Nancy Wachera Ndiritu v Geoffery Munagi Nganga & County Governmnet of Kiambu [2021] KEELC 1621 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC SUIT NO.685 OF 2017

NANCY WACHERA NDIRITU.....................................................PLAINTIFF

VERSUS

GEOFFERY MUNAGI NGANGA.......................................1ST DEFENDANT

COUNTY GOVERNMNET OF KIAMBU........................2ND DEFENDANT

JUDGMENT

By a Plaint dated 27th July 2017, the Plaintiff sought for Judgement against the Defendants jointly and severally for orders that;-

a.  A permanent injunction  restraining the 1st Defendant  by himself , his agents , servants and or  any other persons whomsoever  from encroaching  upon, trespassing  onto. Constructing on or remaining  on or in any away  howsoever interfering  with all that plot known as  Plot Number Kamiti  Outspan

b.  A permanent mandatory injunction compelling the 1st  Defendant  by himself , servants , agents  to demolish and remove  all the illegal construction  within the Plaintiffs  plot Number  47 Kamiti  Outspan  and to demolish all that building  and illegal erections interfering with the activities of the Plaintiff.

c.  A Permanent injunction restraining  the 2nd Defendant  from approving  any development  plans by the  1st Defendant on  Plot Number 47 Kamiti , Outspan Kiambu  County.

d.  A Permanent  injunction against  the 1st Defendant restraining  them not  to interfere with the Plaintiff’s   parcel of land.

e.  General Damages for trespass and loss of user

f.  Costs of this suit

g.  Interest on (e)  and (f)  above at Court rates

h. Any other Relief that  this Honourable Court may deem  just to grant.

The Plaintiff averred that she is the lawful owner of  the  suit property  measuring 50 by  80 square feet,  having purchased it from the  original allottee  Peter Mwangi Kimani, on 28th February  2011. That the 1st Defendant has never at any one time  been the registered owner of the suit property,  and or owned the same. Further, that the Plaintiff purchased the suit property,  vide  a sale agreement dated  28th January 2011, for Kshs.350,000/= and though  she has not transferred  the ownership documents  under her name, she has been in possession of the same since the purchase . That having bought the suit property, the Plaintiff assumed all rights and  benefits pertaining  to the said plot to the exclusion  of any other person.

Further, that on diverse dates in the month of March 2017 , the 1st Defendant  illegally and without  any rights  trespassed onto the Plaintiff’s  plot and started fencing  the same using the mabati   and digging trenches and bringing other construction materials on the suit property. That the 1st Defendant’s actions are malicious and unlawful. The Plaintiff particularized malice and illegality by the   1st Defendant as; trespassing onto the suit property without any justifiable cause, instructing his servants to dig trenches and start construction without any reason and interfere with her ownership in order to harass and  embarrass her and frustrating her ownership of the suit property .

That the Plaintiff lodged a complaint with the 2nd Defendant  who instructed their surveyor to confirm the exact position of the suit property, after which the 1st Defendant was reprimanded  verbally for constructing on Plot 47,  but no action was taken  and the 1st  Defendant continued with the construction. That unless restrained, the 1st Defendant would continue with trespassing onto the suit property.

The suit is contested and the 1st  Defendant filed a statement of Defence dated 23rd March 2018, and denied all the allegations made in the Plaint. He averred that he was allocated the land in  1977by the County Council of Kiambu , and the plot was pointed out to him by the then Country Surveyor  and he has been utilizing the suit properly for 40 years and paying land rates. That on  14th October 2011, he  visited the 2nd  Defendant’s offices  and a land Surveyor by the name  Teresiah  Waithera Ngigi, visited the land and placed  beacons and pointed out plot No. 62   to him. That the plot is adjacent to Plot 36,which has already been developed. That he was then issued with a receipt for the beacon certificate upon payment.

That during the site visit, he inquired as to the irregularity on the size of the plot and he was informed that some land was excised and earmarked as a road reserve leaving the plot size to be40 by  80-ft. That the Plaintiff has no document to  support ownership  and the only document she has is  a sale agreement  which is not a title document  Further, that  the Plaintiff has produced documents of Plot No. 81 and linked them to  Plot No. 47  and if Plot No. 47 existed, the same ought to have appeared  on the Daily Nation when  County  Council of Kiambu published  a list of plots and their owners. That  he has always owned and utilized the suit property . There  was no meeting on the conclusive ownership of the property  and the assertion that he has constructed on Plots No. 47 and 62, are baseless as the same is based on the sketch map she has  produced and not  based on evidence   or survey records from the  official  sources .

The 2nd Defendant  filed its statement of Defence dated  11th June 2019,  and denied all the allegations made in the Plaint . That its offices did not issue the  letter of allocation dated 26th October 1993,  by the alleged vendor from whom the Plaintiff purchased the suit land.  That  it denies reprimanding the 1st Defendant  on constructing on the suit property . That the letter of allocation presented  by the Plaintiff was not  signed by the person  authorized to issue  letters of allotment letter  and the Plaintiff has failed to avail  evidence that her alleged Vendor had complied with all  the conditions as set out in the allotment letter. That the Court does not have jurisdiction as the Plaintiff has failed  to exhaustive dispute resolution  mechanisms as provided  for under the Physical  Planning Act  and the Court cannot issue a prohibitory order against the 2nd Defendant  to stop it from carrying out its duties.

The matter proceeded by way of viva voce evidence wherein the Plaintiff testified for herself  and closed her  case  and the Defendant called two  Witnesses .

PLAINTIFF’S CASE

PW1 Nancy Wacera  Nderitu  adopted her witness statement dated  25th July 2017,as her evidence in Court . She further produced the list of documents dated 27th July  2017, exhibit 1 and further testified that she purchased the suit property  and she is   being denied possession of the same . That  she bought the suit property from  Peter Kimani  as he was allotted the plot on 26th October 1995. Further that she has submitted her  Application for transfer  and that she has all the documents and Peter Kimani is  still the registered owner of the Plot being  Kamiti Outspan No. 4  as that is what is  written in the  allotment letter. That the allotment letter  indicates 1993 . That what she has indicates 1995. Further that the surveyor pointed out the suit property to her, but she was not given a beacon certificate, but  she has been to the ground and it is easy to pick the plot. Further that the plan is  an official document, but not registered with Survey of Kenya,  as it is registered at Kiambu Lands Office. That  the sketch plan is authentic   as it is given before the  plots are officially registered. That she was talking  of Plot  No. 47and not81 . She paid the  land rent of Kshs.46,252/=that cleared the land arrears at  the time . That the annual rate was  Kshs. 3000/=  and the payment was made  on 14th  December 2015 . That as at 1995,the plot was available . Further that the 1st Defendant is occupying Plot No. 62  and he took possession in  2017, and that is the property that she claims . That when he purchased the suit property, the plot was vacant and he started to construct in the suit property in 2017.

Further that as per the allotment letter, the rate payable was Khs.1000/= and the Plot she is shown is the one occupied by Peter Kimani,as the 2nd Defendant gave her documents to show that the plot she purchased was the one occupied by the 1st Defendant. That she is claiming Plot No. 81.

That the letter of allocation is for the person she bought the  suit property from. That her sale agreement is dated 25th January  2011, and she did not confirm if he had complied with Condition No 9, of the  Letter of allotment . That the payment receipt is dated 14th  December 2015  for Kshs.49,252/=  for the payments of the rates arrears. That, she had  the allotment letter to get  an invoice from the  County Government of Kiambu . Further,  that she did a her due diligence, and she was  not aware that the  County Council  of Kiambu had repossessed  the Land and that the 1st Defendant  he was in arrears of three months. That she was given a letter dated 8th  December   2015, confirming  the existence of the plot .That she did not verify the minutes of the allotment  as they were not available . That the County Council of Kiambu accepted the documents as presented. And the letter produced in  the bundle of document is the one dated 26th October 1993,and the payments made were  accumulated penalties.

DEFENCE CASE

DW1  Geoffrey Mungai Nganga,  adopted his witness statement  dated   23rd March 2018, as his evidence in Court . He further produced his list of documents as  Exhibits in Court . That he was  allocated Plot No. 62  Kamiti Outspan  by Kiambu County   Council  in1977,  and he has since been paying for the said plot since then.  That when he was allocated the plot, he was shown the same Physically by the County Council Surveyor  and the same was pointed out to him. That he was given a beacon Certificate in 2011, and when he wanted to develop the plot he went back with the Surveyor who surveyed the Plot, and put Beacons. He fenced the said plot and dumped building materials.

That he was later informed by the County Council Official that someone else was claiming the land and at that time, he had already taken possession  and had started developing the property . He urged the Court to confirm his ownership  as he had met the conditions for allocation of the suit property

That the  size of the allocated land was 50 ft by 120 ft  and the  plot he  has built on  measures  40ft by 80 ft . That it is the same plot, but with different measures. That the beacon certificate is not stamped, but there is a receipt that is stamped. That he started the actual construction in2011, and then he learnt that someone else was claiming the land. That together with the Plaintiff, they took their documents to the County Council of Kiambu, and he was never invited for another meeting. That the houses on the suit property were completed in  2016and  that he was informed that the plot measured differently and that was because of accommodating the infrastructure. He stated that the suit property has never been resurveyed.

DW2  Henry  Muhora Chege  adopted his witness statement dated 3rd March 2018,  as part of his evidence and further testified that he is the Chairman of nyumba kumi, and the plot in dispute belongs to the 1st Defendant  as he used to go  and check on the said plot. That  the 1st Defendant brought the Surveyor in 2011, and he assisted them to  dig the holes  for the Beacons. Further, that in December 2011, the 1st Defendant fenced the plot and developed it  and that he has met him on the plot severally. That there are anomalies on the size of the plot on the ground and  the allotment letter .

Before fencing of the plot, the same plot had not been developed. That he developed the plots using the allotment letter and he used  a Surveyor to identify the plot. That he did not attend the meeting called by then County Government of Kiambu and that  Waitherais the County  Surveyor. That he knows the plaintiff who lives in the area, but he never went to check on the plot nor talked to him about the plot. Further, the sketch map was used by Waithera,which was not officially from the Director of Survey.

Thereafter, the Court directed the parties to file Written Submissions which the Court has carefully read and considered together with the pleadings by the parties, the evidence adduced and the relevant provisions of law and finds that the issues for determination are;

1. Who is the bonafide owner of the  suit property

2.  Whether the Plaintiff is entitled to the orders sought

3. Who should bear the costs of the suit

1. Who is the bonafide owner of the  suit property

The Plaintiff and the 1st Defendant both lay claim to the suit property. When a person title to land is challenged and/or called into that question, person is  required to show the root of their his/her title . Though the parties  lay  claim to the physical location of the suit property,  the Plot numbers that they base their claim on are totally different. The Plaintiff herein  lay claim to Plot No. 47,having bought the same from one Peter  Mwangi  vide a sale agreement dated  28th January 2011 . That she then took over statutory obligations  such as paying of land rates  but hit a snag when the 2nd Defendant refused to transfer the suit property to her. To support her claim, the Plaintiff produced in evidence  a sale agreement , a copy of a letter of allocation  issued to Peter  Mwangi, on 26th October 1993, an alleged survey plan that only  showed a sketch, but the same was neither stamped nor authenticated and copy of receipts  of payment of rates  for 2015 to 2016. From the documentation produced in Court as exhibits and without any evidence to Controvert the same, the Court is satisfied that the Plaintiff is the owner of Plot No. 47.

On the  other hand the 1st  Defendant lay claim to Plot No. 62. In order to  support his case, he produced  as exhibits  a letter of allocation  of Plot No. 62, rent payments receipts, beacon Certificate , Beacon Certificate payment receipt,  Public Notice of land rates,  defaulters and photographs of the  constructed Plot No. 62. In the absence of any evidence to the contrary and the 1st Defendant having produced a  letter of allocation dated  4th July 1977, the Court is thus satisfied  that he is the owner of the Plot  No. 62.

As both parties lay claim to the physical location of the suit property, for this Court to be able to determine who is the bonafide owner, it must determine who has  been able to  place their plot Number in the suit property. Thought the Plaintiff claims that  the County Surveyor has visited the suit property and declared that the suit property is hers to wit Plot No. 47,  she has not produced any evidence to prove the said claims. “It is trite that he who alleges must prove”.  The Plaintiff has failed to prove the same and therefore the Court finds and holds that she has failed to prove that the suit property is Plot No. 47.

On the other hand, the 1st Defendant called DW2 who confirmed that the 1st Defendant has always been in possession of the suit property. To support his claim, the  1st  Defendant produced in evidence a  beacon Certificate which is a document anchored in the Survey Act, declaring that the surveyor has placed beacons. That he has full knowledge of the positions of the said beacons and that he is satisfied that such define the boundaries of the parcel in question.  Possession of a Beacon Certificate could only mean that the Surveyor visited the physical land and placed the beacons. Thus the Court finds that the available evidence supports the 1st Defendant’s claim that the suit property is his and it is indeed Plot No. 62. Though the Plaintiff produced a sketch Plan, the same has not been authenticated and it is impossible to tell how the same was procured or if it shows that the suit property is Plot No. 47. This Court arrives at a finding that the 1st Defendant has been able to prove that the suit property is Plot No. 62, by the production of the Beacon Certificate and corroboration of DW2.

Consequently the Court finds and holds that the  1st Defendant is the bonafide  owner of the suit property.

2. Whether the Plaintiff is entitled to the orders sought

In her Plaint, the Plaintiff had sought for several orders being an Order of Permanent and mandatory injunction as against the Defendants, That the 1st Defendant be restrained from  interfering with the  Plot No. 47, and for demolishing  of all the structures therein. A Permanent Injunction restraining the 2nd Defendant from approving any development plans and  to cancel any development plan already issued.

The Court has found and held that the   suit property herein is Plot No. 62, and further held that the same belongs to the 1st Defendant herein. Hence, the 1st Defendant is the bonafide owner of the suit property. The 1st Defendant should be allowed to enjoy all the rights and privileges that appertain a proprietor of any property and including a right to peaceful and quiet possession of the suit property. Consequently, the Court further finds and holds that the Plaintiff is not entitled to the Orders sought.

3. Who should bear the costs of the suit

It is trite that costs usually follow the event unless special circumstances present themselves. However, Section 27 of the Civil Procedure Act gives court discretion to grant or not to grant costs of the suit. This Court finds no reasons to depart from the holding that cost follow the event.

Having carefully read and considered the Pleadings by the parties herein, the evidence adduced, the written submission and the provisions of law, the Court finds and holds that the Plaintiff has failed to prove her claim against the Defendant herein on the required standard of balance of probabilities. For the above reasons, the Court finds that the Plaintiff’s claim as contained in the Plaint dated 27th July 2017 is not merited and the said claim is dismissed entirely with costs to the 1st Defendant herein.

It is so ordered.

DATED, SIGNED AND DELIVERED AT THIKA THIS 8TH DAY OF OCTOBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy