Croton Investment Limited v Lucy Njoki Maina, Land Registrar, Ruiru & Attorney General [2022] KEELC 1850 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT THIKA

ELC CASE NO.293 OF 2018

(FORMERLY NRB MILIMANI ELC 120 OF 2015)

CROTON INVESTMENT LIMITED.......................PLAINTIFF

VERSUS

LUCY NJOKI MAINA......................................1ST DEFENDANT

THE LAND REGISTRAR, RUIRU................2ND DEFENDANT

ATTORNEY GENERAL.................................3RD DEFENDANT

JUDGMENT

The Plaintiff herein Croton Investment Limited commenced this suit vide a Plaint dated  9th February 2015, and sought for the  following orders as against the Defendants;

a) A Declaration  that the Plaintiff  is the lawful  owner of the  property known as  Ruiru Kiu  Block 2/3456.

b)  A Permanent  Injunction restraining  the 1st Defendant  from trespassing , interfering,  encroaching  or in any  way possessing  the property  known as  Ruiru Kiu Block  2/3456.

c)  An order compelling  the 2nd Defendant  to immediately remove , withdraw and/or cancel  the caution placed upon the  suit property.

d) An order for the eviction  of the 1st Defendant , her servants and /or agents  from  the suit  property  known as Ruiru Kiu Block 2/3456, and everybody claiming  through  them and under them be bound by the said order.

e)  In the alternative to prayer (d) above, an order for delivery up if vacant  possession to  the Plaintiff of the property  known as  Ruiru Kiu Block 2/3456, or the portion  thereof occupied  by the Plaintiff,  by herself  and or her servants  and/or agents  and everybody claiming through  her or under  her be bound  by the said order

f)  Mesne profits to the date and or granting of vacant possession

g)  General Damages for trespass

h) Interest on (e) and (f) above at Court rates from the date of filing suit until

In its statement of Claim, the Plaintiff averred that it is the registered owner of the suit property. However, the 1st Defendant has trespassed onto the suit property and the Plaintiff is unable to  peacefully enjoy and carry on its business  thereby causing it loss. That the 1st Defendant has laid an illegal claim over the suit property and has registered a caution. It is the Plaintiff’s contention that the 1st Defendant has fraudulently and irregularly obtained an alleged Title in respect of the suit land. It particularized fraud by the 1st Defendant as;-

-   Attempting to obtain parallel title document,

-   Purporting to take over and evict the Plaintiff, trespassing,

-   Registering an encumbrance.

The Plaintiff further particularized fraud and illegality by the 2nd Defendant as;-

-   Allocating the 1st Defendant the suit property while there was a prior registration,

-   Issuing the 1st Defendant with a title deed to the suit property,

-   Attempting to cause issuance of two titles,

-   Colluding with the 1st Defendant to obtain the  irregular and illegal Title and to register an encumbrance.

It was the Plaintiff’s contention that the 1st Defendant has trespassed and damaged the suit property and it is therefore just that an order of permanent injunction be granted.

The 1st Defendant contested the suit and filed her Amended Defence and Counter Claim dated 8th July 2020, and denied all the allegations made in the Plaint and averred that she is the registered, legal and bonafide owner of L.RRuiru/Kiu Block 2(Githunguri)3456, and thus she is in occupation as the bona fide owner, having been transferred to her by Githunguri Constituency Ranching Company Limitedand having been issued with a Title Deed in her name in 1992. Further that in so far as the Plaintiff’s Title Number L.R Ruiru Kiu Block 2/3456 purports to refer to  her parcel of land,  then the Plaintiff’s Title is invalid.

That she bought ten shares of Githunguri Constituency Ranching Company Limitedin the 1970s and was duly issued with a share Certificate in her maiden name Lucy Njoki Njoroge. That she balloted and was allocated plot number3456, and two others  and took possession upon being shown the land  and has been in possession . Further, that she was issued with a Clearance Certificate in the year 1992,and upon making the requisite payments, she was issued  with a  Title Deed in the year 1992. That with time, she took a loan and built rental houses and she has never sold the suit property to anyone.

That when she learnt that people were claiming her property, she went to  Githunguri Constituency Ranching Company  Limited  and she was informed that the Company had not sold nor allocated the suit land. That upon conducting a search, the green card could not be found and she later learnt that her green card had been removed  and another green card with a title Number resembling hers  but not the same had been  placed showing, thereon that the Plaintiff was the owner. That then she reported the matter to the Police.

That she is the only one with a good title  and that the Plaintiff or the person who sold them suit property  obtained the title deed fraudulently. She particularized fraud and  irregularity as;

-   Removal of the green card with  her name and unlawfully replacing it  with the false one and

-   Obtaining an illegal title deed.

She thus contended that the Plaintiff’s claim  as per the Plaint are unfounded in law as her Title is indefeasible.

In her Counter Claim, she averred that she initially held land via ballot No.1495, and share certificate No.1087, and she had paid for all of them the requisite fees since 1973. That no two shareholders of the Company  could hold similar ballots or  share certificate and hence  the Plaintiffs claim is fraudulent. She therefore ought for orders that ;

a) That a Declaration  be issued  that the 1st Defendant’s Title  to land parcel  Ruiru/ Kiu Block 2(Githunguri)3456, is the legitimate Title  and a construction of the register be ordered forthwith

b)  That the 2nd Defendant  be ordered to cancel  or annul  the Plaintiff’s Title  to land parcel No. Ruiru /kiu Block 2(Githunguri)3456 and all entries , green cards in support of the Title

c)  That the Plaintiff be ordered to pay costs and interest of the suit

The matter proceeded by way of Viva Voce evidence wherein the Plaintiff called one witness and the 1st Defendant called two witnesses. The 2nd Defendant did not participate in the proceedings, despite  being served with the suit papers.

PLAINTIFF’S CASE

PW1 Dr, Francis Ngatia Kangematestified that  he is a Director of  Croton Investment Limited and adopted his  witness statement as  his evidence in Court.  He also produced his list of documents as Exhibit 1. He further testified that their Company purchased the suit property in Ruiru  from Francis  Mwaura. That they entered  into a Sale  Agreement and  paid the purchase  price  and the  title was  shown to them. That before purchase, they did their  due diligence  and the  official search revealed that Francis Mwaura was the owner of the suit property, though he did not have an original Title Deed.  However, the said Francis Mwaura organized for it and their Advocate told them it was safe to purchase the suit property as it had been advertised in the  Kenya Gazette on  the loss of the original  Title Deed. He further stated that  the suit property was then transferred to their Company, Croton Investment Ltd and when they wanted to develop the land  four years later,  they found someone had trespassed on the suit property.

That Francis  Mwaura was a member  of Githunguri Constituency Ranching  Company Limited,  and he held a share or ballot  for the plot. That the said Francis Mwaura had the share Certificate dated  5th June 2001, being   No. 537, and ballot paper  No. 1495. He further testified that   the share Certificate was transferred from  2087,vide a transfer  dated 10th May 1985. That the Plaintiff Company acquired their certificate of title in 2009,and they could not trace the person who sold the land to them as he was Deceased. That a letter from the Land Registrar confirmed that Francis Mwaura  Kimaniwas  the registered owner  of the suit property and the land is now registered in the name of the Plaintiff.

DEFENCE CASE

DW1  Lucy Njoki  Maina  adopted her witness statement dated  11th May 2015   as her evidence in Chief. She further testified that she balloted for the suit property from Githunguri Constituency Ranching Company Limited. That her father Njoroge balloted  for it and the  Title came in the name  of Lucy Njoki Maina as she was married by then. She produced  the list of documents  dated 22nd August  2019  as Exhibits 1 to 7.  A further list of documents  dated 29th June 2020 as Exhibits  8 to 13 and the list of documents  dated 13th October 2020as Exhibits 14 to 15. That the land registration Number is  3456. That she paid for it and she was  given receipts . That she obtained  a shamba  and a plot  and ¼ an acre,  and the suit  property is 1¼  acre. Further that  she obtained the  Title in 1992,  and she has never sold the suit property to anyone. That the Title is in the  name of the Plaintiff  and she placed a caution on it. Further, that she balloted in the name of her parents  and she got the title deed in the name of Lucy  Njoki Maina.

DW2  John Maina Mburu  testified that he is the Chairman  of Githunguri Constituency  Ranching Company Limitedfrom 12th September 2009. He adopted his witness statement dated 23rd September 2020as his evidence in Court . He further testified that the owner of L.R Ruiru/Kiu Block 2(Githunguri) 3456is Lucy  Njoki Maina, and the parcel of land has not been transferred to any other party . That it is held by ballot 1495and share certificate  No. 2087  dated  19th October  1972. Further that the Clearance Certificate for  Lucy Njoki was issued  on 30th April 1992,  and  she acquired the Title Deed  on 22nd June 1992. That Francis Mwaura was  not a member   of Githunguri  Constituency ranching Company Limited. That  as per the Plaintiff’s list of documents, the  Share Certificate did not emanate  from their Company. Further, that the signatures are imitations of signatures of their former Directors and the Director whose signature has been imitated was known as Mukamba and died in  1995 and one Kamunge resigned in1996. That Lucy  Njoki Njorogedid not  transfer the suit property to any  other  person. He testified that Lucy’s Certificate is not cancelled  and the share certificate is dated 19th October 1972, and not 10th May 1985 .That the letter dated 17th February 2009, did not emanate from their offices.

Further  that Francis Karianji  Njorogewas a former Director of the Company between 2003 and 2009  and  is a fraudster  and he is serving, jail term of 2 years. That when the land was transacted, he was not the Chairman and that he did not know all the, members of Githunguri Constituency Ranching Company Limited,individually,  but through records. That if a Director signs a letter on behalf of the Company, the Company would be bound if it is a genuine letter. That the Company did not issue any objection to the Kenya Gazette publication as they did not see the said Notice or Publication.  That the essence of the receipt issued in the year 2009, is for taking the owner  to the ground to show them the plot.

The parties were directed to file written submissions and in compliance with the said directives, the parties filed their respective written submission which the Court has carefully read and considered and renders itself as follows;-

The Plaintiff and the 1st Defendant have both laid claim to the suit property. While the Plaintiff contends that  and has produced in evidence a  title deed that indicates that it is the  registered proprietor of L.R  Ruiru  Kiu Block 2/3456, the  1st Defendant has contended and has produced in evidence a  title deed that shows that she is the registered owner of  L.R  Ruiru/kiu  Block 2(Githinguri)3456. While the Land Reference Numbers would appear different, from the evidence adduced, there  is no doubt in the Court’s mind that the suit property originated from Githunguri Constituency Ranching Company Limited, and that  the said property being Land Reference No. 3456 originated from  Ballot No.1495 . The question then would be who is the bonafide owner of the  said share certificate and  ballot card? This is what this Court must determine.

As both parties  hold  a title deed over the suit property, the Court is  guided by the  holding of the Court in the case of Hubert L. Martin & 2 Others …Vs… Margaret J. Kamar & 5 Others [2016] eKLR, where the Court held that;

“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 that is to be upheld is that which conformed 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 they need to demonstrate how they got their title starting with its root. No party should take it for granted that simply because they have a title deed or Certificate of Lease, then they have a right over the property. The other party also has a similar document and there is therefore no advantage in hinging one's case solely on the title document that they hold. Every party must show that their title has a good foundation and passed properly to the current title holder.”

The Plaintiff   through its Director, PW1 testified that it bought the suit property from   Francis Mwaura Kimani,who held ballot No. 1495, and was issued with  a share Certificate  No. 537, dated 5th June 2001, and that the same was transferred from  2087. The Court has perused the documents produced in evidence by the Plaintiff and notes that there is a title deed in the Plaintiff’s name dated 27th August 2009, a letter dated 17th February 2009, from Githunguri Constituency Ranching Company Limited, certifying that  Francis Mwaura Kimani  is the rightful owner of  L.R 2/356, share Certificate No. 537dated 5th June 2001,  and a ballot. However, DW2 who is the Chairman of Githunguri Constituency Ranching Company Limited, testified and produced in evidence documents from the Company indicating otherwise and denied that the above documents emanated from their Company.

Together with evidentiary documents, the Defence witness produced, in evidence a letter dated  20th  February 2020, from the Company stating that the  1st Defendant was the owner of  L.R 3456, and ballotNo.1495. An extract of register was further produced  which indicated that the  1st Defendant was the owner alongside a ballot No. 1495, and a  Share Certificate 2087. From the share Certificate dated 5th June 2001,  the  same having been produced by the Plaintiff indicate that the  Share Certificate was a transfer from 2087.

The 1st Defendant is the holder of  Share Certificate 2087and no evidence has been produced to   prove  otherwise. As Githunguri Constituency Ranching Company is the custodian of all documentations as pertaining to the suit property and further as the 1st Defendant has produced, in evidence the receipts of payments, Share Certificate 2087, Ballot No. 1495 evidencing the root of her title, the  Court is satisfied that it is the 1st Defendant who has  satisfactorily shown or proved the root of her certificate of title.

However, the Plaintiff has failed to show that its Certificate of title has a good foundation and that it was properly passed to.  There is no evidence that the said Francis Mwaura Kimani, was ever a member of  Githunguri Constituency Company Limited and hence no evidence of how he acquired the documentation. The 1st Defendant being the bearer of Certificate No. 2087,has denied ever transferring the same to any other party. The Court therefore finds and holds that the Plaintiff has failed to satisfactorily show the root of its title, whereas the 1st Defendant has done so.

Even if the Court was to assume that both parties have valid documentations, from the evidence produced, it is clear that the 1st Defendant was the one who had been allotted the land in the year1970 and her title deed was issued in 1992, while the documents from the said Francis Mwaura Kimani, who allegedly sold the land to the Plaintiff shows that he was issued with a share certificate in 2001, and the  title deed held by the Plaintiff was issued in 2009. On priority basis on  allocation of the suit property, the Court finds and holds that the one held by the 1st  Defendant must be given priority. See the case of Gitwany Investment ltd vs. Tajmal Ltd & 3 Others (2006) eKLR, where the Court held that:-

‘….the first in time prevails, so that in the event such as this one whereby a mistake that is admitted, the Commissioner of Lands issued two title 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’

Further in the case ofRepublic Versus City Council of Nairobi & 3 Others (2014) eKLR, the Court held that;

“once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated,the same land cannot be reallocated unless the first allocation is validly and lawfully cancelled.”

Therefore, this Court finds and holds that the 1st Defendant is the bonafide owner of the suit property. The Plaintiff had sought for a permanent injunction and an order for eviction of the 1st Defendant, general damages, mesne profits and delivery of vacant possession. However, the Court has found and held that the 1st Defendant is the bonafide owner of the suit property is and thus the absolute and indefeasible owner and entitled to all the rights and privileges appertain to the suit property as provided by Sections 24 and 25 of the Land Registration Act 2012.

Consequently, the Court finds that the prayers sought by the Plaintiff in its claim dated 9th February, 2015  are not merited and then same are dismissed.

The 1st Defendant has sought for  a Declaration that her title is the legitimate one  and that the 2nd Defendant  be ordered to cancel  or annul the  Plaintiff’s certificate of title.

Section 26 of the Land Registration Act, provides for circumstances under which a certificate of title can be impeached. The Court has found and held that the 1st Defendant is the bonafide owner of the suit property and that the certificate of title held by the Plaintiff  was acquired  unprocedurally. This court hence has no option but to impeach the said certificate of title held by the Plaintiff and order for the rectification of the register.  The title held by the Plaintiff was issued in the year2009, and thus Section  143 (1) of the Registered Land Act Cap 300 (repealed) comes into play. The provisions of this Section have been repeated inSection 80(1) of the Land Registration Act which provides;

“(1) Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.”

Flowing from the above provisions of law, the Courts finds and holds that the Plaintiff’s certificate of title is impeachable and thus cancelled. The Counter claim dated8th July 2020, succeeds.

The Counterclaim dated 8th July 2020 is therefore merited.

Having Carefully considered the pleadings by the parties, the evidence adduced and the relevant provision of law, the Court finds and holds that the Plaintiff has failed to prove its case on the required standard of balance of probabilities and therefore its claim dated 9th February 2015 is dismissed entirely.

The Court further finds and holds that the 1st Defendant has provide her case on the required standard of balance of probabilities in her Counterclaim and thus finds and holds that the said Counter Claim is merited and the same is allowed in the following terms; -

a) That a Declaration be and is hereby issued that the 1st Defendant’s Title to land parcel Ruiru/ Kiu Block 2(Githunguri)3456 is the legitimate Title  and a rectification of the register be ordered forthwith

b)  That the 2nd Defendant be and is hereby ordered to cancel and or annul  the Plaintiff’s Title to land parcel No. Ruiru /kiu Block 2(Githunguri)3456, and all entries , green cards in support of the Title

c)  That each party to bear their own costs of the suit

It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MURANG’A THIS 2ND DAY OF FEBRUARY, 2022.

L. GACHERU

JUDGE

Delivered online;

In the presence of

Mr. Nyachio HB Mr. Muchemi for the Plaintiff

Mr. Warutere H/B Kanyi Kiruchi for the 1st Defendant

N/A for the 2nd Defendant

Kuiyaki – Court Assistant

L. GACHERU

JUDGE