Marete v Kiogora [2024] KEELC 14014 (KLR)

Marete v Kiogora (Environment & Land Case E001 of 2024) [2024] KEELC 14014 (KLR) (18 December 2024) (Judgment)

Neutral citation: [2024] KEELC 14014 (KLR)

Republic of Kenya

In the Environment and Land Court at Meru

Environment & Land Case E001 of 2024

CK Nzili, J

December 18, 2024

Between

Elizabeth Kathure R Marete

Plaintiff

and

Mugambi Solomon Kiogora

Defendant

Judgment

1. What the plaintiff has asked from this court is to stop the defendant from unlawfully and illegally encroaching and committing acts of destruction on her L.R No. Meru Municipality Block II/312 said to have occurred on 21. 12. 2023. The defendant refutes the claim, alleging that what he did on the said date complied with an advocate client's instructions to erect beacons to and fence off the suit land as per the acreage and beacons in line with the title deed held by his client. The defendant averred that the suit land, belonged to his client, a grandfather and was L.R No. Ntima/Igoki/2851.

2. At the trial, Elizabeth Kathure testified as PW 1 and called six witnesses. Her evidence was that the suit land initially belonged to her late husband, who had been allocated the suit land by the defunct Municipal Council of Meru and which, upon his death, was transmitted to her through a succession process. The plaintiff relied on copies of allotment letters, rates, and rent payment receipts, copies of leases and the certificate of the lease, crop assessment reports and land registrar’s, land surveyor’s and physical planner’s reports produced as P. Exh No. 1-19.

3. According to the evidence of the land registrar and land surveyor, the suit land initially formed part of freehold title before the parcels were compulsorily acquired by the Commissioner of Lands by Gazette Notice dated 13. 5.1977 in accordance with the Land Acquisition Act. On the other hand, the defendant testified that though there was a notice published to acquire the land in 1977 and the owners vacated the suit land, there was degazetted of the L.R No. Ntima/Igoki/2851, and that is why the defendant's grandfather obtained a title deed in April 2017, and through a private surveyor, he was able to fence off his land in 2023.

4. The defendant denied the alleged acts of trespass and commission of destruction or interference with the plaintiff's quiet use of occupation and rights over her plot. DW 1 relied on a copy of a title deed, an advocate's instructions note and a copy of the survey map. He insisted that the initial parcel of land was never compulsorily acquired by the government; otherwise, the land registrar would not have issued a title deed on leasehold land as alleged by the land registrar, the surveyors and the town physical planner. DW1 did not produce any gazettement notice revoking the earlier one on the compulsory acquisition of L.R No. Ntima/Igoki/512.

5. The parties filed written submissions dated 5. 12. 2024 and 8. 12. 2024. the court has looked and considered the same

6. Section 85 of the Evidence Act provides gazette notice purporting to be made in pursuance of any written law, printed and published by government printer shall be prima facie evidence in all courts. The issue raised or pleaded by the defendant was also raised and addressed by the court in Mutuma Angaine vs M'Marete M'Muronga (2011) eKLR and in Gerishon vs Commissioner of Lands and others County Government of Meru & others (IP) EL Petition No. 01 of 2017 (2022) KEELC 13725 (KLR) (19th October 2022) Judgment.

7. There is no dispute, and this court takes judicial notice that after the land was compulsorily acquired in favor of the then Municipal Council of Meru, it was given to the Defunct County Council of Meru for urban planning conversion and re-allocation. Sections 3, 6 & 9 of the repealed Land Acquisition Act, as read together with Section 75 of the retired constitution, was the law governing compulsory land acquisition in 1977.

8. Under Section 77 of the Evidence Act, any terms of a grant or any other disposition of property reduced into writing in the form of a document is to be taken as proof of such grant. There is evidence from the land surveyor and registrar that the defendant's grandfather's parcel L.R No. Ntima/Igoki/512 was among the parcels of land that were compulsorily acquired in favor of the defunct Municipal Council of Meru. DW1, in his evidence, admits that his grandfather vacated the land in 1977 and has not been in actual occupation of the land until the purported entry into it on 21. 12. 2023. The defendant has not tendered evidence of any degazettement of the compulsorily acquired plots.

9. On the other hand, there is evidence from the land registrar that the title deed held by the defendant's grandfather was erroneously issued for land compulsorily previously acquired by the government, converted and reallocated to third parties as leasehold, following taking possession and vesting on the head- lessor now succeeded by the County Government of Meru.

10. If at all the defendant's principal was not compensated for the land or the land reverted to him following the alleged de-gazettement, there is no evidence why he did not retake the land immediately and had to wait for the issuance of a fresh title deed in 2017. Equally, I find the defendant tendered no documentary evidence to sustain his defense that the land reverted in law to his grandfather. The grandfather was also not called to substantiate such claims.

11. In the absence of a valid defense or counterclaim by the alleged holder of the title deed said to be erroneously issued, I find the plaintiff has an indefeasible certificate of title to the suit land to be entitled to the reliefs sought in the plaint dated 24. 1.2024 in terms of prayers (a), (b) & (d). Special damages of Kshs.74,137/= and general damages of Kshs.100,000/= for trespass. See Kenya Power Lighting Company vs Ringera & 2 others (2022) KECA 104 (KLR).

12. The same is granted with costs. See Wangai Gacheru vs Kenya National Highway Authority & others (2020) eKLR.

DATED, SIGNED, AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT MERU ON THIS 18TH DECEMBER, 2024In presence ofC.A KananuThangicia for the plaintiffHON. C K NZILIJUDGE