Ngatho v Towett [2023] KEELC 16197 (KLR) | Double Allocation | Esheria

Ngatho v Towett [2023] KEELC 16197 (KLR)

Full Case Text

Ngatho v Towett (Environment & Land Case 189 of 2013) [2023] KEELC 16197 (KLR) (8 March 2023) (Judgment)

Neutral citation: [2023] KEELC 16197 (KLR)

Republic of Kenya

In the Environment and Land Court at Nakuru

Environment & Land Case 189 of 2013

FM Njoroge, J

March 8, 2023

Between

Grace Wambui Ngatho

Plaintiff

and

Alice Chelangat Towett

Defendant

Judgment

1. The plaintiff filed a plaint dated 15/2/2013 seeking the following orders:a.An Order that the plaintiff is the lawful owner of plot No. Gilgil Township Block 3/39. b.A permanent Order of injunction restraining the defendant by herself, her agents and/or servants from entering, remaining in, trespassing or in any other way interfering with the plaintiff’s peaceful and quiet possession of parcel No. Plot No. Gilgil Township Block 3/39. c.Costs of the suit.d.Any other or further relief that this honourable court may deem fit and just to grant.

2. The plaintiff’s claim as contained in her plaint is that she is the registered proprietor of all that parcel of land known as Gilgil/Township Block 3 /39, formerly referred to as Uns. Commercial Plot No 14 Gilgil. The plot was originally allocated to her husband, now deceased, but she later took out a grant of letters of administration for his estate and processed the certificate of lease in her favour. She states that the suit property was developed with a three roomed building, a water tank, a barbed wire fence and a pit latrine but on 25th May 2011 the defendant or her agents trespassed thereon and demolished the building. The plaintiff avers that there was previous litigation in the matter which went up to the appeal stage but the appeal was later withdrawn.

Defence 3. The defendant filed her defence on 11th April 2013, incorporating a counterclaim. In her defence she stated that the suit is fatally defective; that she is not aware of the existence of Gilgil/Township Block 3 /39 or that Uns. Commercial Plot No 14 Gilgil was allocated to the plaintiff’s late husband; that there were no developments on the property as claimed by the plaintiff and nor did she demolish any such structure. In her counterclaim she stated that she in 1993 she was registered as proprietor of all that parcel of land known as LR 1317/451 Gilgil Township measuring approximately 0. 544 ha; that in 2009 the plaintiff trespassed onto the said plot and started putting up a foundation for a house thereon; that in the same year the defendant wrote to the Commissioner of Lands inquiring about the plot’s ownership; that the Commissioner responded stating that the defendant was the registered proprietor; that during the pendency of the litigation disclosed in the plaint the plaintiff, in collusion with Land Registrar, Naivasha, was purportedly registered as the owner of Gilgil/Township Block 3/39 and that the said land reference number refers to the same suit land as LR 1317/451 Gilgil Township on the ground hence the counterclaim. The particulars of fraud and illegality of action are levelled against the plaintiff and the Land Registrar at paragraph 13 of the counterclaim.

Evidence of the Parties The Plaintiff’s Evidence 4. PW 1 Grace Wambui Ngatho gave sworn evidence and adopted her witness statement dated 15th February 2013 as her evidence in chief. She stated that the suit land is known as Gilgil Township Block 3/39. She was issued with the title (P. Exh 1) on 6th December 2012. She also was issued with a lease dated 19th November 2012 (PExh2) and it was registered on 6th December 2012. Her husband Stanley Ngatho Maara was allotted the plot on 23rd December 1992 vide the allotment letter dated 23rd December 1992 (P. Exh.6. ) It refers to plot details as Uns. Commercial plot No. 14 Gilgil Township. He passed in the year 2002 as per his death certificate (PExh.3. ) The plaintiff then obtained a grant of letters of administration for his estate in Nakuru High Court succession cause No. 98/2003 on 10th June 2003 (P. Exh 4) and later got confirmation thereof dated on 14th July 2011. The grant was confirmed and the estate distributed. A copy of the certificate of confirmation of grant (P. Exh. 5) was produced.

5. The amount of Kshs.22, 000 stated in the allotment letter was paid as per a copy of a receipt dated 30th May 2011 (P. Exh 7)

6. She asked for judgment as prayed in her plaint. Since according to her, the defendant has a title for the plot which was irregularly issued to her.

7. Under Cross-examination by Mr. Geke the plaintiff stated that she had the original of the allotment letter with her; that the special conditions attached to the letter of allotment are a photocopy; that her husband had told her that a plot had been allocated to him by the government. He acquired it lawfully. The suit property is listed in the Certificate of Confirmation of Grant. Her husband became sick and did not pay the amounts in the allotment letter on time but the plaintiff paid them on 30th May 2011; that the certificate of confirmation of grant was issued to her on 14th July 2011 while the lease was issued to her on 6th February 2012. She did not tell the Lands Department to issue it in her name but only gave them the documents which they needed. The plot measures 0. 0544 ha according to the lease. In the allotment letter, the plot is said to measure 0. 12 ha. She had no explanation as to why the plot was reduced in size in the lease and that she never enquired on the same. The lease was issued to her from Nairobi. She had sued the defendant herein in an earlier case, CMCC no. 452 of 2011. By the time she filed the present case she had obtained title for the plot. The title was issued on 6th December 2012. She cannot remember if as at that date she had any case in court. She did not explain to the Land Registrar Naivasha that there was a dispute over the plot; she did not personally report to any authority that the defendant was claiming her plot. Her son reported that the defendant was demolishing her house. It was a permanent house and she therefore had approved plans for it but she had not produced any in court.

8. PW2 - Moses Wairiuko Ngatho gave sworn evidence and adopted his witness statement on 15th February 2013 as part of his evidence in chief. His evidence is that his neighbour Patrick Kiiru (PW3) called him on phone on some date in 2011 and informed him that their 3 roomed permanent building on the suit land was being demolished; that he went to Gilgil Police Station and was given two police officers and went to the scene where they found that the building had been brought down and the rubble was being ferried away from the plot using a donkey cart; that when the one in charge of the demolition was asked he stated that the defendant had hired him to demolish the structure and he was taken to the police station and later released. He stated that the plaintiff is his mother. On that day PW2 received a note (P. Exh 8) from Isaac Gathogo showing that he was paid Kshs.10, 000/= to demolish the house on the suit plot. The note was given to him and security officers on the day Isaac Gathogo was demolishing the house. He said he was instructed to demolish the structure by Alice Towett.

9. Under cross-examination by Mr. Geke PW2 stated that the house that was being demolished was on plot No. 14 and was under construction. It had reached the lintel level. It was a three roomed house. PW1 was the one who had been doing the construction and he had a building plan.

10. PW3 – Patrick Kiiru gave sworn evidence and adopted his witness statement filed on 15th February 2013. His evidence is that his house is situated near the plaintiff’s plot and that he witnessed the hurried process of demolition of the plaintiff’s structure by about 7 men. It was a permanent structure of three rooms. He called the plaintiff on phone. He was shown documents of authority to demolish by the person in charge of the demolition.

11. Under cross-examination by Mr. Geke PW3 stated that he resides on his own plot (plot No. 9) - Gilgil; he heard a smashing sound at around lunch hour one day and when he came out of his house he found that his neighbour’s house was being demolished; he found 3 people demolishing it. They said they had been contracted by a Mr. Gathogo. He did not know them. The house was a 3 roomed house and had been under construction for about two weeks. It had reached the lintel. PW3’s plot was allotted by the County Council, and he had bought it from an allotee. He still does not have a title and he has not followed up the process of issuance of title.

12. DW1 – Alice Chelangat Towett gave sworn evidence and adopted her witness statement dated 25th March 2013 filed herein on 11th April 2013. Her evidence is that she has a commercial plot in Gilgil known as LR 1317/451 Gilgil located near Barracks and near Railways, measuring 0. 053 hectares. she adopted her filed witness statement as her evidence in chief. She also produced copies of the documents attached to the defendant’s list of documents dated 25th March 2013 as D. Exh 1 to 20 respectively. She prayed that the plaintiff’s case be dismissed and that judgment be entered as per the counterclaim.

13. Under cross-examination by Mr. Ngure, DW1 stated that a surveyor had to visit the site to ensure that the plot number LR 1317/451 and title no. Gilgil Township Block 3/39 referred to the same land on the ground and the surveyor confirmed that that was the case. She admitted that the plot had a cemented pit latrine, a fence which she stated had been in poor condition and about 3 trenches with two courses of stones to signify that there was some development which was just commencing. However according to her there was no house on the plot. She sent some people to clear some debris which were outside the plot. She was sued by the Plaintiff herein in Nakuru CMCC 452/2011 seeking orders restraining her from interfering with the plot. The court ruled that it had no jurisdiction. According to her the Land Registrar could not lawfully issue two certificates of lease over the same property. D.Exh 1 was issued on 7th January 1993. She admitted that the number “3” in the date entry in the letter of allotment looks unusually darker and thicker and that it is possible that there was an alteration. She however stated that she was given the document as it is. She denied that that it was issued in 1992 and maintained that it was actually issued to her in 1993. D.Exh 1 required her to accept the offer and pay Kshs.12, 850 within 30 days. She admitted that she did not pay within 30 days as required but that she however accepted the allotment within 30 days. She paid on 14th June 1993 by cheque dated 22nd April 1993. The plaintiff was present during the last ground visit. The size of land on her allotment letter is 0. 053 hectares while the size on her title is 0. 0544 hectares. She maintained that her documents are valid.

14. Under re-examination by Mr. Geke, DW1 stated that the government has never complained over late payment and that it never notified her that any other title would be issued over the suit land. She stated that during the site visit, there was a government surveyor and two policemen.

15. DW2 – Isaac Gathogo gave sworn evidence and adopted his witness statement dated 25th March 2013 filed on 11th April 2013 as his evidence-in-chief.

16. Under re-examination by Mr. Ngure he stated that he was instructed to clear stones and construction sand from the plot by the defendant; that they agreed that he be paid Kshs. 13,000. That there was a foundation with around 3 courses on the plot; that there was no latrine or any fence. That there were only about 2 fencing poles still standing; that they removed the stones and took them outside the plot and demolished the 3 courses. There was no tank constructed on the plot. There was a shop near the plot. He was arrested by police who came in the company of one Moses who is the Plaintiff’s son. He had instructed his workmen to do the work and then gone away only to be arrested when he returned to the site.

17. Upon re-examination by Mr. Geke he stated that the police took him to the police station where upon explaining that he had been contracted by the Defendant he was released without charged.

18. At that point the defendant’s case was marked as closed.

19. Russos Rutho Mwangi, Land Registrar, gave sworn evidence and stated the only copies of records he had in respect of the suit land are certified copies of the white card and the green card which he produced as exhibits in this case as 2DExh.1 and 2DExh. 2. The green card shows that the date of opening is 6/12/2012; 0. 544 Ha on the Green Card. Rent is Kshs. 1,620/= from 1/12/1992. Lease is for 99 years from 1/12/1982 and that Grace Wambui Ngatho is the lessee. The certificate of lease was issued 6/12/2012. It is unencumbered but a restriction pending the determination of this case is registered. He was not able to access that lease in the Registry despite conducting a search for it.

Submissions 20. At the conclusion of the Land Registrar’s evidence the parties were ordered to file submissions which order the plaintiff complied with on 18/1/2023 and the defendant on 6/2/2023.

21. The plaintiff submitted that the defendant’s defence is a mere denial and that the counterclaim is in respect of another plot bearing an RTA reference number. The plaintiff raised the question of how the grant that the defendant produced could have been issued before the allotment letter was issued to her, for she submitted that the allotment letter for Uns Commercial Plot No. 1 Gilgil was issued on 7/1/1993 to the defendant while her RTA grant was issued on 1/1/1993. The plaintiff labels the defendant’s letter of allotment to be a forgery and points out that the date of that letter has been interfered with, specifically the numeral 3 in that date. She also faults the letter of allotment for failing to have a PDP (Part Development Plan) as is the case with letters of allotment. She also points out that there is a variation between the size of land on the grant and the size on the allotment letter. Thirdly she submitted that the receipt for Kshs 12850 dated 14th June 1993 was made after the offer in the letter of allotment had lapsed though the letter had issued a grace period of 30 days only with effect from its date of issuance. The plaintiff submitted further that the Land Registrar had confirmed that the suit land was registered in her name at the land registry and that he had produced the green and the white cards in support of his evidence. She stated that the main issue that arises in the present suit is as to who between the plaintiff and the defendant has established herself to have the superior title. She answered that question in her own favour giving the reasons that her letter of allotment is clean and has no alterations such as that appearing on the defendant’s letter; that the plaintiff’s letter is of an earlier date than the defendant’s; that as her allotment came earlier than the defendant’s, there was no land for alienation to the defendant; that the defendant’s grant bears a date earlier than the letter of allotment to the defendant; that the land registrar confirmed her to be the rightful holder of title documents registered at the Naivasha land registry; that the defendant never called any officer from the land registry at Nairobi to come and testify as to the authenticity of her documents.

22. Finally regarding the dismissal of the suit in the lower court the plaintiff submitted that the suit was only struck out as it was never heard on its merits. The plaintiff also admitted that during the pendency of some litigation earlier commenced before the present suit her certificate of title was issued. However, she also submitted that she was issued with her title document while the appeal was still pending, and that there was no restraining order in place directed at the Land Registrar to prevent him from such issuance and indeed no application had been made to that end.

23. The defendant submitted that her letter of allotment was issued on 7th January 1993 for a plot approximately measuring 0. 03 ha while the plaintiff’s letter of allotment was issued on 23rd December 1992 for a plot measuring approximately 0. 12 hectares. The defendant stated that she complied with the demands on her letter of allotment by accepting the allocation and payment of the required stand premium following which she was issued with a grant and a deed plan for the suit land. She submitted that after the plaintiff filed the suit in the lower court she made inquiries at the Ministry of Lands Headquarters in Nairobi regarding the status of her title and the Ministry wrote a letter to her copied to the Nakuru District Land Officer confirming that the land belongs to her.

24. Regarding the payment of survey fees and stand premium on the part of the plaintiff the defendant states that it is not clear in what manner the said sums were paid on 30/5/2011; that the plaintiff obtained the grant to her late husband’s estate and got confirmation on 19th December 2003 the suit property was not listed as part of the deceased’s assets; that the plaintiff’s certificate of lease does not tally with her letter of allotment in that the plaintiff’s lease shows that her plot is 0. 0544 ha. and not 0. 12 ha. as per the letter of allotment; that there is no letter forwarding the plaintiff’s lease to Naivasha land registry and copied to her as is the norm; that the land registrar from Naivasha a Mr Ritho stated that the land registry in Naivasha does not have a parcel file for the plaintiff’s land; that the registry therefore does not have any record of documents showing how the lease was registered and a certificate of lease issued; that the lease must be fraudulent as there is no document trail leading to its issuance. The defendant also stated that before any government land is allocated there must be a PDP prepared by the area planner for the time being; that if there was a plot No. 14 in the PDP as reflected in the plaintiff’s allotment letter then the deceased was allocated plot No. 14 and not plot No. 1. The defendant then submitted that having followed all the proper procedures as required by the government she emerged the lawful owner of the suit land and she currently pays the ground rent for it. she further submitted that the Ministry of Lands headquarters in Nairobi is the main registry in matters dealing with land in Kenya and especially leases and grants by the government, and that registry is in a position to furnish information as to whether the government has issued a lease or a grant. She submitted that since the ministry officials wrote the letter confirming that she was the rightful owner of the suit land then the court ought to enter judgment in her favour against the plaintiff. The defendant avers that she was the first person to be issued with the title documents to the suit land by the government in 1993 and her title is authentic. She avers that the lease and certificate of lease borne by the plaintiff are illegal; that the Land Registrar Naivasha had no authority to issue a grant in respect of land over which a grant had been issued; that the Land Registrar acted fraudulently and colluded with the plaintiff and prepared a fraudulent lease in the latter’s favour to defeat the defendant’s grant. She termed the plaintiff’s act of not disclosing at the suit that she was following up on the issuance of the certificate of lease to her as evidence of such fraud. She also stated that the absence of documents at the Naivasha Land Registry to support the lease was further evidence of illegality of the plaintiff’s title. she submitted that no land should be registered more than once or have more than one title; that in the present case only her title is genuine. She relied on the case of Hubert L Martin & 2 others vs Margaret J Kamar & 5 others 2016 eKLR and Wreck Motors Enterprises vs the Commissioner of Lands &others Civil Appeal No 71 of 1997 as well as Gitwany Investments LtdvsTaj Mal Ltd & 3others 2016 eKLR.

Determination Issues for Determination 25. This court ordered a surveyor’s report to be prepared in respect of the suit land. Based on that surveyors report it is common ground that the Land reference numbers issued in the plaintiff’s RLA title and in the defendant’s RTA title refer to one and the same plot on the ground. It is clear that the plaintiff had taken possession of the suit land and commenced developments thereon before the defendant came in and destroyed them in her attempt to reclaim what she believed was her plot. Though title documents appear to have been issued to the two parties herein at different dates, the plaintiff took possession of the suit land before the defendant did hence the need for the eviction exercise that the defendant carried out. The issues arising from determination in the present suit are therefore as follows:a.Who between the plaintiff and the defendant herein has better title to the suit land;b.Who should bear the costs of the suit.

26. Regarding the first issue herein above it must be remembered that the land registry located at Nairobi is the proper repository in respect of the RTA title held by the defendant while the land registry at Nakuru is the proper repository of records relating to the RLA title issued to the plaintiff.

27. The plaintiff testified in her case and called one witness whose evidence mainly established that the plaintiff had assumed possession of the suit land and commenced developments thereon. The defendant testified in her case and called no witness in her case.

28. Leases such as the plaintiffs’ emanate from Nairobi Land Registry Headquarters and are registered at the regional land registries and a certificate of title issued thereafter. Grants such as the defendants under the repealed Registration of Titles Act were normally issued and registered at the Nairobi Ministry of Lands headquarters central land registry. There was however no witnesses called by either party from the Nairobi Ministry of Lands headquarters to establish if the plaintiff’s lease or the grant to the defendant had emanated from that office or that the appropriate processes had been undertaken before the title was issued. That omission left the parties on the same footing and I must therefore consider the rest of the evidence wholistically to determine who has better title to the land.

29. The parties agreed to have the Land Registrar Naivasha attend court and testify which he did. His evidence established that the plaintiff’s title to the suit land was registered at the Naivasha land registry. He produced the green card showing that the only copies of records he had in respect of the suit land are certified copies of the white card and the green card he produced as exhibits in this case as 2DExh.1 and 2DExh. 2. The green card shows that the date of opening is 6/12/2012; 0. 544 ha. on the green card. Annual rent is Kshs. 1,620/= from 1/12/1992. The lease was issued to Grace Wambui Ngatho as lessee for 99 years from 1/12/1982. The certificate of lease was issued 6/12/2012. The title is unencumbered but a restriction pending the determination of this case is registered. He was not able to access that lease in the Registry despite conducting a search for it.

30. It is clear in the present suit that the Land Registrar, Naivasha who was called at the instance of both parties established by his evidence that the suit land was registered at the Naivasha land registry in the name of the plaintiff. From the cumulative effect of the above cited provisions, the rights of a person registered as the proprietor are therefore indefeasible subject to the provisions of Section 26 of the Act. Though the evidence of the Land Registrar left no doubt that the plaintiff’s certificate of lease is registered at the Naivasha land registry, the defendant also produced a copies of official search dated 28/7/2005 and 21/4/2010 showing that she had been issued with the grant to the suit land. These documents were not objected to by the plaintiff and I also must deem the suit land as also having been registered in favour of the defendant. Both parcels having been registered, the defendant makes the seductive submission that the title that was registered first should be declared the better title. I find that as regards proof of registration, the evidence of registration given by the Land Registrar gives the plaintiff’s title a slight edge over the defendant’s title.

31. Section 24 (a) of the Land Registration Act provides as follows:“The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”

32. Section 25 of the Land Registration Act provides as follows:25. (1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and(b)to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.

33. The foregoing notwithstanding, it is necessary to consider that whereas the plaintiff was duty bound in this suit to establish that the defendant had trespassed on land lawfully registered in her name without her consent as the registered owner, it was a twofold duty incumbent upon the defendant to establish first, that she was the registered proprietor and secondly, that the plaintiff’s lease was obtained by way of(a)fraud or misrepresentation to which the person is proved to be a party;(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme. Whether the defendant trespassed on the plaintiff’s land is predicated on the court’s finding as to who has the better title to the suit land.

34. Section 26 of the Land Registration Act provides as follows:26. (1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.

35. The plaintiff’s suit is a claim for trespass to her land by the defendant. It differs from the defendant’s suit by counterclaim which is for inter alia the cancellation of the title issued to the plaintiff on the basis of fraud. Whereas the plaintiff’s task was to simply establish that the defendant had illegally trespassed on land lawfully registered in the plaintiff’s name the defendant had the onus of proving that the plaintiff’s title is amenable to cancellation under the Land Registration Act. It is the law that fraud cannot be inferred; particulars thereof must be specifically pleaded and proved.

36. Has the defendant, having pleaded it, specifically proved fraud against the plaintiff? The defendant averred that during the registration of the lease the plaintiff failed to disclose to the Land Registrar of the existence of the pending appeal against the decision in the lower court case that the plaintiff had filed. She also stated that the plaintiff obtained a certificate of lease with the knowledge that the suit land belongs to the defendant; that she made misrepresentations to the land registrar with a view to having herself registered as owner while knowing that course of action was illegal, and that she knowingly and fraudulently misled the officials in the land registry to make entries in the land register.

37. The particulars of fraud or illegality levelled against the Land Registrar in the counterclaim were that he dealt with the suit land without proper documentation; that he authorized transactions over the suit land irregularly; that he issued two parallel title deeds on the same property and that he registered and issued a certificate of lease without proper scrutiny of survey maps, plans or other documents and without following proper procedure.

38. Unfortunately for the defendant proof of fraud can not be imputed from mere irregular happenings. Double allocation of a plot to two or more persons may be a failure of a system and not necessarily fraud. The evidence given by the defendant dwells mostly on the gaps and omissions witnessed in the process of the issuance of the plaintiff’s title as well as the fact that her title appears to have been issued in respect of the same plot to which the plaintiff’s title refers.

39. It is clear that the plaintiff had a letter of allotment by the time the defendant got to know of her claim over the suit land and the processing of the suit land went on during the pendency of the appeal in the court case between the parties. However objectionable the process of issuance of such title during the pendency of such proceedings may be, the same can not be deemed to be evidence of fraud; it is an irregularity that would necessitate remedial measures in the end perchance the court found for the defendant in the appeal. However, it is conceded that the appeal was later withdrawn and hence no orders were made therein beneficial to the defendant.

40. Having noted that the parties agree that the dismissal of the initial suit was for reason of want of jurisdiction, nothing turns on the processing of the title during the pendency of the appeal against the dismissal and I am inclined to agree with the plaintiff that it was not demonstrated that there were any orders barring the issuance of title during the pendency of the proceedings. The ultimate conclusion therefore is that there is no fraud proved against the plaintiff.

41. Having found that fraud has not been proved by the defendant it behoves this court to examine some other perspective that may enable it reach a determination of the present dispute. The issue of propriety of the letters of allotment issued to the parties arose during the proceedings. The plaintiff averred that the defendant’s letter of allotment is a forgery for reasons stated herein before and that the same could not have validly led to the issuance of the defendant’s title since the latter was issued before the date of the letter of allotment. I have examined the defendant’s documents. The letter of allotment that she relies on has some alteration on the date which makes it impossible for any objective reader thereof to decipher the year in which that document was issued. No officer of the Ministry of Lands was called to shed light on that apparent alteration or to state clearly the date on which the offer of allotment was issued to the defendant. Secondly, I must reject the plaintiff’s claim that the defendant’s title can not be valid since it came before the defendant’s allotment letter; based on a perusal of both documents, that allegation is clearly misplaced; I however find that the plaintiff’s letter of allotment was issued prior to that held by the defendant.

42. As it has been established by way of the surveyor’s evidence that the titles issued to the two parties in the present dispute refer to one and the same plot this court must uphold the letter of allotment that came first as the one that led to the issuance of the proper title to the land. The plaintiff’s letter was issued on 23/12/1992 while the date on that of the defendant’s letter is not clear. Perchance this court was to rely on the documents that came to the defendant after the issuance of that letter of allotment, then the proper date of issuance can only be deemed to be 7/1/1993, long after the plaintiff’s letter of allotment was issued to her late husband.

43. The plaintiff’s letter of allotment having been issued prior to the defendant’s in respect of the same land there was nothing to be allocated to the defendant unless it was cancelled first and the defendant has failed to demonstrate that there was any such cancellation before her letter of allotment was issued and the decisions in the cases of Joseph Njenga NgaramavsOlive Wamuhu Kinyanjui & Another, Nakuru ELC Case No. 215 of 2015 and Republicvs. City Council of Nairobi & 3others 2014 eKLR amply demonstrate that position. Consequently, I would uphold the certificate of title that was issued to the plaintiff on the basis of the priority of the letter of allotment that she held.

44. Lastly on the issue of costs I hold that since the defendant challenged the plaintiff’s title on the basis of fraud and failed to prove her counterclaim and that it must therefore be dismissed, she ought to bear the costs of the present suit.

45. In the final analysis I find that the plaintiff in the main suit has established her claim against the defendant and I therefore enter judgment in her favour and I issued the following final orders:a.The plaintiff’s claim in the main suit succeeds and the defendant’s counterclaim is dismissed;b.An order of declaration is hereby issued declaring that the plaintiff is the lawful owner of all that land parcel known as Land Reference No. Gilgil Township Block 3/39. c.An order of permanent injunction is hereby issued restraining the defendant by herself, her agents and/or servants from entering, remaining in, trespassing or in any other way interfering with the plaintiff’s peaceful and quiet possession of all that land parcel known as Land Reference No. Gilgil Township Block 3/39. d.The defendant in the main suit shall bear the costs of the main suit and counterclaim.

DATED, SIGNED AND DELIVERED AT NAKURU VIA ELECTRONIC MAIL ON THIS 8TH DAY OF MARCH, 2023. MWANGI NJOROGEJUDGE, ELC, NAKURU