Kivuti & 2 others v Attorney General & 3 others [2023] KEELC 22462 (KLR)

Kivuti & 2 others v Attorney General & 3 others (Environment & Land Case 2 of 2021) [2023] KEELC 22462 (KLR) (30 November 2023) (Judgment)

Neutral citation: [2023] KEELC 22462 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case 2 of 2021

JO Mboya, J

November 30, 2023

Between

Lenny Maxwell Kivuti

1st Plaintiff

Hildah Kanini Kivuti

2nd Plaintiff

Clearcut Enterprises Limited

3rd Plaintiff

and

The Attorney General

1st Defendant

The Ministry of Transport, Infrastructure, Housing and Urban Development

2nd Defendant

The Kenya Urban Roads Authority

3rd Defendant

The National Land Commission

4th Defendant

Judgment

Introduction 1. The instant suit was filed and/or commenced vide Plaint dated the 17th December 2004; and in respect of which the Plaintiffs’ sought for a plethora of reliefs against the Defendants. For clarity, the instant suit was filed before the High Court, which then was seized and possessed of the requisite Jurisdiction to entertain and adjudicate upon inter-alia, disputes concerning ownership of and title to Land.

2. Subsequently, the Plaintiffs’ herein sought for and obtained Leave to file an amended Plaint. Consequently and in this regard, the Plaintiffs’ proceeded to and indeed filed an amended Plaint dated the 17th September 2021.

3. Nevertheless, the Plaintiffs’ herein yet again sought for and obtained Leave to file and serve a Further amended Plaint. In this respect, the Plaintiffs’ filed the Further amended Plaint dated the 3rd October 2022.

4. For brevity and ease of reference, the reliefs sought at the foot of the Further amended Plaint are as hereunder;i.Declaration that the 1st and 2nd Plaintiffs were the legally registered proprietors of Land parcels known as NAIROBI/BLOCK 92/313 and Nairobi/ Block 92/314 on which the Plaintiffs’ were developing Residential Houses before the Defendants by themselves, their predecessors, their servants, workers and agents destroyed the Plaintiffs’ dwelling houses and rendered the suit properties inhospitable in every respect form the 20th December 2003 onwards.ii.Declaration that the Defendants violated the law by invading or otherwise forcefully acquiring the Land parcels known as NAIROBI/BLOCK 92/313 and Nairobi/ Block 92/314 without observing the Due process set out in statute and the Constitution of Kenya (both the repealed and the current Constitution of Kenya).iii.Damages and compensation for the Loss suffered as particularized in paragraph 15 of the Plaint and any other damages that the Court may deem fit, in such sum as the court shall determine.iv.Damages in such sum as the court will determine for Defamation.v.Costs of the suit.vi.Interest on (iii), and (iv) and (v) at court rates or as the court shall in the circumstances of the case deem fit until full and final payment of the same.vii.Any other and further orders that the Honourable Court may deem fit and just to grant.

5. Suffice it to point out that upon being served with the Original Plaint and Summons to Enter Appearance, the Defendants duly entered appearance and thereafter filed a Statement of Defense dated the 12th April 2005.

6. Furthermore, the 1st, 2nd and 3rd Defendant thereafter amended their Statement of Defense vide the amended Statement of Defense and Counterclaim dated the 2nd October 2006; and wherein the Defendants sought for the following reliefs;i.Special damages to be provided at the hearing.ii.General damages for trespass.iii.Mesne profitsiv.A declaration that the suit properties described above are Public utility parcels.v.Cancelation of the Titles numbers Nairobi Block 92/313 and Nairobi Block/92/ 314, fraudulently registered in the names of the Plaintiffs.vi.Costs of the suit and Interests at court rates.vii.Any other or further reliefs that the court deems fit to grant

7. Notably, the Defendants, namely, the Honorable Attorney General contended that the allocation/alienation of what now comprises the suit properties to and in favor of the 3rd Plaintiff, was informed by misrepresentation, mistake and fraud, which therefore vitiates the propriety of the suit property and by extension, the title of the suit property which currently [sic] inheres of the 1st and 2nd Plaintiffs.

8. Premised on the foregoing, the Defendants’ sought to have the suit herein be dismissed with costs, whilst on the other hand, seeking to have the Certificates(s) of Title over and in respect of the Suit Properties to be revoked.

9. Be that as it may, even though the Plaint was amended and thereafter Further amended, there is no evidence that the Defendants herein, namely, the 1st, 2nd and 3rd Defendants, ever filed any Further amended Statement of Defense. Instructively, it is therefore taken that the Defendants have relied on the amended Statement of Defense and Counterclaim dated the 2nd October 2006.

10. Additionally, it is also worthy to state that even though the subject matter was filed on the 17th December 2004; same did not proceed for hearing up to and including the 9th June 2022, when the hearing in respect of the instant matter commenced before this Honourable Court.

11. Moreover, it is also important to underscore that the Plaintiffs’ herein called three [3] witnesses, who testified for and on behalf of the Plaintiffs. On the other hand, the 1st, 2nd and 3rd Defendants also called three [3] witness and produced a plethora of documents in opposition to the instant matter.

Evidence by the Parties: a. Plaintiffs’ Case: 12. The Plaintiffs’ case revolves around the Evidence of three [3] witness, namely, Lenny Maxwel Kivuti, John Njagi and Peter Kitaka Kimeo, who testified as PW1, PW2 and PW3, respectively.

13. It was the testimony of PW1, namely, Lenny Maxwel Kivuti that same is a Geospatial Engineer, practicing under the names and style of M/s Geomaps Africa. Furthermore, the witness added that same is conversant with the facts pertaining to and concerning the instant matter.

14. It was the further evidence of the witness that as concerns the instant matter, same has since recorded an elaborate and comprehensive witness Statement dated the 25th October 2021. In this regard, the witness sought to adopt and rely on the contents of the witness statement dated the 25th October 2021.

15. Pursuant to and at the instance of the witness, it is imperative to state that the witness statement dated the 25th October 2021, was thereafter admitted and constituted as the Evidence -in- chief of the witness.

16. Other than the foregoing, the witness also alluded to the List and Bundle of documents dated the 29th November 2021; and which the witness sought to adopt and rely on. In this regard, the various documents at the foot of the List of Documents dated 29th November 2021; were thereafter admitted and constituted as Exhibits P1 to P15; on behalf of the Plaintiffs.

17. Besides, the witness herein also alluded to the amended Plaint dated the 17th September 2021; and thereafter implored the Honourable court to grant the various reliefs sought thereunder.

18. On cross examination by Learned counsel for the 1st , 2nd and 3rd Defendants, the witness herein averred that same was testifying for and on behalf of the 2nd and 3rd Plaintiffs herein. Further and in any event the witness added that the 2nd Defendant is his Spouse, whereas the 3rd Defendant is a company in which both the 2nd Plaintiff and himself are the Directors.

19. On the other hand, the witness testified that as concerns the suit by and on behalf of the 3rd Plaintiff, same was able to extract a Resolution under seal, whereby the 3rd Plaintiff sanctioned and authorized the filing of the instant suit.

20. Nevertheless, the witness further averred that the Resolution under seal, [which same contended to have been issued by the 3rd Plaintiff] is not one of the Documents, which has been tendered and/or produced before the Honourable court.

21. Whilst under cross examination, the witness averred that even though same has neither produced nor tendered before the Honourable court a copy of the Resolution of the 3rd Plaintiff herein, same however has a copy of the said resolution elsewhere but not within the court.

22. It was the further testimony of the witness that same worked for and with the Government of the Republic of Kenya, in the Ministry of Public Works between the year 1979 up to January 1990. Further and in addition, the witness also stated that same joined the Ministry of Public Works as a Staff Surveyor; and thereafter progressed through the ranks up to being the Head of Survey Section in the said Ministry.

23. It was the further testimony of the witness that as the Head of the Survey Section, [ Ministry of Public Works], same was in charge of the survey section, which falls under the architectural section.

24. Additionally, the witness testified that same is aware that the 3rd Plaintiff was incorporated in the early 1980’s. However, the witness averred that same was not able to recollect the exact date and month of incorporation.

25. As concerns the allocation and or alienation of what now comprises the suit properties, the witness averred that it is himself who wrote the application for allotment of (sic) the suit properties. Nevertheless, the witness clarified that the application for allotment of what now comprises the suit properties was made for and on behalf of the 3rd Plaintiff herein, which is a limited liability company.

26. Furthermore, the witness testified that upon receipt of the application for allotment of the properties in question, the Commissioner of Lands proceeded to and acted upon the application letter. In this regard, the witness contended that the Commissioner of Lands proceeded to and issued the 3rd Plaintiff with the requisite Letter of allotment.

27. Be that as it may, it was the further testimony of the witness that upon being issued with the Letter of allotment, relating to and or concerning the suit property, the 3rd Plaintiff herein wrote to the Commissioner of Lands vide Letter dated the 16th June 2000, whereupon the 3rd Plaintiff remitted and forwarded the Bankers cheques, towards and in respect of the suit properties.

28. On the other hand, the witness testified that even though the Letter of allotment was issued in favor of the 3rd Plaintiff, the 3rd Plaintiff proceeded to and caused the Letter of allotment to be transferred to and in favor of the 1st and 2nd Plaintiffs.

29. It was the further testimony of the witness that thereafter the 1st and 2nd Plaintiffs complied with the terms of the allocation, including payment of the statutory levies, culminating into the preparation and ultimate issuance of the Certificate of title.

30. Additionally, the witness averred that on or about December 2003, the Government of Kenya proceeded to and published a Notice in the Daily Newspaper, whereby same contended that the constructions that were being undertaken on the suit property, were being carried out and or undertaken on Public Land.

31. Be that as it may, it was the evidence of the witness that despite the publication of the impugned Notice in the Daily Nation, same (witness), did not take any action or at all to challenge the contents of the notice which was issued by the Government.

32. Besides, the witness further testified that same[ Witness], did not take any steps and/or actions, because he (witness), was knowledgeable of and privy to the processes involving compulsory acquisition.

33. Whilst under further cross examination, the witness herein testified that the Plaintiffs’ have since paid to and in favor of various consultancies the sum of Kes.59, 000, 000/= only on account of consultancy services. Nevertheless, the witness added that same however does not have any receipt and/or acknowledgment to show that the Plaintiffs’ paid the sum of Kes.59, 000, 000/= Only, to and in favor of consultancy.

34. Other than the forgoing, the witness also testified that same have been paying rates and rents over and in respect of the suit properties. Furthermore, the witness stated that the rates were paid to up to and including the year 2001.

35. Other than the foregoing, it was also the testimony of the witness that the suit properties are currently charged to and in favor of Barclays Bank of Kenya Ltd, otherwise, currently known as Absa Bank Plc.

36. Further and at any rate, the witness testified that same has sought for compensation on account of the value of the suit properties. However, the witness admitted that as at the time of his testimony, same had not filed a Valuation Report before the Honourable court.

37. On further cross examination, the witness averred that where the suit properties are currently standing and/or is situated, currently comprise of a road. At any rate, the witness admitted that the Road [ Redhill Link Road], is currently in use.

38. It was the further testimony of the witness that before the construction of the impugned road, the houses, which the Plaintiffs’ had constructed on the suit property, were demolished and/or brought down by the Government.

39. Besides, the witness herein also testified that part of the claim which the Plaintiffs’ have mounted before the Honourable court relates to Professional fees, which were paid to various professionals, including the transactional advocates. However, the witness clarified that even though same paid the advocates, he (witness) has neither tendered nor produced any receipt[s] to attest to such payments.

40. Other than the foregoing, it was also the testimony of the witness that the Plaintiffs’ herein have also claimed various payments on account of the contract. Nevertheless, the witness has added that the amounts claimed are contained in the contract document.

41. However, the witness thereafter stated that the amount claimed on the foot of the Contract is the sum of Kes.181, 000, 000/= only; and not Kes.293, 000, 000/- Only, the latter which has not been impleaded.

42. As concerns payment made to and in favor of Kenya power & Lighting Limited , the witness herein pointed out that the Plaintiffs’ paid various amounts to and in favor Kenya Power. Nevertheless, the witness added that same has neither tendered nor adduce any receipt to attest such monies [payments].

43. Other than the foregoing, the witness averred that the Plaintiffs’ herein also incurred various expenditures towards re-allocation of squatters, who were in occupation of the Suit properties. However, yet again the witness admitted that even though the Plaintiffs’ incurred expenses towards and on account the relocation of the squatters, same has neither tendered nor produced any receipt to confirm such payments.

44. Whilst under further cross examination, the witness testified that the Plots [now suit properties], which were allocated to and in favor of the Plaintiffs did not constitute a Road Reserve.

45. On the other hand, it was also the testimony of the witness that same was also aware that L.R 5884/15, was surrendered for purposes of re-allocation. Nevertheless, the witness admitted that even though the Land was surrendered for re-allocation, same has however not tendered before the Honourable court the Surrender Instrument to that effect.

46. Other than the foregoing, the witness submitted that the Land in question, namely, L.R No. 5884/15; had previously been acquired by the Government for Road construction.

47. In any event, the witness added that in the year 1988, the Land which had been acquired for purposes of a road construction was surrendered back to the Commissioner of Lands for re-planning.

48. In respect of the testimony that the land which had hitherto been acquired for purposes of a road construction was surrendered to the Commissioner of Land, for purposes of re-planning and allocation, the witness referred to a Letter dated the 21st August 1988 written by the Permanent Secretary, Ministry of Public works.

49. Other than the letter dated the 21st August 1988, the witness also referred to another Letter dated the 20th August 1997; and which was written/authored by one, namely, Engineer S.T Akute.

50. In respect to whether or not the land which had hitherto been acquired for road construction was duly surrendered to the commissioner of land, the witness stated that same [Witness], does not have a copy of the Surrender documents or at all.

51. It was the further testimony of the witness that same applied for the allocation of the various Plots, [whose details are contained in the Application Letter] and which request/ application was duly accepted by the Commissioner of Land proceeded to and issued the letters of allotment as pertains to the Plots that had been applied for.

52. Furthermore, it was the testimony of the witness that same (read Plaintiffs) , acquired the Plots, after the Land had been Surrendered back to the Commissioner of land.

53. Besides, it was the testimony of the witness that prior to the transfer and registration of the suit properties to and in favor of the Plaintiffs, a Deed Plan was duly prepared and thereafter approved.

54. In respect of the second Letter of allotment, it was the testimony of the witness that the portion of land which was allocated to the Plaintiffs’ was not part and parcel of a Road Reserve. Furthermore the witness averred that prior to the allocation, the Commissioner of Land, now defunct, must have checked and authenticated the availability of the suit Plot.

55. It was the further testimony of the witness that upon the allocation of the suit Plots and the consequential transfer and registration of same in the names of the Plaintiffs, the Plaintiffs sought for and obtained the various Development Approval[s] and further commenced the Developments on the suit property.

56. Further and in this respect, the witness referred the Honourable court to the various Development approval[s] produced before the court and contained at pages 53 to 57 of the Plaintiff’s Bundle of Documents.

57. Besides, the witness averred that same procured and obtained Development approvals from the Office of the Commissioner of Lands; as well as, the Nairobi City council, [now defunct].

58. On the other hand, the witnesses testified that even though the Government published in the Newspaper contending that the suit Properties formed part of Public Land, the Government, however did not summon the Plaintiffs’ to go and prove the authenticity of their title documents, [ read, Certificates of Titles].

59. Other than the foregoing, the witness added that though same was issued with Letter of allotment dated the 17th December 1998; relating to un-surveyed Residential Plot, the witness contended that the said Plot was thereafter amalgamated and hence the creation of the current property.

60. Additionally, the witness testified that even though the Letters of allotments were issued on the 17th December 1988, same however, made the requisite on the 16th June 2000; vide Bankers cheques. In any event, the witness added that the payments were duly acknowledged and receipted by the Office of the Commissioner of Lands.

61. On the other hand, the witness also testified that on the same date, namely, 16th June 2000, when same made the requisite payments, same (witness) also applied for the consolidation/amalgamation of the two Plots.

62. Furthermore, the witness testified that prior to the amalgamation of the two Plots, namely, [Plots number(s) 234 and 231], same procured and obtained the approval for consolidation from the Commissioner of lands. However, the witness admitted that same did not obtain any approval for consolidation/amalgamate from the City Council of Nairobi, [now defunct].

63. Whilst still under further cross examination, the witness herein stated that same is not familiar with Cadastral Plan Number 16297, which has been referred/ alluded to in the witness statement of one, namely, Mr. Paul Odak.

64. Additionally, the witness stated that though he has not produced a Surrender document/ Instrument, relating to surrender of L.R No. 5884/15; to the Government, same is aware that the land was duly surrendered.

65. It was the further testimony of the witness that the suit plots/ properties comprise of and or constitutes a consolidation of two [2] Plots.

66. Furthermore, it was the testimony of the witness that by the time the suit properties were being allocated to the Plaintiffs, same were vacant and there were no Developments standing thereon.

67. Further and in any event, the witness added that the parcel of land was similarly not reserved for any Public purpose.

68. The second witness who testified on behalf of the Plaintiffs was one, namely, John Njagi. Same testified as PW2.

69. It was the testimony of the witness that same a Quantity Surveyor (QS); and that same is duly registered with the professional body which governs quantity surveyors. For good measure, the witness stated that his registration number is Q290.

70. Other than the foregoing, it was the testimony of the witness that same carried out and practices under the name and style of M/s Eco-space consultancy.

71. As pertains to the dispute beforehand, the witness stated that same is conversant and/or familiar with the suit. In any event, the witness stated that same had already recorded a statement on the 21st October 2021; and which same [Witness], intends to adopt and rely on as his Evidence- in- chief.

72. Pursuant to and at the instance of the witness, the Witness statement dated the 21st October 2021, was thereafter admitted the constituted as the Evidence- in -chief of the witness.

73. Other than the foregoing, the witness alluded to and identified the documents at page 59 of the Plaintiff Bundle of documents; and thereafter stated that that the said document was the Agreement of the Building contract, which was prepared in respect of the Project to be undertaken on Plots numbers LR. No. Nairobi/Block 92/313 and 314, respective.

74. Additionally, the witness testified that the named documents [ Agreement of the Building Contract], is the one that binds the contractor and the client as pertains to the project until the conclusion of the project.

75. There after the witness also alluded to the Document at page 38 of the Plaintiffs’ bundle of Documents and pointed out that the documents at the foot thereunder relates to the Bill of Quantities [BQ], in respect of the suit properties.

76. On cross examination by Learned counsel for the 1st, 2nd and 3rd Defendants, the witness herein stated that M/s Eco space consultants is a Partnership and that same [witness], is a consulting Partner with the said Organization. Nevertheless, the witness testified that same does not have any documents and/or evidence to show that he is indeed a Partner in M/s Eco space Consultancy.

77. Other than the foregoing, the witness also stated that the License Number 090, which same referred to belongs to M/s Eco space Consultancy. However the witness again stated that same does not have any document to show that the License Number 090 indeed belongs to M/S Eco space Consultancy.

78. Whilst under further cross examination, the witness testified that he (witness) has a contract of engagement with the Plaintiffs. But when prodded further, the witness beat an about-turn and stated that same did not have the Contract of engagement before the Honourable Court.

79. Other than the foregoing, it was the testimony of the witness that the Bill of Quantities [BQ], which same has produced before the Honourable court shows that same was done on behalf of M/s Geo-maps Africa; and not the Plaintiffs herein.

80. Whilst under further cross examination, the witness testified that even though the Bill of Quantities [ BQ], is between M/s Geo-maps Africa and M/s Eco pace Consultant, M/s Geo-maps Africa is however not a Party to the instant suit.

81. On the other hand, the witness also averred that prior to preparing the Bill of Quantities [BQ], same was availed various documents, inter-alia, the Architectural Drawings prepared by the Project Architect.

82. Be that as it may, when referred to the Bill of Quantities [BQ], which was prepared, the witness admitted and acknowledged that the Bill of Quantities [ BQ], was neither signed by M/s Geo-maps Africa; nor by the contractor.

83. Additionally, the witness stated that phase one [1] of the project was nearly complete. Nevertheless, the witness pointed out that even though phase one [1] was nearly complete, same (witness) does not have any Certificate issued by the Project Architect to show the status of the project or otherwise.

84. Similarly, the witness herein also stated that even though he [ witness], has alluded to various payments that were made to and in favor of the contractors, same has neither tendered nor produced any Evidence to prove the payments.

85. The Third witness who testified on behalf of the Plaintiff was Peter Kitaka Kimeu. Same testified as PW3.

86. It was the testimony of the witness, [PW 3], that same is a registered valuer and that his registration number is 317. Furthermore, the witness herein testified that same is duly authorized and licensed to practice as a valuer and in any event, that same practices as such, under the name and style of M/s Clayton Valuers Ltd.

87. On the other hand, the witness testified that same is conversant with and knowledgeable with the facts pertaining to the instant matter. In this regard, the witness ventured forward and indicated that same has recorded a witness statement in respect of the matter.

88. Furthermore, the witness stated that the witness statement alluded to is the one dated the 3rd October 2022. Consequently, the witness herein [PW3], sought to adopt and rely on the contents of the witness statement.

89. Suffice it to point out that the Witness statement dated the 3rd October 2022; was thereafter admitted and constituted as the Evidence- in- chief on behalf of the witness.

90. Other than the witness statement, the witness also testified that same also prepared a Valuation Report over and in respect of the subject matter. For coherence, the witness testified that the valuation report was in respect of L.R No’s Nairobi Block 92/313 and 314, respectively.

91. Furthermore, the witness ventured forward and testified that the valuation report, which is dated the 25th August 2022; was duly signed by himself and Peer- reviewer, namely, Frank Nzioka.

92. Besides, the witness thereafter sought to adopt and rely on the valuation report dated the 25th August 2022; as an Exhibit before the Honourable court.

93. On cross examination, by Learned counsel for the 1st, 2nd and 3rd Defendants, the witness herein, [PW3], stated that same is a qualified and registered valuer practicing under the name and style of M/s Clayton Valuers Ltd.

94. Furthermore, the witness stated that the firm of M/s Clayton Valuers Ltd was registered in the year 2010. However, the witness admitted that even though the firm was duly registered in the year 2010, same however does not have a copy of the Certificate of incorporation before the Honourable court.

95. On the other hand, though the witness stated and admitted that he is a Director in the firm of M/s Clayton Valuers Ltd, he however admitted that same has neither produced nor tendered any Evidence before the Honourable court to confirm that same (witness) is indeed a Director of M/s Clayton Valuers Ltd.

96. It was the further evidence of the witness that same was instructed by the Plaintiffs herein to undertake inspection of the suit plots and thereafter to prepare a Valuation Report. In this respect, the witness added that upon receipt of the instructions from the Plaintiffs, same proceeded to and inspected the suit properties, prior to and before venturing to prepare the valuation report.

97. Whilst still under cross examination, the witness herein [PW3], averred that when same visited the suit properties, same found the properties to be in the middle of the road. Nevertheless, the witness stated that same proceeded to and valued the suit properties, irrespective of the fact that same were sitting on a road.

98. On the other hand, the witness also testified that when he visited the suit properties, same did not find and/or see any house standing thereon. To the contrary, the witness pointed out that what he [PW3], found on the ground was a road which is being used.

99. Other than the foregoing, the witness also stated that same thereafter prepared the valuation report and that in the course of preparing the valuation report, same was availed and took into account the approved Building Plans in respect of the project. Nevertheless, the witness admitted and acknowledged that the approved Building Plans which same took into account, have neither been tendered nor produced before the Honourable Court.

100. Whilst under further cross examination, the witness averred that upon taking into account various factors which same gathered from the locus in quo [site], as well as the approved Building Plan, same (witness) proceeded to and computed the value of the suit properties at Kes.1, 000, 000, 000/= only [ Kes 1 Billion].

101. With the foregoing testimony, the Plaintiffs’ case was duly closed.

b. 1st, 2nd and 3rd Defendants’ Case: 102. The 1st, 2nd and 3rd Defendants’ herein called three [3] witnesses, namely, Wilfred Muchai, James Muturi Nyaga and Paul Owino Odak, who testified as DW1, DW2 and DW3, respectively.

103. It was the evidence of DW1 that same is currently a Principal Surveyor attached to the Directorate of Survey, which is a Department in the Ministry of Lands, Public Works, Housing and Urban Development.

104. Furthermore, the witness testified that same is a Qualified Surveyor and that he (witness) has worked with the Directorate of Survey for a duration of more than a duration of 29 years.

105. Other than the foregoing, the witness herein also testified that same is also a registered and licensed surveyor. In this respect, the witness intimated to the Honourable court that his License number is 204; and same was issued on the 8th March 2012.

106. Other than the foregoing, the witness herein stated that same is conversant with and knowledgeable of the facts pertaining to the suit properties. Furthermore, the witness also averred that same has since recorded a Witness statement dated the 31st May 2022; which same sought to adopt and to rely on as his Evidence-- in chief.

107. At the instance and request of the witness, the witness statement dated the 31st May 2022; was duly admitted and constituted as the Evidence- in -chief of the witness.

108. Other than the foregoing, the witness also alluded to the List and Bundle of Documents dated the 27th May 2022, comprising of a total of 45 documents, which the witness, [DW1], sought to produce and tender before the Honourable court.

109. In the absence of any objection by and on behalf of the Plaintiffs, the documents at the foot of the List dated the 27th May 2022, were produced and admitted as Exhibits D1 to D45, respectively on behalf of the 1st, 2nd and 3rd Defendants.

110. Additionally, the witness herein also referred to the Further List and Bundle of documents dated the 31st May 2022, comprising of 27 documents and thereafter sought to tender and produce the documents before the Honourable court.

111. Similarly and in the absence of any objection by the Plaintiffs, the documents at the foot of the said List of Documents were thereafter produced and admitted in evidence as Exhibits D46 to D72, respectively, on behalf of the named Defendants.

112. Furthermore, the witness herein also adverted to the List and Bundle of documents dated the 19th December 2022; and thereafter sought to produce the various documents alluded thereunder. Suffice it to point out that the said documents were thereafter produced and admitted as Exhibits D73 to D79, respectively.

113. Finally, the witness alluded to the List and Bundle of documents dated the 20th December 2022; and sought to produce same as Exhibits before the Honourable court.

114. Instructively, the documents at the foot of the List and Bundle of documents dated the 20th December 2022, were tendered and produced before the Honourable court as Exhibits D80 to D86, respectively on behalf of the named Defendants.

115. On cross examination, by Learned counsel for the Plaintiffs, the witness herein [DW1] averred that a Deed Plan is ordinarily prepared by either the Director of Survey or by a Licensed surveyor. However, the witness added that where the Deed Plan is prepared by a license surveyor, same has to be submitted to the Director Survey for purposes of checking, approval and authentication.

116. Furthermore, it was the testimony of the witness, [DW1], that if there is an error seen and or discerned by the Director of Survey, the Deed Plan would be returned to the Licensed surveyor who prepared same for purposes of correction/rectification.

117. Whilst still under cross examination, the witness averred that the process of preparation and authentication of a Deed Plan is a very elaborate process involving various steps, but finally rests with the Director of Survey, who is the one chargeable with authentication.

118. It was the further testimony of the witness that where there is a surrender, the Director of Survey would prepare a Deed Plan to show that indeed there was a surrender. Besides, the witness averred that the Director of Survey would ordinarily not know of a surrender.

119. Whilst under further cross examination, the witness herein testified that the Director of Survey is not consulted during the allocation of land. Further and in any event, the witness added that the person chargeable with the allocation of unalienated Government land, is the Commissioner of Lands [now defunct].

120. On the other hand, the witness herein testified that whereas the Commissioner of Land, [now defunct], was authorized to alienate Government land, the suit Plots herein were however not available for allocation.

121. It was the further testimony of the witness that most/various documents, which same has tendered before the Honourable court are actually in-house documents. However, the witness added that they are documents which are ordinarily available for inspection by any citizen subject to request.

122. On the other hand, it was also the testimony of the witness that the process of approval of a Deed Plan is similarly elaborate. Nevertheless, the witness herein testified that the Director of Survey did not revoke the Deed Plan, which was utilized to register the suit properties in favor of the Plaintiffs.

123. Whilst still under further cross examination, the witness testified that the land in question, namely, the suit properties were converted from the Registration of Titles Act to the Registered land Act, around the year 1981.

124. Nevertheless, the witness testified that what constitutes the suit properties were duly surrendered back to the Government in the year 1975.

125. Furthermore, it was the testimony of the witness that after the Surrender Deed Plan was duly prepared and same was submitted to the Director of Survey who proceeded to approve, sign and seal the same. At any rate, the witness added that the surrender Deed Plan was prepared on the 12th July 1983.

126. Finally, the witness herein testified that same is not conversant and/or familiar with the process required to be followed before allocation of land. However, the witness added that the Plaintiffs’ herein were entitled to rely on the Plans which were prepared and approved by the Director of Survey.

127. The second witness who testified on behalf of the named Defendants was James Muturi Nyaga. Same testified as DW2.

128. It was the testimony of the witness herein, that same is a Principal Physical Planner currently working with the Ministry of Lands, Housing, Public Works and Urban Development.

129. Besides, the witness herein testified that by virtue of being a Physical Planner same is conversant with and knowledgeable of matters pertaining to planning; and in particular, the issues pertaining the subject matter.

130. Other than the foregoing, the witness testified that same has recorded a witness statement dated the 31st May 2022; and which the witness sought to adopt and rely on. For coherence, the witness statement dated the 31st May 2022, was thereafter adopted and admitted as the Evidence- in- chief of the witness.

131. On cross examination by Learned counsel for the Plaintiff, the witness herein stated that in respect of paragraph 4 of his witness statement, he (witness) has confirmed that it is the Government that undertakes the process of alienation of land.

132. Whilst under further cross examination, the witness confirmed that the Letters of allotment were ordinarily being issued by the Office of the Commissioner of Lands, [now defunct].

133. Similarly, the witness herein also admitted that leases and the Certificate leases were also being processed by and on behalf of the Government. In particular, the witness confirmed that the Lease instrument would ordinarily be prepared for and on behalf of the Commissioner of land.

134. Other than the foregoing, it was the testimony of the witness that availability of land for purposes of allocation, was a process to be undertaken by the Commissioner of land.

135. Finally, the witness testified that a Part Development Plan (PDP) would ordinarily be prepared by the Director of Physical Planning, but nevertheless, same would have to be escalated and approved the Commissioner of land.

136. The 3rd witness who testified on behalf of the 1st, 2nd and 3rd Defendants was one, namely, Paul Owino Odak. Same testified as DW3.

137. It was the testimony of the witness that same is an employee of Kenya Urban Roads Authority (KURA). Furthermore, the witness also testified that same has worked with the said authority for more than 13 years.

138. Additionally, the witness testified that same is also conversant with the facts pertaining to and concerning the subject matter. Besides, the witness intimated to the Honourable Court that same has also recorded and filed a witness statement, which the witness sought to adopt and rely on as his Evidence -in-chief.

139. Suffice it to point out, that the witness statement dated the 14th December 2021; was thereafter adopted and admitted as the Evidence in chief of the witness.

140. Other than the foregoing, the witness also alluded to the Supplementary List and Bundle of documents dated the 14th December 2021; comprising of 11 Documents which the witness sought to adopt and produce before the Honourable court as further evidence on behalf of the named Defendants.

141. In the absence of any objection by Learned counsel for the Plaintiffs’, the documents under reference were duly produced and admitted as Exhibits D86 to D97, respectively, on behalf of the said Defendants.

142. On cross examination, the witness confirmed that same has tendered and produced before the Honourable court assorted Survey maps, which are duly authenticated by the Director of survey.

143. Further, the witness also added that authentication of Survey maps is the preserve and mandate of the Director of survey.

144. Whilst under further cross examination, the witness stated that once survey maps are authenticated by the Director of survey, any citizen or person is entitled to rely on the contents of such survey maps.

145. It was the further testimony of the witness that there was a surrender of the suit properties to the Government of Kenya for purposes of a road construction. In any event, the witness added that thereafter a survey was done and a Survey plan was ultimately prepared.

146. Whilst under further cross examination, the witness testified that same has been able to see copies of Letters of allotment issued in favor of the Plaintiffs herein. Nevertheless, the witness pointed out that despite the issuance of the Letters of allotment, same (witness) still contended that the issuance thereof was erroneous.

147. On the other hand, it was the testimony of the witness that L.R No. 5884/15, which was surrendered to the Government, is the same, which upon conversion, was re-assigned and renumbered as LR. No Nairobi Block 92/313 and 314, respectively.

148. Additionally, the witness herein testified that even though the suit properties were allocated to the Plaintiffs’, the land in question [ suit Properties], were not available for allocation.

149. Other than the foregoing, it was also the testimony of the witness that there were structures which were standing on the suit property. However, the witness added that the structures that were standing thereon, were demolished in the year 2003.

150. Finally, the witness herein testified that even though the structures which were standing on the suit property were demolished, same is however not aware of the nature of the structure and when same were constructed.

151. With the foregoing testimony, the 1st, 2nd and 3rd Defendants case was duly closed.

c. 4th Defendant’s Case: 152. Though the 4th Defendant herein was duly served with the amended Plaint and the Further amended Plaint, respectively, same however failed to enter appearance and/or file any Statement of Defense or at all.

153. Furthermore, the 4th Defendant herein similarly did not participate in the proceedings. Consequently and in this regard, no Evidence [whether oral or documentary] was ever tendered by and on behalf of the 4th Defendant.

154. Arising from the foregoing, the 4th Defendant’s case was therefore closed without any evidence being tendered.

Submissions by the Parties: 155. At the conclusion of the 1st, 2nd and 3rd Defendants case, the advocates for the respective Parties, namely, [the Advocates for the Plaintiffs’ and the 1ST ,2ND and 3RD Defendants, respectively], covenanted to file and exchange written submissions. Consequently and in this regard, same thereafter proceeded to and indeed filed their respective written submissions.

156. Instructively, the Plaintiffs’ filed written submissions dated the 12th September 2023; and wherein same has highlighted five [5] issues for due consideration by the Honourable court.

157. For coherence, the issues highlighted by the Plaintiffs herein are, inter-alia, whether the Plaintiffs had a good title over the suit properties; whether the Plaintiffs’ were guilty of corruption, misrepresentation or fraud during the acquisition of the suit properties; whether the Plaintiffs’ proved their claim for compensation and damages; and if so, the quantum thereof; and finally whether the Defendants’ proved their counter-claim.

158. On the other hand, the 1st, 2nd and 3rd Defendants filed written submissions dated the 29th September 2023; and same have highlighted two [2] issues for determination, namely, whether the Plaintiffs’ lawfully acquired the title over and in respect of the suit properties, or otherwise; and whether the Plaintiffs’ are entitled to the reliefs sought at the foot of the Further amended Plaint.

159. Notably, the various submissions filed by and on behalf of the respective Parties forms part of the record of the Honourable court and same shall be duly considered and taken into account whilst crafting the Judgment herein; and in particular, making the relevant determination[s].

160. Nevertheless, it is instructive to point out that Learned counsel for the Plaintiffs’ and the 1st, 2nd and 3rd Defendants herein, indeed filed elaborate and well research submissions, which certainly [and no doubt], will enrich the Judgement herein.

161. Be that as it may, it is also important to point out that even though the court has not rehashed the submissions filed by either Party, same have however, been given due consideration and the Honourable court is hugely grateful to the respective advocates for the quality submissions and the case-law cited.

Issues For Determination: 162. Having reviewed the Pleadings filed by and on behalf of the Parties; and having taken into account the Evidence tendered [both oral and documentary], and finally having considered the written submissions filed by the respective advocates, the following issues do emerge and are thus worthy of determination;i.Whether the Plaintiffs’ herein acquired lawful titles to and in respect of the suit properties or otherwise.ii.Whether the Plaintiffs’ are entitled to the Reliefs sought at the foot of the Further amended Plaint or any portion thereof or at all.iii.What orders, if any; are appropriate, mete and expedient in the circumstances of the case.

Analysis And Determination Issue Number 1 Whether the Plaintiffs’ herein acquired lawful titles to and in respect of the suit properties or otherwise. 163. Before venturing to address and resolve the issue herein mentioned, it is imperative to state and underscore that the Plaintiffs’ herein seek applied to be allocated two sets of properties, namely, L.R No’s Nairobi Block 92/231 and 281; and L.R No. 5884/15, respectively.

164. Instructively, the Plaintiffs’ principal witness, namely, Lenny Maxwel Kivuti (PW1) tendered before the Honorable court copies of the Letters relating to the application for allotment of the various properties, [whose details have been alluded to in the preceding paragraphs]. For good measure, the two letters, which are dated the 3rd December 1998, respectively, were duly produced before the Honourable court as Exhibits P1 and P2, respectively.

165. Furthermore, it was also the testimony of PW1 that upon applying to be allocated the named properties, [whose details are alluded to on the face of the letters], the Commissioner of Land duly appraised the application for allotment and thereafter honored the applications by issuing two sets of Letters of allotment dated the 17th December 1998, respectively. Instructively, the two sets of letters of allotment were thereafter tendered and produced before the Honourable court as further evidence on behalf of the Plaintiffs’.

166. Additionally, PW1 ventured forward and testified that upon being issued with a Letter of allotment, namely, the Letters of allotment dated the 17th December 1998, the 3rd Plaintiff who was the allottee proceeded to and indeed made payments vide Bankers cheques dated the 16th June 2000, to and in favor of the Commissioner of lands [now defunct].

167. Subsequently, the witness, namely, PW1 also testified that at the time when the 3rd Plaintiff made the payments to and in favor of the office of the Commissioner of lands, same simultaneously applied for consolidation and amalgamation of the two [2] Plots, namely, L.R No’s 231 and 281, respectively.

168. Other than the foregoing, PW1 proceeded to and tendered evidence that after due process was complied with, the Commissioner of lands, ultimately generated and issued the requisite Leases, which were eventually registered culminating into the issuance of the Certificate of leases in respect of L.R No’s Nairobi Block 92/313 and 314, respectively [which are the suit properties herein].

169. Arising from the foregoing, PW1 contended that the allocation, transfer and ultimate registration of the suit properties to and in favor of the Plaintiffs herein, was therefore lawful, legal and procedural and in this regard, the Plaintiffs’ therefore acquired lawful and legitimate title[s] to and in respect of the suit properties.

170. Notwithstanding the foregoing, PW1 contended that on or about the year 2003, the Government of Kenya published in the daily Nation that the constructions which were being undertaken on the suit properties were illegal and unlawful and in any event, were being undertaken on Public Land reserved for a construction of a road.

171. Other than the foregoing, PW1 also testified that prior to and before the publication of the foregoing allegations, the Government of Kenya had neither sought for nor summoned the Plaintiffs’ herein to prove the legitimacy and/or validity of their Titles to the suit properties.

172. Despite the foregoing, PW1 contended that the suit properties were lawfully and legally alienated by the Commissioner of Lands, [now defunct], following the surrender of the suit properties back to the Commissioner of land for purposes of re-planning and re-allocation. In this regard, the Plaintiffs’ through PW1, contended that the Plaintiff’s title to the suit properties were lawfully and legitimately acquired.

173. On the contrary, the 1st, 2nd and 3rd Defendants have taken the position that what constitutes and comprises of the suit properties, was hitherto part and parcel of L.R No. 5884/15, which was land that had been compulsorily acquired by the Government of Kenya for purposes of construction of a road.

174. Furthermore, the 1st, 2nd and 3rd Defendants also contended that arising from compulsory acquisition L.R No. 5884/15, was duly surrendered to the Government of the Republic of Kenya and the Surrender was duly approved and registered. In this regard, the 1st, 2nd and 3rd Defendants have therefore averred that what comprises of the suit properties was therefore land acquired and reserved for the construction of a road.

175. On the other hand, the 1st, 2nd and 3rd Defendants have also averred that insofar as what comprises of the suit properties (which was hitherto) part of L.R No. 5884/15 had been acquired and reserved for a designated purpose, namely, construction of a road; same was therefore not available for allocation or alienation by the Commissioner of lands, or at all.

176. Based on the position that what comprises of the suit properties had been acquired and reserved for a designated purpose, the 1st, 2nd and 3rd Defendants have therefore urged a position that the suit properties were therefore alienated Government land, [as opposed to unalienated government land], which could be allocated by the Commissioner of lands (now defunct).

177. Having taken cognizance of the rivaling position held by the respective Parties, it is now appropriate to interrogate the facts and the evidence, which have been placed before the Honourable court, with a view to ascertaining whether the allocation, alienation and ultimate registration of the suit properties to and in favor of the Plaintiffs, was lawful and legitimate.

178. Put differently, it is now appropriate to ascertain and decipher whether the Plaintiffs’ herein acquired lawful title to and in respect of the suit properties, taking into account the totality of the evidence tendered and availed to the Honourable court.

179. Towards and in a bid to answer the issue herein, I shall endeavor to approach the question in a segmented manner, taking into account various facets/various perspectives that are discernable.

180. Firstly, it is important to appreciate that a Letter of allotment is merely an offer by the Government through the Commissioner of lands, [now defunct], to a particular allottee and wherein the Government is offering to allocate the designated Plot, albeit on certain terms and conditions.

181. Furthermore, there is no gainsaying that before the Letter of allotment can be deemed to constitute a lawful offer, which is binding on the Government, through the Commissioner of lands, the impugned Letter of allotment must be duly signed and executed by the authorized and/or designated officer.

182. For coherence, the Letter of allotment seeking to allocate and/or alienate Government land pursuant to the provisions of the Government Lands Act, Chapter 280 Laws of Kenya (now repelled), would require that same be signed by the Commissioner of lands or such other authorized officer acting under the lawful authority of the Commissioner of lands, [ now defunct].

183. Premised on the foregoing, it is therefore common ground that before an allottee can venture forward and endeavor to act upon the terms and conditions contained at the foot of the Letter of allotment, same must confirm that the Letter of allotment is duly executed and/or signed by the requisite/ authorized officer.

184. To this end, it was therefore incumbent upon the Plaintiffs’ herein to proffer and place before Honourable court the duly executed and signed Letters of allotment confirming that the Government of the Republic of Kenya, truly and lawfully made an offer to the Plaintiffs’.

185. However, it is not lost on this Honourable court that even though the Plaintiffs’ tendered before the court two [2] sets of Letters of allotment both dated the 17th December 1998, it is instructive to note and observe that the two [2] sets of letters of allotment, which were tendered to court at the foot of the List and Bundle of documents dated the 29th November 2021, did not bear the page and/or segment carrying the signature of (sic) the Commissioner of Land(s), or such other designated person, acting under lawful authority of the Commissioner of land.

186. In the absence of the signature page and/or portion, one wonders whether the impugned letters of allotments were lawfully and legitimately issued; and if so, why have the Plaintiffs’ failed to avail the complete set of the Letter of allotment inclusive of the signature page.

187. To my mind, a document can only be legal and lawful and thus capable of being acted upon, if same, has been duly signed. Nevertheless, in respect of the Letter of allotment that was placed before this Honourable court same have neither been duly signed nor executed; or better still, the relevant portion bearing the signature has not been adduced.

188. In this respect, it is therefore my finding and holding that the impugned letters of allotment, which were tendered before the Honourable court are certainly illegitimate and thus devoid of any probative value or at all.

189. Put differently, the impugned Letters of allotment, [which do not have the signature portion], constitutes and amounts to worthless pieces of paper which cannot be deemed to constitute valid and lawful offers by and on behalf of the Government of Kenya (sic) through the Commissioner of lands (now defunct).

190. The second facet and/or perspective that merits mention and due consideration, relates to the aspect of whether, [if at all], the terms of the Letters of allotment were duly complied with; and if not, what is the legal consequence of a failure to comply with the terms of (sic) Letter of allotment.

191. Without prejudice to the finding and holding that the impugned Letters of allotment were invalid for want of signature/execution, it is also important to observe that Letters of allotment ordinarily require the allottee, [the Plaintiffs’ herein not excepted] to issue and generate a letter of acceptance, which no doubt, must be issued and submitted to the Commissioner of land within 30 days of the postmark.

192. In respect of (sic) the impugned Letters of allotment, it is evident that same were issued on the 17th December 1998; and hence it was incumbent upon [sic] the allottees, namely, the Plaintiffs’, to accept the terms and conditions within a duration of 30 days w.e.f 17th December 1998.

193. In my humble, albeit considered view, the 30 days duration within which the allottee ought to have accepted the terms and conditions lapsed and/or expired on or about the 16th January 1999 and not otherwise.

194. However, even assuming that the 30-day period would be subject to the exemption of time provided for by dint of the provisions of Section 57 and 58 of the Interpretation & General Statutes Act, Chapter 2 Laws of Kenya, [which is not the case], the timeline for accepting the terms of the letter of allotment would stand lapsed and/or extinguished at the very latest on or about the 13th February 1999.

195. Irrespective of the perspective and/or angle applied towards the computation of time, it is common ground that the term of the impugned letters of allotment lapsed and/or stood extinguished long before same could be accepted.

196. Notwithstanding the foregoing, it is also worthy to state and underscore that PW1 did not tender before the Honourable court any evidence of Letter of acceptance or at all. Instructively, the letter dated the 16th June 2000; was not an acceptance letter or at all.

197. Nevertheless, even if for the sake of arguments, one would want to deem the letter dated the 16th June 2000, [which seeks merely forwarded (sic) some bankers cheques as an acceptance letter (which is not the case)], it would still turn out that the impugned letter was made long after the Letter of allotment had expired and/or stood extinguished.

198. Consequently and in this regard, it is my finding and holding that once the Letter of allotment expire and/or stand extinguished by effluxion of time, such a Letter of allotment, can no longer be acted upon or otherwise.

199. To this end, it suffices to adopt and reiterate the holding of the Court in the case of Syedna Mohammed Burhannuddin Saheb & 2 Others V Benja Properties Ltd & 2 Others [2007] eKLR, where the court held thus;“In any event, the letter of allotment relied upon by the Defendant had itself expired, and was therefore invalid. I do not accept Mr. Kirundi, Counsel for Defendant’s argument, that the expired letter, when acted upon, had been “revived” through conduct. The letter had expired. It was dead. There was nothing to “revive”.

200. As pertains to the second facet herein, I come to the conclusion that even assuming that the letters of allotment contained the signature page and were duly executed, [which is not the case], same would still be invalidated on the basis of lapse of time, which ipso facto, renders the letter of allotment otiose.

201. The third perspective/ facet that also merits deliberation touches on and concerns whether or not the allotees, in this case, [the Plaintiffs], made the requisite payments as enumerated at the foot of the impugned letters of allotment within the stipulated timelines or at all.

202. As concerns the question of payments, it is imperative to recall that PW1 testified to the court that upon the issuance of the impugned letters of allotment, the 3rd Plaintiff, who was the allottee, generated bankers cheques dated the 16th June 2000, which were thereafter (sic) forwarded to the Commissioner of lands, [ now defunct].

203. Furthermore, PW1 also contended that after procuring and obtaining the bankers cheques dated the 16th June 2000, same were forwarded/transmitted to the Commissioner of land vide letters dated the same date.

204. Nevertheless, it is worthy to note that even though PW1 contended that the bankers cheques were paid to and in favor of the Commissioner of lands, [now defunct], no receipt was however tendered and/or produced before the court, to attest to the fact that the Commissioner of lands, [now defunct], indeed received (sic) the impugned payments.

205. Suffice it to point out that it was the obligation and/or duty of the Plaintiffs herein to place before the Honourable court plausible and cogent evidence to prove the fact that the statutory levies, inter-alia, stand premium were indeed paid within the statutory 30 days period.

206. Unfortunately, the Plaintiffs’ herein failed to place before the Honourable court any credit worthy evidence towards establishing and demonstrating that indeed same timeously met and/or satisfied the conditions as pertains to the payments of the statutory levies, or at all.

207. Consequently, the question that does arise is what then is the legal import/ consequence of the failure to make the requisite payment within the stipulated timeline.

208. Notably and in my humble view, the failure to make the statutory payment within the set/prescribed timelines, renders the impugned Letter of allotment (assuming that same were valid), otiose; and hence same stands extinguished. In short, the Letters of allotment that were/ are being relied upon by the Plaintiffs’ were rendered redundant by operation of the law.

209. To buttress the foregoing observation it is important to take cognizance of the holding of the Supreme Court of Kenya in the case of Torino Enterprises Limited versus Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment), where the court held as hereunder;“Suffice it to say that an Allottee, in whose name the allotment letter is issued, must perfect the same by fulfilling the conditions therein. These conditions include but are not limited to, the payment of a stand premium and ground rent within prescribed timelines. But even after the perfection of an allotment letter through the fulfillment of the conditions stipulated therein, an allottee cannot pass valid title to a third party unless and until he acquires title to the land through registration under the applicable law. It is the act of registration that confers a transferable title to the registered proprietor, and not the possession of an allotment letter”.While we agree with the general tenor of the learned Judge’s foregoing pronouncement, we remain uncomfortable with his inference that the allotment letter was of no legal consequence solely because it had lapsed after 30 days. We must reiterate the fact that an allotment letter in and by itself, is incapable of conferring a transferable title to an Allottee. Put differently, the holder of an allotment letter is incapable of transferring or passing valid title to a third party on the basis of the allotment letter unless and until he becomes the registered proprietor of the land consequent upon the perfection of the Allotment Letter. It matters not therefore that the allotment letter has not lapsed.

210. Duly nourished by the ratio decidendi obtaining in the decision [supra], there is no gainsaying that the failure to comply with the terms and conditions of the Letter of allotment; and in particular, paying the statutory levies within the set timeline, renders the impugned letter of allotment inoperative and redundant.

211. In a nutshell, even assuming that the letters of allotment in question were valid (which is not the case), I would still come to the conclusion that by the 16th June 2000, when the Plaintiffs purported to pay the statutory levies, there was no letter of allotment [ Offer], capable of attracting such payments or at all.

212. The fourth facet [perspective], that is also worthy of discussion, touches on and/or concerns whether the land comprising of the suit properties was available for allocation or alienation in the first place.

213. Instructively, what comprises the suit properties was hitherto part of L.R No. 5884/15, which was land that was compulsorily acquired by the Government of Kenya for purposes of the construction of a road.

214. Similarly, evidence abound that upon the compulsory acquisition L.R No. 5884/15 [which upon conversion from Registration of Titles to the Registered Land Ac], became re-numbered and thus leading to the suit properties, was thereafter surrendered to the Government and the surrendered instrument was duly registered.

215. Furthermore, even though PW1, contended that L.R No. 5884/15 which comprises of the suit property was subsequently surrendered to the Commissioner of land (sic) for purposes of re-planning and reallocation, same (PW1) neither tendered before the court any evidence of a Surrender document, Part Development Plan [PDP], or a Deed Plan underpinning the fact that the land which had been surrendered for a designated purposes was now being made available for alienation by [sic] the Commissioner of land.

216. At this juncture it is instructive to take cognizance of the evidence of PW1 whilst under cross examination by the Learned Principal Litigation counsel as hereunder;“I am aware that L.R No. 5884/15 was surrendered for purposes of reallocation. The land had previously been acquired by the government for a road construction. However, in 1998 the land was surrendered back to the commission of land for re-planning and allocation for other purposes. The land was surrendered in the year 1998. However, I don’t have any surrender documents in respect of the suit property”.

217. For the avoidance of doubt, if for any reason L.R No. 5884/15, which now comprises of the suit property was to be rendered available for reallocation and re-alienation or at all, there would be a new Deed of surrender to be prepared, executed and registered, which was not the case.

218. Additionally, it would also be incumbent upon the Director of Physical Planning to generate Part Development Plan (PDP) to show that the land in question which had hitherto been designated for a particular public purpose was (sic) now available for re-alienation or allocation. However, yet again no such Part Development Plan [PDP], was ever tendered and/or produced before the Honourable court.

219. On the other hand, it is also important to point out that the Deed of surrender, if any, reverting the land for purposes of (sic) alienation by the Commissioner of land, would equally need to be preceded by the preparation of a Deed Plan by the Director of Survey, which was not the case.

220. Arising from the foregoing, it is therefore common ground; and Pw1 confirmed that what comprises of the suit property had been compulsorily acquired by the Government for purposes of a road construction and a Deed of surrender to that effect was registered.

221. Pertinently, the land which was purportedly being allocated or alienated in favor of the Plaintiffs, culminating into the issuance of the Certificate of leases underpinning the suit titles, was not unalienated Government land.

222. Conversely, what comprises of the suit properties, which were (sic) being alienated to the Plaintiffs was already acquired and reserved for a designated purpose, namely, construction of a road.

223. For the avoidance of doubt, it is common knowledge that ultimately the Government of the Republic of Kenya constructed the Redhill Link Road which by-passes the suit properties and which is admittedly in use.

224. Quiet certainly, the purpose for which L.R No. 5884/15 [now comprising the suit properties], was acquired for remained alive and ultimately materialized upon the construction of the road. Consequently, it cannot be said that the public purpose for which the land was acquired dissipated.

225. Without belaboring the point, it suffices to point out that what constitute the suit properties was already alienated Government land reserved for other purposes and could not be allocated or at all. [See section 2 of the Government Land Act, now repealed].

226. To buttress the foregoing position, it is suffices to adopt, restate and reiterate the succinct holding in the case of Benja Properties Limited versus Syedna Mohammed Burhannudin Sahed & 4 others [2015] eKLR, where the Court of Appeal stated as hereunder;22. The foundation of the appellant’s claim is that the Commissioner of Lands allotted the suit land to the original four allottees who subsequently sold it to the appellant. This may be so; however, the legal question is, was there unalienated government land capable of being allotted to the original four allottees? The trial judge answered this question in the negative. We concur with the court’s finding. The 1st, 2nd and 3rd respondents’ title to the suit property has its root of title to a grant and title issued in 1907 and 1911. By various deeds of assignment the 1st respondent became the registered proprietor of LR No. 209/136/269 registered in 1911 as N64 428/1 20772 while the 2nd and 3rd respondents are registered proprietors of LR No. 209/136/239 registered in 1907 as N64 425/1 20769. 22. The legal effect of the registrations made in 1907 and 1911 was to convert the suit property at that time from un-alienated government land to alienated government land with the consequence that the suit land became private property and moved out of the ambit and confines of the GLA. This made the suit property unavailable for subsequent allotment and alienation by the Commissioner of Lands or the President of Kenya. The appellant’s title to the suit property was thus anchored on land that was not unalienated government land. We concur with the trial judge’s finding that “the suit land having been owned privately was not GLA land, and was not available for alienation. Its alienation was illegal and void ab initio.”

227. Furthermore, the legal position that land which has already been reserved for a designated public purpose, ceases to be unalienated Government land and thus not available for alienation was also highlighted and amplified in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) (Judgment), where the court stated and observed as hereunder;101. The suit property was at the time designated as an open space. Having been designated as such, it was rendered a public utility and could not be described as unalienated public land as urged by the appellant. It was therefore not available for alienation to H. E. Daniel T Arap Moi or for further alienation.102. The Court of Appeal in its judgment, while finding that the title was irregularly and illegally allocated to H.E. Daniel T. Arap Moi was persuaded by the High Court decision in Republic v. Minister for Transport & Communication & 5 Others Ex Parte Waa Ship Garbage Collector & 15 Others Mombasa HCMCA No. 617 of 2003 [2006] 1 KLR (E&L) 563 where Maraga J. (as he then was) stated as follows:“Courts should nullify titles by land grabbers who stare at your face and wave to you a title of the land grabbed and loudly plead the principle of the indefeasibility of title deed...It is quite evident that should a constitutional challenge succeed either under the trust land provisions of the Constitution or under section 1 and 1A of the Constitution or under the doctrine of public trust a title would have to be nullified because the Constitution is supreme law and a party cannot plead the principle of indefeasibility which is a statutory concept.”

228. In view of the discourse surrounding the foregoing issue, there is no gainsaying that what comprises the suit properties, was land that was compulsorily acquired by the Government for purposes of a road construction; and insofar as same was acquired for a designated Public use, same was not therefore available to be allocated either to the Plaintiffs’ herein or at all.

229. Consequently, by [sic] allocating the suit properties, the Commissioner of lands (now defunct) purported to arrogate unto himself powers that do not accrue to his office; and hence, any action taken in such a scenario becomes technically a nullity and cannot be relied upon to found a claim or at all.

230. To this end, the ratio decidendi in the case of Embakasi Properties Limited & another v Commissioner of Lands & another [2019] eKLR, is succinct, instructive and apt.

231. For coherence, the Court of Appeal stated and held thus;“In the case of Said Bin Seif V. Shariff Mohammed Shatry, (1940)19 (1) KLR 9, it was stated that an action taken by the Commissioner without legal authority is a nullity; that such an action, however, technically correct, remains a nullity, and not only voidable but void with no effect.

232. Perhaps, before departing from this facet, it is also important to point out that insofar as the suit properties were not available for allocation and/or alienation, then whatever transpired, inter-alia the issuance of the impugned Letter(s) of allotment, the lease instrument and ultimately the certificate of lease, were thus issued in vacuum or out of nothing.

233. Consequently and in view of the foregoing, it is therefore noteworthy to invoke and apply the Doctrine of Ex-Nihilo-Nihil-Fit (out of nothing comes nothing).

234. In respect of the foregoing Doctrine, it suffices to cite and adopt the dictum of the Court of Appeal in the case of Caroget Investment Limited versus Aster Holdings Limited & 4 others [2019] eKLR, where the court held thus;“The totality of what we have said is that the 1st respondent’s title was unimpeachable while that of the appellant was tainted with fraud, illegalities and irregularities. The lightning speed with which the entire transaction was executed, from the moment the suit property was transferred to the appellant to the point it was set to sell it to White Horse Investment Limited, all within four months, smacked of fraud, bad faith and deceit. From the Council to the appellant and from the appellant to White Horse no title could be passed because ex nihilo nihil fit – out of nothing comes nothing”.

235. The last facet/ perspective that similarly merits a short discussion, touches on and concerns the validity of the Certificate of leases upon which the Plaintiffs’ herein anchor and underpin their claim to the suit properties.

236. Instructively, it is worthy to note that before one can attract and obtain a proclamation [verdict], pertaining to the validity of the certificate of title held, same must be able to establish and demonstrate that the impugned Certificate of title was acquired procedurally, legally and in a lawful manner.

237. Put differently, where it transpires that the impugned title was procured and obtained un-procedurally, unlawfully and illegally, then the beneficiary of the impugned certificate of title cannot purport to claim indefeasibility of title or at all. Indeed such kind of a title does not attract and/or accrue the statutorily sanctions/ privileges vide the provisions of Section 24 and 25 of the land Registration Act, 2012; of at all.

238. Additionally, there is no gainsaying that a Certificate of title which is acquired unlawfully and illegally cannot not vest and/ or confer in [sic] the beneficiary thereof, the benefits attendant to and underpinned by the provisions of Article 40(6) of the Constitution 2010, whatsoever.

239. Other than the foregoing, it is also trite and established that where a Certificate of title is under challenge, [like the ones beforehand], then it is not enough for the holder of the impugned title (read the Plaintiffs), to wave the Certificate of title and contend that same were issued by the Commissioner of land, who was (sic) acting on behalf of the Government.

240. To the contrary, it behooves the beneficiary of such a Certificate of title, [the Plaintiffs’ herein not excepted] to place before the Honourable court the foundational material upon which the Certificate of title was procured and/or obtained.

241. Simply put, it was incumbent upon the Plaintiffs’ herein to justify the means and mechanism upon which the impugned Certificate of titles were issued and not otherwise. Instructively, it was not enough for the Plaintiffs’ to merely contend as PW1 stated whilst under cross examination.

242. For ease of reference, PW1 stated thus;“The land in question was duly allocated to me by the commissioner of lands. It was the duty of the commissioner of lands to verify and ascertain whether the land was available before the issuance of the letter of allotment”

243. In my humble, albeit considered view, such a perfunctory statement, by and on behalf of the Plaintiffs’, does not avail on the face of the various improprieties and illegalities attendant to the impugned Certificate of titles.

244. In this respect, it is worthy to draw the attention of the Plaintiffs’ and by extension their Legal counsel, to the holding of the Court of Appeal in the case of Munyu Maina versus Hiram Gathiha Maina [2013] eKLR, where the court stated and observed as hereunder;“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony. We find that a trust exists in relation to the suit property”.

245. To surmise, it is my finding and holding that taking into account the various perspective/nuances [facets], that have been deliberated upon, it is evident that the Plaintiffs did not procure, acquire and/or obtain lawful titles to the suit properties or at all.

Issue Number 2 Whether the Plaintiffs’ are entitled to the Reliefs sought at the foot of the Further amended Plaint or any portion thereof or at all. 246. Though PW1 herein testified and thereafter invited the Honourable court to grant the reliefs at the foot of the amended Plaint dated 17TH September 2021; [ for good measure, by the time PW1 testified, the Further amended Plaint had not been filed], it is instructive to note that ex-post the testimony of PW1, the Plaintiffs herein sought for and obtain Leave to file a Further amended Plaint.

247. Further and in addition, it is important to underscore that the Plaintiffs’ thereafter proceeded to and filed the Further amended Plaint dated the 3rd October 2022; which is thus the operative pleading driving the claims by and on behalf of the Plaintiffs’.

248. At the foot of the Further amended Plaint dated the 3rd October 2022, the Plaintiffs’ have sought for a plethora of reliefs, inter-alia, declaration that the 1st and 2nd Plaintiffs’ are the lawful and legitimate proprietors of the suit properties.

249. On the other hand, the Plaintiffs’ have also sought for a declaration that the actions and/or activities by the Defendants, namely, the invasion of the suit properties, amounted to and constitutes violation, infringement and or contravention of the Plaintiffs Fundamental Rights and Freedoms.

250. In answer to the foregoing prayers, it is instructive to point out that this Honourable court has since come to the conclusion that the titles to the suit properties were procured and obtained un-procedurally, unlawfully and illegally.

251. Consequently and in view of the foregoing, it is common ground that the impugned declaratory orders/ Reliefs cannot therefore issue and/or be granted in favor of the Plaintiffs herein.

252. Furthermore, the Plaintiffs herein also sought for recompense on account of the value of the suit properties which was stated to amount to Kes.1 Billion only [Kes. 1,000,000,000 only].

253. My short answer to the claim for compensation on the basis of the value of the suit properties is to the effect that the Plaintiffs’ herein did not acquire any valid or lawful title over and in respect of the Suit Properties capable of attracting compensation.

254. Secondly, it is also imperative to note that what comprises of the suit properties had hitherto been compulsorily acquired by the Government of Kenya for purposes of construction of a road, namely, the Redhill Link Road. In this respect, the land lawfully belongs to the Government and hence the Government cannot payout Kes. 1, 060, 000, 000/= only, in respect of her [Government] own property or at all.

255. The other relief that has also been sought by the Plaintiffs herein related to payment of the sum of Kes.325, 000, 000/= only which was said to have been paid to various contractors, as well as Professionals, who were [sic] retained towards the project that was being undertaken on the suit properties.

256. Nevertheless, even though the Plaintiffs’ sought for the sum of Kes.325, 000, 000/= only on the basis of the contract which was (sic) awarded to various contractors, the documents which was tendered before the Honourable court to anchor the said claim was essentially between M/s Geo-maps Africa, as the client and M/s Eco space Consultants as the contractor.

257. However, there is no gainsaying that M/s Geo-maps Africa which was (sic) entering into the contract underpinning the claim for Kes.325, 000, 000/= only, is not a Party to the instant suit and hence a Contract [sic] entered into by same cannot underpin an award in favour of the Plaintiffs’ herein.

258. Furthermore, it is also not lost on the Honourable court that the impugned documents, namely, the contract and the Bill of Quantities from which the claim of Kes.325, 000, 000/= only, is anchored was neither signed the Employer/Client nor the contractor.

259. Consequently, even if the impugned contract and the bill of quantities[ BQ], had been done in the names of the Plaintiffs’ herein, [which is not the case], the lack of signature/execution therein, would render same invalid and of no probative value.

260. On the other hand, the Plaintiffs’ herein also sought for the sum of Kes. 293, 474, 958/- Only, on account of liabilities due and payable to contractors. Nevertheless, it is common ground that the contractors, if any, were engaged by M/S Geo-maps Africa which is a different Legal entity and/or personality from the Plaintiff herein.

261. Further and at any rate, it is also worth recalling that neither PW1 nor PW2 was able to demonstrate that there were any liabilities which were owing and payable to any contractor at all.

262. For ease of reference, PW2 whilst under cross examination by Learned counsel for the 1st, 2nd and 3rd Defendants conceded that same had no evidence to support the figures alluded to at the foot of paragraphs 12 and 13 of his witness statement, which essentially underpins the purported claims of liabilities due to and in favor contractors.

263. Furthermore, the Plaintiffs’ herein also sought to recover the sum of Kes.600, 000/= only which was allegedly paid on account (sic) resettlement of the squatters. Nevertheless, two [2] things do arise. Firstly, no evidence was tendered before the Honourable court that there was any squatters sitting on the suit properties.

264. Secondly, PW1 admitted whilst cross examination by Learned counsel for the 1st, 2nd and 3rd Defendants that same had neither tendered nor produced any documentary evidence/receipts to anchor the said claim for resettlement of the said squatters.

265. Lastly, the Plaintiffs’ herein had also sought for damages in such sum as the court will determine for Defamation. However, it suffices to underscore that claims pertaining to and concerning Defamation do not fall within the Jurisdictional mandate of the Environment and Land Court. [See Article 162(2) (b) of the Constitution 2010].

266. In a nutshell, I come to the conclusion that the various and/or diverse reliefs which were sought at the foot of the Further amended Plaint dated the 3rd October 2022; are not only misconceived, but same are legally untenable.

267. Simply put, my answer to issue number two [2], is to the effect that the Plaintiffs’ herein are not entitled to any singular reliefs and/or prayer which was enumerated at the foot of the Further amended Plaint.

Issue Number 3 What orders, if any, are appropriate, mete and expedient in the circumstances of the case. 268. Having come to the conclusion that the Plaintiffs’ herein are not entitled to any singular reliefs sought for at the foot of the Further amended Plaint and having similarly found and held that the certificate of titles currently in the names of the 1st and 2nd Plaintiffs, were procured illegally and unlawfully; the questions that now remain to be dealt with; is what next.

269. To this end, can the certificate of titles, currently in the names of First and Second Plaintiffs’ remain, despite the findings by the Honourable court that same are ex-facie illegal and thus a nullity ab-initio.

270. To my mind, once the court finds and holds that the impugned titles are a nullity, then it behooves the Honourable court to venture forward and to nullify same, to avert any subsequent mischief anchored and/or premised on the impugned Certificate(s) of titles.

271. Consequently and in the circumstances, it therefore falls within the inherent, intrinsic and residual powers of the Honourable court to make such orders as may be deemed expedient and just and more particularly, which shall serve the ends of Justice.

272. To be able to understand the import, tenor and scope of the inherent Jurisdiction of a court, it suffices to take cognizance of the elaborate exposition of the law by the Supreme Court of Kenya in the case Narok County Government versus Livingstone Kunini Ntutu & 2 others [2018] eKLR, where the court held thus;(97)We furthermore note that Jerold Taitz succinctly describes the inherent jurisdiction of the Supreme Court as follows in his book, ‘The Inherent Jurisdiction of the Supreme Court’ (1985) pp 8-9: “. . .This latter jurisdiction should be seen as those (unwritten) powers, ancillary to its common law and statutory powers, without which the Court would be unable to act in accordance with justice and good reason. The inherent powers of the Court are quite separate and distinct from its common law and its statutory powers, eg in the exercise of its inherent jurisdiction the Court may regulate its own procedure independently of the Rules of Court.”(98)Back home, the Court of Appeal in addressing the point at hand in Kenya Power & Lighting Company v Njumbi Residents Association & another [2015] eKLR cited Ouko J (as he then was) In the matter of the Estate of George M’Mboroki, Meru HCSC No. 357 of 2004 and aptly put it that;“… the Court retains certain intrinsic authority in the absence of specific or alternative remedy, a residual source of power, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular, to ensure the observance of the due process of the law, to prevent abuse of process to do justice between the parties”.(99)Further in Benjoh Amalgamated Limited & another v Kenya Commercial Bank Limited [2014] eKLR the Court of Appeal set out the principles to guide the Court in exercising inherent jurisdiction in these words;“The jurisprudence that emerges from the case-law from the aforementioned jurisdictions shows that where the Court is of final resort, and notwithstanding that it has not explicitly been statutorily conferred with the jurisdiction to reopen a decided matter, it has residual jurisdiction to do so in cases of fraud, bias, or other injustice with a view to correct the same and in doing so the principles to be had regard to are, on the one hand, the finality principle that hinges on public interest and the need to have conclusiveness to litigation and on the other hand, the justice principle that is pegged on the need to do justice to the parties and to boost the confidence of the public in the system of justice. As shown in the various authorities, this is jurisdiction that should be invoked with circumspection…” (Emphasis added.)[100]The conclusion drawn from the above citations is that this Court, indeed any other appellate Court, even where there are no specific provisions to do an act, has inherent and/or residual powers to act in a fair or equitable manner in the interest of justice and/or to ensure the observance of the due process of the law. Therein also lies the power for the Court to act to prevent abuse of Court process by one party so that fairness is maintained between all parties.

273. Inspired by the dictum in the case (supra), there is no gainsaying that this Honourable court and any other court, subject to the constitution and the constitutive statutes are vested with inherent and intrinsic Jurisdiction, which can be relied upon to ensure that the ends of Justice are achieved and/or attained.

274. In short, having come to the conclusion that the impugned Certificate of titles are ipso facto illegal and a nullity, the court cannot thus abdicate from making a pronouncement that cancels and/or invalidates the impugned titles.

275. Further and in any event, a failure to revoke and nullify the impugned Certificate of titles, would amounts to and/or constitute dereliction of Constitutional mandate and violation of the Doctrine of Public Trust, which calls upon Public Officers, Judges and Judicial officer not excepted, to protect Public Properties for posterity.

Final Disposition: 276. Arising from the discourse [whose details are well elaborated in the preceding paragraphs], it must have become crystal clear that the Plaintiffs herein have neither established nor proved their claims to the requisite standards. [See Sections 107, 108 and 109 of the Evidence Act, Chapter 180 Laws of Kenya].

277. Consequently and in the premises, I find and hold that the Plaintiffs’ case is devoid and bereft of merits and thus same be and is hereby Dismissed.

278. Nevertheless and for the sake of brevity, I proceed to and Do hereby make the following orders;i.The Plaintiffs’ suit be and is hereby Dismissed.xxii.The Counter-claim by and on behalf of the First Defendant dated the 2ND October 2006, be and is hereby, albeit on terms.xxiii.Consequently, the certificate of titles to and in respect of L.R No’s Nairobi/Block 92/313 and 314, respectively in the names of the 1st and 2nd Plaintiffs be and are hereby revoked and/or canceled.xxiv.Further and in any event, the 1st and 2nd Plaintiffs shall surrender the certificate of titles to and in respect of L.R No’s Nairobi/Block 92/313 and 314; to the Chief Land Registrar within 60 days from the date hereof, to facilitate cancelation thereof.xxv.Nevertheless, even when the 1st and 2nd Plaintiff default to surrender the certificate of titles in terms of clause (iv) hereof, the Chief Land Registrar shall proceed to and effect cancelation and revocation in accordance with the provisions of Section 80 of the land Registration Act, 2012. xxvi.Furthermore, the Chief Land Registrar shall proceed to and gazette the cancelation of the certificates of titles in respect of L.R No’s Nairobi/Block 92/313 and 314, with a view to bringing to the attention of the general public that the impugned titles have indeed been canceled and/or revoked.xxvii.Further and in any event, the Chief Land Registrar shall thereafter proceed to and register the Suit Properties/ Titles in the name of the Cabinet Secretary- Treasury, pursuant to and in Line with the Provisions of CS- Treasury Act, Chapter 101, Laws of Kenya, who shall hold the same for and on behalf of the Public.xxviii.Costs of the suit and the Counter-claim be and are hereby awarded to the 1st, 2nd and 3rd Defendants and same shall be borne by the Plaintiffs jointly and or severally.

279. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 30TH DAY OF NOVEMBER 2023. OGUTTU MBOYA,JUDGEIn the Presence of;Mr. Mwenda h/b for Mr. Waithaka for the Plaintiffs.Mr. Allan Kamau [Principal Litigation Counsel] for the 1st, 2nd and 3rd DefendantsN/A Appearance for the 4th Defendant.