[2025] KEELC 11 (KLR)

Yaa & another v National Land Commission & 4 others (Environment & Land Case 151 of 2016 & 180 of 2017 (Consolidated)) [2025] KEELC 11 (KLR) (15 January 2025) (Judgment)

Neutral citation: [2025] KEELC 11 (KLR)

Republic of Kenya

In the Environment and Land Court at Malindi

Environment & Land Case 151 of 2016 & 180 of 2017 (Consolidated)

FM Njoroge, J

January 15, 2025

Between

Karisa Jefwa Yaa

Plaintiff

and

National Land Commission

1st Defendant

District Land Registrar Kilifi

2nd Defendant

Attorney General

3rd Defendant

Christine Nikaje Ephraim

4th Defendant

As consolidated with

Environment & Land Case 180 of 2017

Between

Christine Nikaje Ephraim (Suing as Legal Representative of Dinah Mshenga, Deceased)

Plaintiff

and

Karisa Jefwa Yaa

Defendant

Judgment

1. In ELC Case No. 151 Of 2016 the plaintiff Karisa Jefwa Yaa filed a plaint dated 14th June 2016 in which he named three defendants and sought the following prayers:a.A declaration that the plaintiff and members of his family are the legitimate owners as the parcel land known as Plot Number 1 Mtwapa Settlement Scheme;b.An order directing the 1st defendants to allot Plot Number 1 Mtwapa Settlement Scheme to the plaintiff;c.An order directing the 1st defendant to register the Plot Number 1 Mtwapa Settlement Scheme in the name of the plaintiff upon payment of the requisite payments;d.Permanent injunction restraining the 1st and 2nd defendants by themselves their servants agents or any other person from allotting and registering plot Number 1 Mtwapa Settlement Scheme other than the plaintiff.

2. Christine Nikaje Ephraim was joined as the 4th defendant pursuant to her application to court in that file.

3. In Malindi ELC 180 of 2017 the plaintiff Christine Nikaje Ephraim sued Karisa Jefwa as the sole defendant and sought the following prayers:a.A mandatory order of injunction do issue restraining the defendant by himself or by agents from claiming, erecting, illegal structures wasting alienating , selling , disposing, threatening the plaintiff with harm or eviction, trespassing onto and/or in any other way dealing with the plaintiff’s plot number Kilifi /Mtwapa /1 Kilifi District within the county of Kilifi and to further stop interfering in any other way with the plaintiff’s peaceful enjoyment of the suit property pending the hearing and determination of the suit;b.An order for vacant possession directed at the defendants to vacate the plaintiff’s plot no Kilifi/Mtwapa/1 in default eviction be effected against the defendant and all those bound by the said order;c.Costs of the suit.

4. The suit land, whether referred to in this case as Plot Number 1 Mtwapa Settlement Scheme or as Plot No Kilifi/Mtwapa/1, is the same land parcel on the ground but ownership is claimed by the plaintiffs in both cases. Theirs are therefore opposing claims. The suits were consolidated by order of this court made on 29/4/2021.

Karisa’s Claim. 5. Karisa claims that he and his family have settled on a parcel of land known as Plot Number 1 Mtwapa Settlement Scheme measuring 12 acres from 1966 before the settlement scheme was officially established. He claims that due to a deliberate omission by the then director of land adjudication and settlement he was not allotted the said parcel despite occupation; that however he formally applied for registration of the same in 2015 by a letter but he has not received any response from the 1st defendant’s Department of Land Adjudication and Settlement. He states that having been in occupation for 30 years or more he is entitled to be allotted upon payment of the requisite charges to the SFT and to be registered under Section 12(1)(b) of the Land Act as the legal owner thereof. He terms the same as his ancestral land. In another section of his plaint he claims that the land he has settled on is government land which was set aside for the settlement of squatters. In yet another paragraph of the plaint he claims to have stayed on the suit land for 50 years. He avers that Section 14(5) of the Land Act 2010 recognizes the person in actual possession of a piece of land when it comes to allocation. Despite his persistent requests the 2nd defendant has refused to register him as owner.

Christine’s Claim, Defence and Counterclaim 6. Christine has a counterclaim against Karisa in ELC CASE No. 151 Of 2016. On her part, Christine claims in her plaint and defence and counterclaim that she sues as the legal representative of Dinah Mshenga (deceased). She asserts that she is the registered owner of the suit land; she denies that Karisa settled on the suit land in 1966; she states that Karisa came to the land as an employee to Dinah, and therefore there was no deliberate omission to register him as owner of the land; that Dinah’s allocation and registration as owner was proper because she was then in occupation of the suit property and she paid all the requisite fees and charges due to the SFT; that Karisa was employed as a caretaker of Dinah Mshenga in respect of the suit property; that Karisa, upon learning of the demise of Dinah and her husband, claimed ownership of the said property in his capacity as a sole legal beneficiary of the estate, and illegally entered the land and constructed houses thereon. There is standing on the suit land another house constructed by the husband to Dinah; he has declined to vacate the property, and presents himself as a settler while utilizing the suit property for his benefit to the detriment of the estate of Dinah, hence the suit, and has threatened violence against Christine if she sets foot on the property.

2nd And 3rd Defendants’ Defence 7. The 2nd and 3rd defendants filed a defence on 12/7/2022 through Jacob Punga Mkalla, State Counsel on behalf of the Attorney General. They denied that there was any formal application by Karisa for the land or that there was any deliberate omission to allocate him any land on the part of the then director of land adjudication and settlement. They aver that according to the records held at the land adjudication office, the suit land was allocated to Dinah Mshenga who at one point reported to the same office that Karisa was scheming to dispossess her of the land. They stated that the due process as followed in allocating Dinah the land. They added that when a committee was formed to look into the complaint Karisa failed to attend its meetings save the first one. The committee then in its wisdom decided to divide the land into two parcels, one of 2 acres to be owned by Karisa and one of 10 acres to be owned by Dinah.

Evidence Of The Parties. Evidence of Karisa Jefwa Yaa 8. Karisa testified on 5/7/2022 and adopted his witness statement dated 14/6/2016. His evidence is that he stays on the suit land with his 3 wives and 12 children; that his family have been the sole occupant of the land; that land officers visited the land and found him in occupation. He also produced several documents as exhibits in the case.

9. Upon cross examination by Mr Shujaa, Karisa stated that he originally came from Malindi; that he first lived at his uncle’s home and by then the scheme was already underway. He then went to the suit land and erected a structure and began farming on it. According to him the officers at the settlement office encouraged him to go on farming just as the others were. He does not know Dinah Mshenga or Christine Nikaje. He was at one time summoned to the District Officer’s office. The persons who attended that meeting were however not identified to him; he does not know if they were related to Dinah. He admitted that before the letter dated 15/9/2015 applying for the allocation of the plot to him, he had never written any other for the same purpose.

10. Upon cross-examination by Mr Ojwang he stated that he had nothing from the government to show that he owned the land. He also admitted that there is no receipt stamp on his letter dated 15/9/2015. He has never taken any complaint to any land adjudication committee; he instead took it to the chief; he stated that he built the house standing on the suit land but lacked receipts to support the claim.

11. On re-examination he admitted being summoned to the DO’s office where he was asked questions which he answered. After his letter was written, he said, land officers visited the land.

Evidence of Christine Nikaje Ephraim 12. Christine gave evidence orally and adopted her witness statements dated 14/6/2021 and 4/8/2017. Her evidence is that Karisa used to be the family shamba boy and the big house appearing on the plaintiff’s photographic evidence (P. Exh 3) was built by her father. Karisa had already buried his kin on the suit land without informing her family. According to her, the family used to visit the land to collect produce and to pay him his salary.

13. When cross-examined by Mr. Ojwang she stated that the last time Karisa attended the committee meeting was when it visited the suit land. The committee however sat more than twice. She reiterated that the land belonged to her mother Dinah.

14. Upon cross-examination by Ms. Ireri she stated that he mother had not lived on the land, but that they had utilized the same since their childhood. Her mother died in 1980. She did not have any receipt to show that the discharge of charge was paid for in 1982. She stated that there were further sittings at the lands office over the dispute.

2nd and 3rd defendants’ evidence 15. The 2nd and 3rd defendants did not call any evidence in the matter.

Submissions 16. Parties were ordered to file submissions. The 4th defendant filed submissions dated 30/9/2024. I have perused the file record and I have not seen any submissions filed on behalf of the Karisa. I have considered the submissions filed in the preparation of this judgment.

Determination. 17. I have considered the evidence on the record. The issue that arises in this case is whether it is Dinah Mshenga or Karisa Jefwa Yaa who is the proper allottee of the suit land.

18. Of the two parties before me, it appears that Christine Nikaje has documents relevant to the allocation of the land and which are older than Karisa Jefwa’s. What Karisa has is only a recent letter of the year 2015, seeking that he be allocated the land. His claim that there was a deliberate omission long ago to allocate him the land while others were being allocated theirs rings hollow in the face of the fact that others have their title documents while he has none. It also rings hollow in the face of the fact that he has not given any plausible reason as to why, if he has been in occupation of the suit land as a settler for 50 years, he had never applied for allocation before the year 2015.

19. On the other hand, the 2nd and 3rd defendants who are the custodians of documents relating to land allocation filed documents showing that the land was allocated to Dinah Mshenga and that a discharge of charge and a transfer had been prepared in her favour in the year 2009 in respect of the land.

20. The evidence of Christine Nikaje is that Karisa Jefwa Yaa was a mere caretaker on the suit land under the employ of Dinah Mshenga, but after Dinah’s demise, thinking himself the sole person entitled to Dinah’s estate, he sought to be registered as owner or attempted to get the land allocated to himself as a settler.

21. Though the evidence in that regard is scanty, I am also persuaded that in view of the fact that the circumstantial evidence in this case leads the court to the conclusion that the evidence given by Christine that Karisa was simply a caretaker on the suit land is true; he did not even have any evidence of construction of the house whose photograph he produced in evidence, and that despite having been warned by pleadings that his adversary laid claim to the construction of the said house.

22. In this court’s view, Christine Nikaje Ephraim has established her claim to the suit land on a balance of probabilities while Karisa has wholly failed to establish his claim as pleaded.

23. However, both parties admit that the local administrative officials have attempted to resolve the issue. The 2nd and 3rd defendants’ defence, even if not supported by their own evidence, was supported by the principal parties’ admissions that there was an alternative dispute resolution method employed and that there were sittings at the DO’s office and at the Settlement Office as well as visits to the suit land. This court is therefore convinced from the evidence on the record and the documents filed by the 2nd and 3rd defendants that there has therefore been alternative dispute resolution regarding the matter which arrived at the resolution that the land should be divided into two portions with one portion measuring 10 acres being given to administrator of Dinah’s estate and the rest measuring 2 acres being given to Karisa. Since Karisa lacked any documentation showing that he had right to own the land, that decision was evidently in his unmerited favour.

24. But for this evidence, this court would be inclined to dismiss Karisa’s suit for failure to establish his claim on a balance of probabilities. However, as the alternative dispute resolution (ADR) process had involved both parties (though Karisa is said to have failed to attend most meetings), and Karisa has established that he has been living the land for a long time and his family is still on the land even now, and Article 159(2)(c) of the Constitution requires promotion of ADR, this court finds it proper to adopt the resolution reached by the committee that dealt with the matter to write finis to the dispute.

25. I therefore dismiss the whole of the claim of the plaintiff in Malindi ELC 151 Of 2016 and partially enter judgment in favour of the plaintiff in ELC 180 Of 2016 and the counterclaimant in Malindi ELC 151 Of 2016 and I order as follows:a.The suit land known as Plot No Kilifi/Mtwapa/1 shall be divided into two portions one measuring 10 acres which shall be registered in the name of the administrator of the estate of Dinah Mshenga (deceased) and the remainder shall be registered in the name of Karisa Jefwa Yaa;b.As Karisa Jefwa Yaa occasioned this litigation by failing to vacate the suit land he shall bear the costs of the consolidated suit herein.

JUDGMENT DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 15TH DAY OF JANUARY 2025. MWANGI NJOROGEJUDGE, ELC, MALINDI