Jackson Kaliko Ndindio v Attorney General & District Land Registrar [2018] KEELC 6 (KLR)

REPUBLIC OF  KENYA

IN THE  ENVIRONMENT AND LAND  COURT AT MAKUENI

ELC MISC.NO. 42 OF  2017

(FORMERLY ELC  HC  APPL.  NO. 208 OF 2009 MACHAKOS)

JACKSON KALIKO NDINDIO.............................PLAINTIFF /APPLICANT

VERSUS

THE ATTORNEY GENERAL..................1ST DEFENDANT/RESPONDENT

THE DISTRICT LAND REGISTRAR....2ND DEFENDANT/RESPONDENT

RULING

1) There  is before  me an amended  notice of motion application expressed  to be brought under sections 8 and 9 of  the Law Reform Act (Cap 26 of the Laws of  Kenya) and Order  53 Rules 3 (1) and (3) of the Civil Procedure Rules  for:-

a) An order  of mandamus  to remove  into this honourable  court and compel the 2nd  Defendant/Respondent to cance, amend  or rectify the land register in respect of land parcel number Mbooni/Iani/898 by removing  the name of Mutune  Mutua and substituting it with that of the  Applicant herein Jackson Kaliko  grounds on its face, the statutory statement dated 24th June, 2009, the verifying and further affidavit of Jackson Kaliko Ndindo sworn on the 24th June, 2009 and 14th July, 2009 respectively.

2) On the 28th November, 2014, the amended notice of motion application was fixed for hearing  on 3rd March, 2015.  The court directed that the respondents be served with a hearing  notice.  This was done on the 9th February, 2015 as can be seen from the affidavit of service sworn at Nairobi on the 2nd March, 2015 and filed in court on 3rd March, 2015.

3) As it were, the respondents did not oppose the amended application and  as such, Mr. Aunga  who held brief for Mr. Kitulu for  the applicant asked the court to grant the prayers sought  in the application.

4) Mr Aunga gave the history of the suit land Mbooni/Iani/898 by stating that it was family   land initially owned  by the late Kiliku M Muvai who is a great  grandfather  of the applicant.   He went  on to submit that in 1964 one  Kivwau  Nzyuko sued  the applicant and his family at Uani District Magistrate Court in DMCC  No. L no. 20/1965 where he claimed part of the  land  that the   applicant  defended the suit as a result  of   which the suit dismissed. That applicant’s  family rewarded  him for the expenses he  had incurred by giving   a part  of the disputed  land.  The land was surveyed and registered   as LR no. Mbooni/Iani/898 in 1975. The  applicant  says  that the land was  fraudulently registered in the name of  one Mutuku who is  unknown  to him.

5) The counsel submitted when  the applicant  went to the Registrar  Makueni  to get  the record  regarding the said Mutuku Mutua,  the officers  declined to provide  him with any information.  The applicant says that he has been in occupation of the suit land since  1960’s whereas the said Mutua has never been seen.  The counsel further  submitted  that the title to the  suit land has been in the land registry since 1975 when the  titles were issued. That the applicant   tried to have the registered corrected  in line with sections 14 and 142 of the repealed   Registered  Land Act  Chapter   300 but he failed to do  so.  That  the matter  was reported to the area Chief  who summoned the neighbours under orders 661, 665, and  667 and they  appeared to  answer the Chief’s summons.  Those  neighbours were Mutua  Musau and Kivwau who  both all admitted that the suit land belongs to the applicant.

6) The counsel submitted that the  court  has jurisdiction under the Land Registration  Act , 2012 to order   for  the rectification of the register.

7) The counsel further submitted that the respondents who are public officers failed to act as per the law as was required of them.  He pointed  out that  the applicant’s demand  letter annexed as JKN-1 to the  further affidavit  sworn  on the 13th July, 2009 was not acted  upon.

8) Arising from the above, I do note that indeed the  court has jurisdiction under  the Land  Registration  Act, 2012 to order for rectification of the register.

9) Section  80(1) of the Land Registration Act, 2012 provides as follows;-

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

Section 80(2) of the same Act  provides that:-

“The register shall not  be rectified to affect the title of a proprietor who is in possession  and had acquired  the land, lease on charge  for valuable consideration. Unless the proprietor had knowledge of the omission , fraud on mistake in consequences of which  the rectification is sought, or caused such omission fraud, or mistake or substantially contributed to it by any act, neglect or default.”

10)  From the affidavit evidence, the applicant is the one who is in possession of the suit land even though the title document is said to be  lying at the lands office Makueni.  It is said to be  in the name of one Mutuku Mutua who  is unknown to the applicant.  Taking into consideration that the applicant has made attempts  to have the  situation  rectified, the second respondent was duty bound to give the  applicant a hearing.  In the   circumstances, I am satisfied that the applicant has shown that he merits the grant of the prayers in the   amended  notice of motion.  I, therefore, proceed to grant prayers (a)(, (b)  and (c)  of the  amended  notice of motion dated 7th October, 2014 and filed in court on 15th October, 2014.

Signed , dated and  delivered  at Makueni on 7th day of  May , 2018

MBOGO C. G

JUDGE

Court:  Ruling read aloud and dated in open court in the presence of;

Mr.  Mulei holding brief for Mr. Muema  Kituku  for the  applicant.

No appearance for the respondents

Mr. Kwemboi Court Assistant

MBOGO C. G

JUDGE

7/5/2018