Nicholas Mawia Mbaluka v Michael Nthei Alias Kindevu, Land Adjudication And Settlement Officer (Mtito Andei Division & Direcetor, Land Adjudiation Settlement Department [2017] KEELC 140 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND  COURT

AT MAKUENI

ELC NO 126 OF 2017

FORMERLY  MACHAKOS CIVIL SUIT NO . 115 OF 2012

NICHOLAS MAWIA MBALUKA...............................PLAINTIFF/APPLICANT

VERSUS

MICHAEL NTHEI ALIAS  KINDEVU......1ST DEFENDANT/RESPONDENTS

THE LAND ADJUDICATION AND SETTLEMENT OFFICER

(MTITO ANDEIDIVISION..........................2ND DEFENDANT/RESPONDENT

THE DIRECETOR, LAND ADJUDIATION  SETTLEMENT

DEPARTMENT............................................3RD DEFENDANT/RESPONDENT

JUDGMENT

1. By his plaint  dated 12th April, 2012 and filed in court on the 13th April, 2012 the plaintiff  prays for judgement against the defendants jointly and severally for:-

a. A declaration that plot No. 710 measures 7. 97 hectares and not 1. 02 hectares belongs to the Plaintiff.

b. An order compelling the correction  of the anomalies of measurements of Plot No. 710 by the 2nd  Defendant in  the  Map and on the ground so  that  defendant’s  letter  of  allotment is changed  to read 1. 02 Hectares and the Plaintiff’s letter of allotment changed to read 7. 97 Hectares and the map redraw to reflect the true position on the ground.

c. An order compelling the 3rd Defendant to direct the 2nd defendant herein to correct the anomalies of measurements on the Map to reflect the measurements on the ground of plot No. 710.

d. An order compelling the 1st Defendant sign or execute all the necessary documents in the correction and rectification process of the above said measurement anomalies and in default the Deputy Registrar of this Court to do so.

e. An order of injunction restraining the 1st Defendant from further trespassing to the Plaintiff’s portion of land.

f. Costs of the suit.

g. Any other relief this Honourable Court deems fit and just to grant.

2. The defendants did not enter appearance nor did they file defence within the prescribed period after being served with summons.  For the record, the 1st and 2nd  defendants were served with summons on the 27th June, 2013 while the 3rd defendant was served on the 4th June, 2013 as evidenced  by the two  affidavits of service which is  dated  8th August, 2013.  As such this matter proceeded to formal proof on the 2nd  November , 2017. His   evidence was that he owns plot number 710 in Kathekani Settlement Scheme and that demarcation of the plot was done in his name. He said  that the size of the plot is 7. 97 hectares.  He went on to say that when he got the letter of allotment  dated 28th October, 2005 (DEX No. PEX NO.1), the same  showed the size  of the land was 5. 48 hectares. It was also his evidence  that he came  to learn that adjudication officers were taken  to  ground  by the first defendant using   the same documentation as his as result of which  the first defendant was allocated the same plot number 710(DEX NO 2).  The  plaintiff added that he saw the area  chief who directed him to the  area district officer. He said that he later got  another letter (PEX NO.3) which allocated  him a different plot whose number was 709measuring 3. 51 hectares.  That  he complained  to a lands officer by the name of Mr. Njagi about it. He pointed out that he received a letter from the lands office Mtito dated 2nd February, 2011 (PEXNO.4) to acknowledge that his complaint was genuine. According to him, he and the first defendant were advised to maintain the boundaries and  at the same time they were advised  to seek  remedies in court(see PEX NO. 5).  He went on to say that he received another letter from the same office dated 2nd November, 2011(PEX NO. 6) to notify him not  to expect to  get consent from them. He pointed out that he also got another letter (PEX NO. 7) from the Divisional Lands Officer advising  him that officers would visit the ground.  He added that when the officers visited,  they told him that  his land should  measure 7. 97 hectares as it appears on the ground. He went on to say   that the same offers said that plot number 709 should measure 1. 02 hectares on the ground even though it showed  3. 51 hectareson the map. It was his evidence that the officers gave him a certified demarcation map (PEX NO. 8) and that  when he was called  to pick a new allotment  letter dated 11th January, 2011 (PEX NO. 9), It showed  the acreage of  plot number  709 as 3. 51 hectares  as a result of which he  his lawyer wrote  a demand  letter to the  first defendant on the 18th November, 2011 (PEX NO. 10) since his plot was  710measuring  7. 97 hectares.  He went  on to say that he wrote  another letter (PEX NO. 11) to the  Director of Land  Adjudication and Settlement to complain over  parcels numbers 709 and 710 .  The plaintiff further said that on the 28th October, 2011he wrote  another letter (PEX NO. 12)  to demand  the demarcation map  be  amended  but  instead he received a gazette notice dated 20th  June, 2014 from the National land Commission  that  the first defendant as  the owner  of plot number  710 measuring 1. 965 hectares while  his was 709measuring  0. 10 hectares. His prayers therefore are to have this court to enter judgement in his favour.

3. The plaintiff’s counsel had not filed his submissions by the  time of writing  this judgement.  Nevertheless I am satisfied  that the plaintiff  has adduced uncontroverted evidence and I  see no reason why judgement cannot be entered for him  and against the defendants.

4. From the two  allotment letters (see PEX NO. 1 and 2 respectively) issued to the plaintiff and the first defendant, it is clear that each one of them was allocated plot number  710 whose size was  5. 48 hectares. The second  and  the third  defendants ought to have addressed the plaintiff’s complaint  appropriately in line with  their  letters dated  2nd  February, 2011 (PEX NO. 5), 2nd  November, 2011(PEX No. 6), 12th October, 2011 (PEX NO. 6) and 12th October, 2011 (PEX NO 7).  The plaintiff had legitimate expectation to be allocated plot number 710 whose measurement was 7. 97 hectares. In the circumstances, I hereby proceed to enter  judgement for the  plaintiff  and against  the defendants jointly and severally as  hereunder:-

a. A declaration that plot No. 710 measures 7. 97 hectares and not 1. 02 hectares belongs to the Plaintiff.

b. An order compelling the correction  of the anomalies of measurements of Plot No. 710 by the 2nd  Defendant in  the  Map and on the ground so  that  defendant’s  letter  of  allotment is changed  to read 1. 02 Hectares and the Plaintiff’s letter of allotment changed to read 7. 97 Hectares and the map redraw to reflect the true position on the ground.

c. An order compelling the 3rd Defendant to direct the 2nd defendant herein to correct the anomalies of measurements on the Map to reflect the measurements on the ground of plot No. 710.

d. An order compelling the 1st Defendant sign or execute all the necessary documents in the correction and rectification process of the above said measurement anomalies and in default the Deputy Registrar of this Court to do so.

e. An order of injunction restraining the 1st Defendant from further trespassing to the Plaintiff’s portion of land.

f. Costs of the suit.

g. Any other relief this Honourable Court deems fit and just to grant.

It is so ordered.

Signed, Dated and Delivered this 5th day of December, 2017

MBOGO C.G

JUDGE

Mr. Kwemboi Court Assistant

Mr.  Manthi, Masika  for plaintiff  Absent

Plaintiff called absent

MBOGO C.G

JUDGE