the title document they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.” 22. Further, In the case of Munyu Maina v Hiram Gathiha Maina, Civil Appeal No 239 of 2009, the Court of Appeal held that: -

“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged, and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal, and free from any encumbrances, including any and all interests which would not be noted in the register.”

22. See also this Court's lamentations in Republic v Chief Land Registrar; Kamau (Ex-parte Applicant); Guyo & 4 others (Interested Parties) (Judicial Review 2 of 2022) [2023] KEELC 21242 (KLR) (2 November 2023) (Judgment) Neutral citation: [2023] KEELC 21242 (KLR):“The dealings in the Chembe /Kibabamshe Adjudication Section (also read Kilifi/Jimba Adjudication Section) leave a bitter taste in the mouths of the landowners and are so convoluted that the titles issued do not reflect the true spirit and principles of the Torrens System:a.Mirror principle – the register reflects (mirrors) accurately and completely the current facts about the title of each registered lot. This means that each dealing affecting a lot (such as a transfer of title, a mortgage or discharge of same, a lease, an easement, or a covenant) must be entered on the register and so be viewable by anyone.b.Curtain principle—one does not need to go behind the certificate of Title as it contains all the information about the title. This means that ownership need not be proved by long, complicated documents kept by the owner, as in the private conveyancing system. All of the necessary information regarding ownership is on the Certificate of Title.c.Indemnity principle – provides for compensation of loss caused by private fraud or by errors made by the Registrar of Titles.The titles issued are no longer indefeasible; the Land registers do not mirror the proper disposition and ownership, and the officials at the adjudication and allocation (registration sections) missed it. Perhaps they will need to account for (indemnify) in the future. There is this current slang going around in social media that for you to buy land in Kenya, you will need a good lawyer, a surveyor (a good land agent or broker), and a drunkard from that local area to tell you whether you will be purchasing “air.” The latter person will likely mirror the title better than the Land Registries! The titles from the Chembe/Kibabamshe Adjudication Section (also read Kilifi/Jimba Adjudication Section) are worse! This will be a discussion in another forum”- [emphasis supplied].

23. I agree with Ms.Julu, learned counsel for the Petitioners, and Ms. Lutta, learned State Counsel for the 2nd, 3rd, and 4th Respondents,that the subject matter stems from the previous land law regime, including but not limited to the repealed Registered Titles Act, Cap 281. Subject to Part XII of the Land Registration Act No. 3 of 2012, the current land law regime and repealed laws are relevant to address issues raised herein and shed light on the suit property’s history. See Tukero Ole Kina & another v Tahir Sheikh Said (also known as TSS) & 5 others [2015] eKLR, where the Court cited the provisions of Section 23(3) (c) of the Interpretation and General Provisions Act, which provides as follows:“Where a written law repeals in whole or in part another written law, then unless a contrary intention appears the repeal shall not affect a right, privilege, obligation, or liability acquired, accrued or incurred under a written law so repealed.”

24. As which Grant between C.R. No. 30506/1 and Grant C.R. No. 45039 is valid in respect of suit property. The explanation is provided by the sequence of how the two titles came into being as deposed by E. Wafula for the 2nd Respondent and Sheila N. Soita for the 3rd Respondent in their affidavits dated 13th June 2023 and 9th May 2023, respectively.

25. I will agree with Ms. Lutta that section 28 of the Registration of Titles Act (repealed) provided as follows:“Except as is hereinafter otherwise provided, every instrument presented for registration shall be accompanied by the prescribed form and fee, and shall be registered in the order of time in which it is presented for that purpose; and instruments registered in respect of or affecting the same land shall be entitled to priority according to the date of registration, and not according to the date of each instrument itself; and the registrar, upon registration thereof, shall file a photostat copy in the registry of titles and shall deliver the original to the person entitled thereto, and as soon as it is registered every instrument shall, for the purposes of this Act, be deemed and be taken to be embodied in the register as part and parcel thereof.”

26. Further, Section 18 of the Registration of Titles Act (repealed) authorized them to keep and maintain a record book of all the documents produced in support of each application for land granted under the repealed Statute. Section 21 of the Registration of Titles Act (repealed) also highlighted the form of grant registration.

27. As per the relevant record, Grant C.R No. 30506 is a leasehold interest for 99 years from 1st October 1995 to 2nd June 2004, and the same was transferred to Tight Solutions Limited, herein the Petitioner—annexure SNS 1—copy of Title No. C.R. No, 30506, together with Deed Plan. Deed Plan No. 173947, annexed to C.R. No. 30506, is a certified copy issued on 21st July 1997. There is a glaring discrepancy, as the date of allotment was 1st October 1995, while the date of issue of the deed plan is 2nd June 1993. The records also indicate that a grant of title of the suit property was executed and issued to David Bett and Stephen Kiptabut Maru as Tenants in common in equal shares.

28. On 5th February 2009, the grant was registered as Grant C.R. NO. 45039. This is confirmed by correspondence with the 4th Respondent – annexure EW 1 and EW 2 I - a copy of the Letter of Allotment and a copy dated 2nd March 2023, respectively. The letter from the 4th Respondent concerning the suit property confirms that Deed Plan No. 173947 was prepared and issued based on a survey of F/R No. 240/191 and computations No. 29614 and that the deed plan annexed to Grant C.R. NO. 45039 is genuine and originated from their office - annexure SNS 5 - the letter dated 2nd March 2023. As of 8th May 1992, the suit property was already alienated and issued to David Bett and Stephen K. Maru, who transferred the suit property to the 1st Respondent on 11th February 2009. Section 22 of the same Act provides that in the event of a transfer, the original title is to be presented before the Registrar for cancellation and a new title to be issued to the new proprietor - annexure SNS 3 - copy of the Transfer Instrument.

29. The inquiry from the Director, Land Administration Report confirm that the deed plan annexed to Grant No. 45039 is genuine since it is under the earliest allocation, dated 8th May, 1992 whereas that of the Petitioner was in 1995. As submitted by Ms. Lutta citing - a passage from the case of Gitwany Investment Limited v Tajmal Limited & 3 others [2006] eKLR, which persuades this Court:“…title given to Gitwany in the first instance and which I have held to be absolute and indefeasible as regards the suit land is the earlier grant and in the words of the Court of Appeal in Wreck Motors Enterprises vs Commissioner of Lands, C.A. No. 71/1997 (unreported): - is the “grant [that] takes priority. The land is alienated already.” This decision was again upheld in Faraj Maharus vs J.B. Martin Glass Industries and 3 others C.A. 130/2003 (unreported). Like equity keeps teaching us, the first in time prevails so that in the event such as this one where, by a mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel of land, then if both are apparently and on the face of them, issued regularly and procedurally without fraud save for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity. The Gitwany title fits this description and in fact up to the end of this case, the 3rd party has not sought to cancel it!

30. Nothing on record suggests that the first allottee acquired the suit property through fraud, misrepresentation, or corrupt scheme to warrant its impeachment - see Joseph Arap Ngok vs Justice Moijo ole Keiwua & 5 others, Civil Applic. No. Nai. 60 of 1997 (unreported), where the Court stated that:“The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act. It is our law and law take precedence over all other alleged equitable rights of title. Infact the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.”

31. Flowing from the above, ownership of the suit property undisputedly belonged to the original proprietors, David Bett and Stephen Kiptabut Maru, who held the original ownership documents, Grant No. 45039. They later transferred their legal right over the suit property to the 1st Respondent.

32. It further follows from the foregoing that since the Petitioner has not proved deprivation of his right to own property under Article 40 of the Constitution, as held by Munyao J. in Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR:“The heavy import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent titleholder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, unprocedurally, or through a corrupt scheme. The titleholder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) in my view is to protect the real title holders from being deprived of their titles by subsequent transactions.”

33. The root of the title tilts in favour of the 1st Respondent. The petition is hereby dismissed with costs.

DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 29THDAY OF JANUARY 2025. E. K. MAKORIJUDGEIn the Presence of:Ms. Julu, for the PetitionerMs. Muyaa, for the 1st RespondentMr. Munga for the 2nd ,3rd and ,4th RespondentsHappy: Court Assistant