Francis Njuguna Thuo v Julius Macharia Taki in his capacity as the member of County Assembly Witeithie Ward & County Government of Kiambu [2021] KEELC 2269 (KLR) | Ownership Disputes | Esheria

Francis Njuguna Thuo v Julius Macharia Taki in his capacity as the member of County Assembly Witeithie Ward & County Government of Kiambu [2021] KEELC 2269 (KLR)

Full Case Text

REPUBLIC  OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC SUIT NO. 149 OF 2018

FRANCIS  NJUGUNA THUO.......................................................................................PLAINTIFF

VERSUS

JULIUS MACHARIA  TAKIin his capacity  as the member  of

COUNTY ASSEMBLY WITEITHIE WARD..................................................1ST  DEFENDANT

COUNTY GOVERNMENT OF KIAMBU......................................................2ND DEFENDANT

JUDGMENT

By a Plaint dated 15th May 2018, the  Plaintiff sought for Judgment against the Defendants jointly and severally seeking for the following orders:-

a. A  Declaration  that the Plaintiff  is the rightful  registered proprietor  of all that land parcel  known as  original land  Reference Number  L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13), all measuring  approximately  0. 3997 Ha situate  within Witeithie ward

b.  A Declaration  that the 1st Defendant  has unlawfully encroached  onto the  property of the Plaintiff, which is all that property  known as  original land  reference  L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13) all measuring  approximately  0. 3997 Ha situate  within Witeithie ward.

c. The 1st & 2nd  Defendants be restrained  by themselves, their servants, agents  employees and/or anyone  from encroaching onto or interfering  in any manner  howsoever  with the Plaintiff’s quiet user and enjoyment  of all that property  known as L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13) all measuring  approximately  0. 3997.

d. The 1st & 2nd  Defendants be restrained by themselves, their servants, agents, employees and /or anyone claiming  ownership through or under them by  permanent injunction  from making  public allegations  and/or claims  howsoever  that all that property known as original  L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13) all measuring  approximately  0. 3997 Ha belongs  to anyone else besides the Plaintiff

e. Damages for trespass

f. Punitive or exemplary  damages.

g. Costs of this suit

h. Any other or further relief  this honourable Court may deem fit to grant.

In his statement of  Claim, the Plaintiff averred that in 1990, he bought  L.R No. 14936, from Frame  Tree Farms Limited, and the said land was transferred to him in 1992.  That he took possession  and started developing  the said land as he deemed fit. That in 2005, he engaged a  Surveyor who carried  out subdivision  of the suit property and on 23rd August 2006, the resultant 13  deed plans beingL.R No. 14936/1-13,  were duly registered in his name.

Further that  he has retained possession and has been  in full control of the suit property  without any interference until May 2018,  when the 1st Defendant unjustifiably claimed that the said suit property was public land and started encroaching on the said suit property. That prior to  May 2018, the 1st  Defendant  publicly alleged  that the  suit property was meant to be a public utility  and engaged his agents/employees to forcefully enter the suit property and removed the beacons that had been rightfully placed. That the  Plaintiff’s  demands to the 1st Defendant to stop the trespass were not fruitful.

That on  9th May 2018, the 1st Defendant publicly  declared that under  no circumstances shall the  County Government of Kiambu, allow the Plaintiff’s continued ownership  and / or use of the suit land   and that the same was declared in his presence and that of the Surveyor. That the Defendants have been legally  notified in writing  that there is no  eviction order against  the Plaintiff  and no order  to the effect that the land is public land.  It is the Plaintiff’s contention that the  suit property is neither located on a public amenity  nor set aside for any public use . That it is not specifically mentioned in the Ndungu’s Land Report, and does not fall under any titles  revocation notices.

The Plaintiff further averred that he has suffered loss by way of deprived rights  of user and damages.  That the 1st Defendant ‘s actions as a servant of the County Government of Kiambu,   have been oppressive, arbitrary and unconstitutional  and they are bordering on actual harassment and  disregard for the Plaintiff ‘s right to peaceful enjoyment of his property.

The suit is contested and the  2nd Defendant  filed its statement of Defence dated  5th March 2019, and denied all the allegations made in the Plaint. The 2nd Defendant denied that the   1st Defendant is its servant  or agent and that it should be held accountable  for his actions. It further denied being issued with a notification in writing  over the said parcel of land. It was its contention that the  Plaintiff has not proved any interference with his parcel of land by the 2nd Defendant.

The 1st Defendant entered appearance   vide Notice of Appointment dated 28th May 2018, through the Law Firm of  Kimani  Wakimaa & Company Advocates, but did not  file any Defence nor participate in the hearing.

The matter proceeded by way of viva voce evidence, wherein the Plaintiff testified for himself and closed his case. The Defendants did not call any witnesses.

PLAINTIFF’S CASE

PW1 Francis Njuguna Thuo adopted his witness statements as his evidence in Court. He produced his list of documents dated 15th May 2018,as Exhibits 1 to 5 and urged the court to allow his prayers.

That the 1st Defendant encroached on his land. That he had reliable information that the Governor had gone to see the plot. Further, that the area  MCA engaged his agents and visited his plot  and later trespassed on it, That they continued the act of trespass and destroyed his property.  That the County Government of Kiambu intended to construct a hospital, though no hospital was constructed. That the area MCA and the County Government of Kiambu tried to repossess his property. That the MCA and the Governor are joined at the hip and 1st Defendant is the Representative  of the County Government.

The Plaintiff and the 2nd Defendant filed written submissions which  the Court has read and considered. The Court has also read and considered the pleadings by the parties, the evidence adduced and the relevant provisions of law and finds that the issue for determination is whether the Plaintiff is entitled to the orders sought.

The Court will first determine whether the 1st Defendant is an employee and or  servant/agent of the  2nd Defendant. Article 176 of the Constitution  makes provisions for County Government and  under  Article 176(1)  it provides;

“there shall be a County government for each county, consisting a County Assembly and  County Executive.”

From the above, it is not in doubt that the 1st Defendant is not an agent nor an employee of the 2nd Defendant as their offices are distinct.

The Plaintiff had sued the 2nd Defendant on the basis  that the 1st  Defendant was acting on its behalf.  No evidence nor direct allegations were made against the 2nd Defendant.  Therefore, the Court finds and holds that the suit as against the 2nd Defendant is not tenable,  having held that the  1st Defendant was not its agent.

Though duly served, the 1st Defendant only entered appearance but did not file a Defence and the allegations made by the Plaintiff remained uncontroverted. It is not in doubt that the Plaintiff is the registered owner of the suit property as he has  produced in evidence,  a Grant evidencing the same.Section 26of the Land Registration Act provides that

“(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

The Plaintiff being in possession of the Certificate of title is therefore the absolute and indefeasible owner of the suit property. No evidence has been produced to show that his title to the suit property has ever been impeached or no evidence has been called to challenge his  registration.  Therefore, the Plaintiff being the registered owner of the suit property, remains the indefeasible and absolute owner.

The Plaintiff has accused the 1st Defendant of interfering with his title. In his list of documents, the Plaintiff has produced, a Grant, and demand letter. It was also the Plaintiff’s evidence that he was present when the 1st Defendant sought to declare his property  pubic land. These evidence has  not been controverted.  Though there is no recording or corroboration by a third party, the Court is satisfied that the demand letter and moving  this Court is enough proof that indeed there was interference with the Plaintiff’s  quiet possession of the suit property as there is no way he could have  moved the Court without justifiable cause, in the absence of any evidence to the contrary. This Court is thus satisfied that the 1st  Defendant ought to be restrained from interfering in any manner whatsoever with the Plaintiff’s quiet  possession of the suit property.

The Plaintiff has also sought for damages for trespass.  Though the Plaintiff has alleged that there was trespass into his property and that the 1st Defendant’s through his servants removed beacons, from the suit property, he has not produced any evidence of such trespass. Trespass is the unjustifiable intrusion of someone’s land. In this case, the Plaintiff needed to have proved that there was intrusion by providing photographs or any tangible proof  of the same which he has failed to do. Therefore, this Court finds that the Plaintiff is not entitled to the   prayers sought for damages for trespass.

Consequently the Court finds and holds that the Plaintiff has failed to prove his claim against the 2nd  Defendant, but has partially proved his claim against the 1st Defendant.

Having now carefully read and considered the pleadings, the evidence adduced  and the written submissions and the relevant provisions of law, the Court finds and holds that the  Plaintiff has proved his claim to the required standard of balance of probabilities and  his claim vide the Plaint dated 15th  May 2018  is allowed  in the following terms;

a. A  Declaration be and is hereby made   that the Plaintiff  is the rightful  registered proprietor  of all that land parcel  known as  original land  Reference Number  L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13) all measuring  approximately  0. 3997 Ha situate  within Witeithie ward.

b. The 1st Defendant be and  is hereby  restrained  by himself  his  servants , agents  employees and/or anyone  from encroaching  onto or interfering  in any manner  howsoever  with the Plaintiff’s quiet user and enjoyment  of all that property  known as L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13) all measuring  approximately  0. 3997.

c. The 1st Defendants be  and is hereby restrained by himself, his  servants, agent , employees and /or anyone claiming  ownership through or under them by  permanent injunction  from making  public allegations  and/or claims  howsoever  that all that property known as original  L.R No. 14936(with  resultant titles known as L.R No. 14936/1-13) all measuring  approximately  0. 3997 Ha belongs  to anyone else besides the Plaintiff

d. Costs of this suit to be borne by the 1st  Defendant.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 29TH DAY OF JULY 2021.

L. GACHERU

JUDGE

29/7/2021

Court Assistant – Dominic

ORDER

In view of the declaration of measures restricting Court operations due to theCOVID-19 Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020, this Judgment has been delivered to the

parties online with their consents. They have waived compliance with Order 21 rule 1 of theCivil Procedure Rules which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

M/s Waigwa for the Plaintiff

No appearance for the 1st Defendant

M/s Mbugua for the 2nd Defendant

L. GACHERU

JUDGE

29/7/2021