Benard Mbugua Kinyanjui v County Land Registrar, Kiambu & Attorney General [2021] KEELC 1932 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT  AND LAND COURT

AT THIKA

ELC MISC NO. 35 OF 2019

BENARD MBUGUA KINYANJUI...........................APPLICANT

VERSUS

COUNTY LAND REGISTRAR, KIAMBU...1ST RESPONDENT

THE ATTORNEY GENERAL ......................2ND RESPONDENT

RULING

By a   Notice of Motion dated 12th June 2019, the Applicant sought for the following orders as against the Respondent;

1. That a mandatory order do issue directing the 1st Respondent  by himself  or through his officers  or agent or servant to unconditionally supply  to the Applicant  all the documents  used to register  the name of George  Gathutu  Wainaina  in registration  Section Part B Proprietorship  Section Entry No. 5  date  16th March 2001, in piece  of land known as  Dagoretti/Kinoo 1070.

2. That a mandatory order  do issue  directing  the 1st Respondent   by himself  or through  his officers or agents  or servant unconditionally  release Title Deed  document in the name  of the Applicant  Bernard Mbugua  Kinyanjui  in the 1st Respondent  custody of piece of land known as Dagoretti/Kinoo 1070.

The Application is premised on the grounds that  on 16th March 2001, the 1st Respondent registered the name of  George  Gathitu  Wainaina,  in registration  Section  PART B Proprietorship Entry 5,  on the suit property  without any colour of right. That from 16th  March 2001,  to date the Applicant  has been writing  to the 1st  Respondent to supply  the documents,  without success. Further that the Ministry of Lands through  Chief Land Registrar, and Permanent Secretary  has been requesting from the 1st Respondent  documents used to transfer  the suit property  without any success. That for the past 19 years, the 1st Respondent has ignored/ refused or neglected  the letters which were addressed to him.

That the  Inspector General  applied for  documents  which were used to transfer  the suit property   from the Applicant to George  Wainaina,to enable  them investigate  the fraud, but that the same was not  supplied. That the Applicant has suffered for the past 19 years and the 1st Respondent has failed in its  statutory and Constitutional  duty  and as a result the Applicant right to enjoy his property has been violated.

In his Supporting Affidavit,  Bernard  Mbugua Kinyanjui  averred that  on 16th March 2001,  the District Land Registrar cancelled  his name from the Register  and fraudulently registered the name of  Gathitu  Wainaina, and his efforts  to get the documents used for the said registration have not been  fruitful. That the District Land Registrar  received the letters seeking for supply on 2nd February 2008, but no supply  or response was made. Further that despite his subsequent letters to the District Land Registrar, the same has born no fruits . Further that  on 29th July 2011,  the Chief Land Registrar,  Kiambu  wrote to the  District Land  Registrar and requested  him to issue  Bernard Mbugua  Kinyanjui, with the documents used to  transfer the suit property. Further that   on11th April 2012, he further wrote to the Permanent Secretary,  who in turn wrote to the District Land Registrar requesting him to supply the Applicant with the supporting documents on how the suit property changed hands  but no response was forthcoming.

That the District Land Registrar then wrote to the Ministry detailing the  history of the  suit property,  which history was not required. That the Ministry then wrote to the District Land Registrar, Kiambu  informing him  that the Applicant  wanted to be issued  with certified true copies of the original  documents that were  used to transfer  the suit property  including an  Application  for Land Control Board, letter of consent, receipt for whole transaction,  any other documents relating to the whole transaction, . which letter enlisted no response. Further, that his efforts to get information from the National Land Commission have not been fruitful.

The Applicant  filed a Further Affidavit  on 9th December 2019, and averred that  he had attached the document that he  failed to inhibit in his Supporting Affidavit and in his  submissions. That the document was  to show  how he had been  struggling with the instant matter for  the last 19 yearsas he had sought help t no avail.

The Respondent did not file any pleading in this matter. However, on  in 22nd January  2020, the Applicant appearing in person and  Ms. Nyawira  taking instructions for the Respondents, agreed that  the Land Registrar  Kiambu appear in Court  and produce the  documents that the  Applicant needed.

On  17th November 2020, the  Land Registrar Kiambu  Philip Munyoki Maingi, appeared in Court  and testified that he had the documents in Court, the same  being  the transfer document  for  Dagoretti/ Kinoo/1070. That   the said land was transferred by charge in exercise  of Power of Sale on 16th March 2001, and that the same was transferred to George Gathitu  Wainaina. That there were other documents   to wit an Application  for Consent fromBarclays Bank of Kenya Limited. Letter of consent dated 1st March 2001, Memorandum of Sale, payment receipt for  stamp duty and that the transfer  was effected.

The Court ordered the Applicant to go through the documents and  verify whether the same was what he had applied for. On  31st May  2021 the  Applicant informed  Court that he did not get any of the documents that he had applied for  to which the Court reserved a date for Ruling.

The Respondents did not file any submissions. The Court has carefully read and considered the pleadings by the Applicant, the Affidavits in support, the evidence adduced by the Land Registrar and the submissions and renders itself as follows;

The Applicant filed the instant Application seeking for various Orders. Amongst the said orders, the Applicant sought to be supplied with the documents that  were used to register George  Gathitu  Wainaina  as the owner of the suit property . The Applicant has also sought  orders that the Respondents be ordered to release the title in his name. In the Court’s understanding,  as per the pleadings by the Applicant, that the registration of the said George  Gathitu Wainaina be cancelled. The Court therefore finds and holds that the issues for determination are;

1. Whether the  1st Respondent has supplied the Applicant with the documents sought.

2. Whether the Applicant is entitled to the orders.

1. Whether the 1st Respondent has supplied the Applicant with the documents sought.

In his Application, the Applicant unconditionally supplied  to the Applicant  all the documents  used to register  the name of George  Gathutu  Wainainain registration  Section Part B Proprietorship  Section Entry No.5  date  16th March 2001 in piece  of land known as  Dagoretti/Kinoo 1070.

On 17th November 2020, the Land Registrar Kiambu  Philip Munyoki Maingi appeared in Court  and testified that he had the documents in Court, the same  being  the transfer document  for  Dagoretti/ Kinooo/1070. It was his evidence that   the same was transferred by chargee in exercise of Power of Sale on 16th March 2001. He produced in evidence an Application for Consent from Barclays Bank of Kenya Limited.  Letter of consentdated 1st March 2001, Memorandum of sale and  payment receipt for  Stamp duty. In his evidence, those were the  documents that were used  to transfer the suit property to the said George  Gathitu Wainaina.It may or not may be that the said documents were sufficient to effect the transfer. However, the evidence by the Land Registrar is that as per their records, those  were the documents that were used to  effect the transfer of the suit property.

The Applicant is  of the view that those were not the documents that he had asked for or needed. However, it is the Court’s considered view that a party can only produce that which is  in its  possession. The Land Registrar, having produced and supplied the  Applicant with the documents, he says were used to effect the transfer, this Court cannot then compel the Land Registrar to produce any other documents which it does not have.  The Applicant had sought for an order that the documents used to effect the transfer be produced and the Court is thus satisfied that the same has been done regardless  of whether or not the same were sufficient to effect the transfer.

The Court therefore finds and holds that the Respondents duly supplied the Applicant with the documents that were used to effect transfer of  the suit property .

2. Whether the Applicant is entitled to the orders.

The Applicant had sought for two orders , one seeking to be supplied with the documents used to transfer the suit property  and the Court finds that the  same has been satisfied and therefore spent and cannot be granted.

The Applicant has also sought for a mandatory order  compelling the  Respondent to release the title document in his name and essentially cancel the title deed issued to George Gathitu Wainaina. It was the Land Registrar’s evidence that the suit property was transferred as a result of  exercise of power of sale by a chargee. It is further not in doubt that as per the evidence adduced that the said suit property is now registered in the said George Gathitu Wainaina’s name.   Therefore, it follows that the said George Gathitu Wainaina has Interest over the said property and adverse orders cannot be made in his absence  or issued against him.

The Applicant   ought to have  filed a suit against the parties to whom he seeks orders to be effected against  and therefore the Court finds and holds that the said orders are not tenable and Consequently,  finds that the Applicant is not entitled to the orders sought.  The Court finds the instant application is  not merited.

Having now carefully read and considered the  Notice of Motion Application,  the evidence adduced and the written submissions, the Court finds and holds that the Applicant has not availed sufficint evidence to warrant the Court grants the orders sought.  Therefore, the court finds and holds that the Applicant isnot entitled to the orders sought and the Application is therefore not merited and it is dismissed entirely..

Costs usually follow the event unless the Court’s finds that there are  special circumstances that warrant deviating from the same. The Applicant had sought these documents from the Respondents who had to  be summoned by Court in order to produce the same. The Respondents being a government institution, the Court is therefore inclined to  order that each party to bear its own costs of the suit.

It is so ordered

DATED, SIGNEDAND DELIVERED AT THIKA THIS 24TH DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy