Patroba Jelagat Simotwo,Joseph Otieno Ouma,Daniel W.A.Obambo,Dorothy Achieng & Michael Buore Ngesa v Phillister Auma Simba [2019] KEELC 3663 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT OF KENYA

AT NAKURU

ELC NO   231 OF 2013

(CONSOLIDATED WITH NAKURU HCCC NO.291 OF 2009

AND

NAKURU HCCC NO. 197 OF 2012)

PATROBA JELAGAT SIMOTWO............................PLAINTIFF

VERSUS

PHILLISTER AUMA SIMBA................................DEFENDANT

AND

JOSEPH  OTIENO  OUMA..............................1ST  PLAINTIFF

DANIEL  W. A. OBAMBO................................2ND PLAINTIFF

DOROTHY ACHIENG.....................................3RD PLAINTIFF

MICHAEL  BUORE NGESA...........................4TH  PLAINTIFF

VERSUS

PATROBA JELAGAT SIMATWO.......................DEFENDANT

JUDGMENT

(Vendor selling ¼ acre plots identified by way if alphabet in an allotment letter; vendor proceeding to prepare  a subdivision plan not conforming to the plots  in the sale  agreements; vendor subdividing  the defendants’ plots into smaller plots and she retaining  the balance of the acreage as new plots; subdivision and the emerging titles declared fraudulent; one subdivision sold; buyer not an innocent purchaser for value; title to the plots cancelled and court ordering  a new subdivision into ¼  plots for the defendants).

1. This is a consolidated judgment for three suits. The first of the three suits was commenced through a plaint filed on 13 October 2009 by Patroba Simotwo with the defendant being Pilsta Auma Simba. The same was filed in the High Court of Kenya at Nakuru and registered as Nakuru HCCC No. 291 of 2009. The second suit was filed on 4 June 2012, again in the High Court of Kenya at Nakuru, by one Joseph Keya Makhulu against Phillister Auma Simba (same defendant in Nakuru HCCC No. 291 of 2009 who is described as “Pilsta” in the former suit). It was registered as Nakuru HCCC No. 197 of 2012. The third suit was filed on 11 March 2013, in the Environment and Land Court at Nakuru, and was registered as Nakuru ELC No. 231 of 2013. The plaintiffs are Joseph Otieno Ouma, Daniel W.A. Obambo, Dorothy Achieng, and Michael Buore Ngesa. They have sued Patroba Jelagat Simotwo (the same plaintiff in the case Nakuru HCCC No. 291 of 2009). The three cases raise similar issues of fact and law and were consolidated and heard at the Environment and Land Court.

2. In the suit Nakuru HCCC No. 291 of 2009, Patroba claimed to be the owner of the land parcel Nakuru Municipality Block 14/713 measuring 0. 05 Ha. She claimed that the defendant, Phillister, is the owner of the adjoining plot, Nakuru Municipality Block 14/714, and that she (Phillister) had on 9 October 2009  encroached into her plot by constructing a wall. She thus asked for orders of injunction against Phillister. Together with the suit, Patroba filed an application for injunction which was allowed by Ouko J, in a ruling dated 15 January 2010, vide which he ordered that further construction of the wall do stop. Phillister filed a defence and counterclaim vide which she pleaded that on 24 July 1997, she and Dorothy Achieng (Dorothy) purchased from Patroba, a plot number D at a purchase price of Kshs. 180,000/=. The two took possession and shared it equally between themselves. At the time of purchase, the plot had not been surveyed and was only described as Plot D. Part of this Plot D is Nakuru Municipality Block 14/713 which she asserted she is entitled to own. She thus asked for the cancellation of the title of Patroba and the same be registered in her name. She also complained that Patroba was now demanding grossly exaggerated sums of money as transfer fees. She averred that Patroba is now colluding with one Jedidah Nyamama with an aim of dispossessing her.

3. In the second suit, Nakuru HCCC No. 197 of 2012, Phillister has again been sued by Joseph Keya Makhulu (Makhulu). In the suit, Makhulu pleaded that he has purchased the land parcel Nakuru Municipality Block 14/713 from Patroba and that Phillister is unlawfully occupying it. In the suit, he asked for vacant possession and a permanent injunction against Phillister.  Phillister again filed defence and counterclaim. She pleaded inter alia that she is in possession of the land having purchased it as a Plot D, from one Elijah Langat and later Patroba, and that she has settled on the land and has comprehensively developed it. She pleaded that the property is yet to be transferred in her name owing to various frustrations occasioned by Patroba. She contended that the land had already been sold to her and that Patroba no longer had any land to sell to Makhulu. She was of the view that the land was fraudulently transferred to Makhulu, as the land was still subject of the case Nakuru HCCC No. 291 of 2009 and that the property was purchased while she was in possession and had developed it. She asked that Makhulu’s title be cancelled.

4. In the suit Nakuru ELC No. 231 of 2013, the four plaintiffs, Joseph Otieno Ouma, Daniel W.A. Obambo, Dorothy Achieng, and Michael Buore Ngesa sued Patroba,claiming that Patroba sold to them the plots described as Plots Nos. H, F, D and G respectively, which are now registered as Nakuru Municipality Block 14/716, 717, 718, and 719; Nakuru Municipality Block 14/708,709,710, and 711; Nakuru Municipality Block 14/714 and 715; and Nakuru Municipality Block 14/710,711, 716 and 718. They averred that they have developed these plots and reside in them. At the time of purchase, Patroba held an allotment letter and it was thus not possible to transfer the properties. They claimed that Patroba is now making exaggerated demands for rates and survey fees and Patroba has now declined to give them title. They asked for specific performance and costs.

5. I have already mentioned that the three suits were consolidated and I took the evidence of all the parties. I consider Patroba as 1st plaintiff and Makhulu as 2nd plaintiff. The rest I consider as defendants with a counterclaim. I will therefore sometimes refer to them as defendants.

6. On her part, Patroba’s evidence was to the effect that she got allotted the land where the plots in dispute are located through an allotment letter dated 18 August 1995. She went to the survey office to have the land surveyed but around this time she suffered an accident which led to her being hospitalized. While she was in hospital, another allotment letter dated 4 July 1996, was issued to the District Surveyor (Mr. Elijah Langat) and the Land Registrar. When she came out of hospital, she found that Mr. Langat had already sold the Plot D to Phillister and Dorothy. Her allotment was however reinstated and she got a title to the whole of the land which was the land parcel Nakuru Municipality Block 14/395 (herein after described as Plot No. 395). She then subdivided this plot to produce 18 plots.

7. She stated that when she got out of hospital, she held a meeting with the persons who had purchased portions of the land from Mr. Langat. These comprised of Phillister, Dorothy, Ouma, Obambo, Michael and other 7 persons not parties to this suit. They had already taken possession of the land but she agreed that they could remain where they were until survey was done. They also agreed to purchase the land from her and they proceeded to write sale agreements before advocate Lawrence Mwangi.

8. The 18 subdivisions ran from the plots number 705 to 722 and were registered in her name on 24 October 2018. She claimed that she sold to Phillister Plot No. 714; to Dorothy Achieng, Plot No. 715; to Daniel Obambo, Plot No. 707; to Joseph Ouma plot 717; to Keya Makhulu, plot No. 713; and to Michael Buore Plot No. 718. She complained that some have encroached into some of her parcels of land which she has not sold. She asserted that everyone needs to stay in their portions but they need to also pay her some more money. She mentioned that Joseph Ouma owes her Kshs. 20,000/=; Daniel Obambo owes her Kshs. 60,000/=; and that Michael Buore and Dorothy owe her some money the exact amount which she did not know. She did not ask for any money from Phillister. She stated that she is ready to process title to all of them if they can stay in their plots and if she is paid.

9. Cross-examined, she testified inter alia that the whole plot is 3 acres and when allotted had been apportioned into 12 pieces. Some of these were sold but through secondary allotment letters bearing the names of the purchasers while she was in hospital. When she came from hospital, she discussed with these purchasers and agreed that instead of them vacating, she could sell the land to them, after survey but not as they occupied it. She acknowledged entering into sale agreements with the occupants and in these sale agreements the plots were described with the letters such as A,B,C and D. She had a sale agreement jointly with Phillister and Dorothy dated 24 July 1997, and the Plot being sold is described as Plot No. D. The consideration was Kshs. 180,000/= and each of the two buyers were to pay Kshs. 90,000/=. She said that Phillister has paid in full but Dorothy still owes Kshs. 30,000/= although she wasn’t too sure. She also acknowledged having an agreement with Joseph Otieno Ouma, dated 12 July 1997. What was sold was Plot No. H at a consideration of Kshs. 180,000/=. She claimed that she is still owed Kshs. 20,000/=. With Daniel Obambo, they entered into an agreement on 19 May 1997. The plot being sold is described as Plot No. F and the purchase price is Kshs. 115,000/=. She asserted that she is still owed Kshs. 60,000/= for this sale. She also had an agreement with Michael Buore for the Plot No. G which was sold at Kshs. 85,000/= which was paid in full. She acknowledged that she has not processed title to them and claimed that they have not given her money for land rates and land rent.

10. She denied that she went and undertook a different subdivision plan after entering into sale agreements with them. She claimed that each of the purchasers described what they occupied to the advocate Lawrence Mwangi and that is why they bear the alphabet number describing the plots. She explained that of the 18 plots, some measure 50X 100 feet (1/8th of an acre) whereas some measure 100X100 feet (1/4 acre). She admitted that those with the ¼ acre plots added her some money so that their plots remain as a whole i.e as described in the original alphabet plots. She denied subdividing further the plots A,B,C and D. The old Plot No. D is now comprised in the plots No. 713, 714 and 715. She testified that Plot No. 713 is hers and she sold it to Keya Makhulu, that Plot No. 714 is for Philllister, and Plot No. 715 for Dorothy. She admitted transferring the Plot No. 713 to Keya Makhulu while the case Nakuru HCCC No. 291 of 2009 was still pending determination.

11. In his evidence, Joseph Keya Makhulu, testified that he purchased the land parcel No. 713 from Patroba through a sale agreement dated 17 September 2010 and the title was transferred to his name. He stated that when he purchased the land the same had beacons and was not occupied nor developed. Neither was there an encumbrance registered in the title. Later, he found a perimeter wall developed by Phillister and he wrote to her a demand letter dated 17 May 2012. He then sued her and he wants her out of his plot. Cross-examined, he acknowledged that he has an aunt by the name Jedidah Nyamamu who lives near the plot that he bought. He said that when he bought the plot it was vacant but currently there are temporary mud walled structures. When he bought the land he did not ask if anybody was claiming it but he did a search. He stated that he did not know that there was a case over the land. He denied colluding with Patroba to defraud Phillister.

12. Phillister Auma Simba, testified inter alia that the Plot No. D was first sold to her by Elijah Langat. She bought this plot jointly with her sister Dorothy at Kshs. 80,000/=. When the plot was sold to them, it had an allotment letter which had an accompanying PDP describing the plot as Plot No.D. She went to fence the plot but Patroba emerged. She (Patroba) reported Mr. Langat to the police and Mr. Langat agreed to refund the Kshs. 80,000/= which he did. They (Phillister and Dorothy) then entered into a new agreement with Patroba dated 24 July 1997 where Patroba sold the same Plot No.D at Kshs. 180,000/=. The money was equally split between herself (Phillister) and Dorothy and they also split the plot into two equal portions between themselves. She built a mud walled structure on her portion whereas Dorothy built a permanent stone walled house. Later, Patroba demanded Kshs. 300,000/= from them so that she can process for them the title. Afterwards, Mr. Keya Makhulu wrote to her a demand letter asking her to vacate the land. She stated that she has known Makhulu since he was a boy as a son of Jedidah Nyamama. She stated that he was aware that she had bought the plot. She herself called Jedidah to purchase a neighbouring plot which she did. She asserted that what she and Dorothy purchased was a plot measuring ¼ of an acre. She mentioned that she is willing to pay for processing of her title.

13. Cross-examined by Patroba, she denied that it was agreed that the land would later be surveyed and she refuted having been shown the subdivision plan which brought forth the titles in issue. She denied that she was informed of a lease for the mother plot. She denied that what was sold to them was Plot No. 714 and asserted that what was sold was the Plot No. D. She repeated the same evidence when cross-examined by Ms. Omwenyo, counsel acting for Mr. Makhulu.

14. Dorothy Jedidah Achieng testified that she is sister to Phillister and affirmed her evidence that what they bought was a Plot No. D measuring ¼ acre. This plot had already been beaconed when they purchased it. She denied owing Patroba Kshs. 30,000/=. She stated that Patroba wrote to her demand letters first claiming Kshs. 78,000/= then Kshs. 300,000/=. She also demanded the same amount from Phillister. She mentioned that their Plot D is now divided into three plots being Nos. 713, 714 and 715. Plot No. 713 covers Phillister’s portion, whereas Plots No. 714 and 715 cover her portion. Cross-examined, she stated that of the balance she had, she deposited a cheque for Kshs. 35,000/= with Patroba’s lawyer and showed a copy of a cheque in Patroba’s name for this amount. She explained that if she was restricted to Plot No. 715, she would lose her developments in Plot No. 714.

15. Michale Buore Ngesa, testified that Patroba sold to her a Plot No. G on 10 May 1997 at Kshs. 85,000/= which he paid in full. The plot measured 0. 1 Ha (1/4 of an acre). He took possession and made a mud walled structure which he later pulled down and developed a permanent house. He was not aware of the Plot No. 718 but only his Plot No.G. Cross-examined, he reiterated that all purchasers bought plots described by letters and not numbers. He was not aware that on the ground he occupies the plots No. 710,711, 718 and 716 as all he knew was Plot No.G. He had not bought land from Mr. Langat there before and it is Patroba who showed him the beacons.

16. Daniel Walo Awino Obambo testified that he bought Plot No. F from Patroba through a sale agreement dated 18 May 1997 at Kshs. 115,000/=. He paid in full though in instalments. The plot he bought was ¼ acre which he has now developed. Cross-examined by Patroba, he denied owing her Kshs. 65,000/= and stated that he paid this money when Patroba came asking for it for political campaigns.

17. Joseph Otieno Ouma testified that he bought Plot No. H on 12 July 1997 for Kshs. 180,000/=. He paid Kshs. 150,000/= and stated that Kshs. 30,000/= was payable once title is availed. He nonetheless still paid it but he is still awaiting title. He wondered why Patroba was still asking her for Kshs. 78,218. 30/= on 11 January 2007 as refund for rates, rents and remittance of rent charges. Later, Patroba wrote to him asking for Kshs. 300,000/= plus legal fees on 22 October 2009. He explained that it was not clear to him why Patroba was asking for this money although he was ready to pay if indeed it was expended on his behalf. He later came to learn that what he had bought had been subdivided into the plots No. 716, 717, 718 and 719. He stated that he was not consulted when these subdivisions were done and he was not aware of them. What he bought measured ¼ acres. Cross-examined, he acknowledged paying rates for the Plot No.717 but he explained that he needed to do some developments and they could not be approved before rates were paid.

18. With the above evidence, the parties closed their respective cases.

19. I invited parties to submit but Ms. Patroba, acting in person, stated that she will not be filing any submissions. I gave Mr. Gai and Ms. Omwenyo 14 days to file their submissions but I have only seen submissions filed by Ms. Omwenyo acting for Mr. Keya Makhulu. I have not seen any submissions filed  within this time by Mr. Gai. In her submissions, Ms. Omwenyo averred that the sale to her client was above board and that he has a good title to the land parcel No. 713. She did not believe that the sale was tainted with fraud. She submitted that what Phillister got was equivalent to the money that she paid and the disposition of the land parcel No. 713 to her client was not prejudicial to her. She submitted that her client was an innocent purchaser without notice and entitled to the prayers that he asked for. She had a few authorities which she relied on and I have taken them into account.

20. I have considered the matter.

21. What has panned out before me is that Patroba came to be owner of a land measuring 3 acres or thereabouts which was first comprised in an allotment letter. There was however some parallel allotment letters for the same land which had already carved out the land into 11 plots described as Plots No. A to L (plot ‘I’ skipped) all measuring ¼ acre or thereabouts.  The plots were sold to some of the defendants by the owner of the parallel allotment letters as plots A to L (skipping letter ‘I’)but Patroba complained that this land had been wrongly seized  from her and she reported the matter to the authorities. The result was that the person with the parallel allotment letters (Elijah Langat) surrendered the land to Patroba. These buyers, some of whom comprise of the defendants, were already on the ground, and what happened is that Patroba proceeded to enter into fresh sale agreements with the defendants for the same plots that they had purchased from Elijah Langat, who held the parallel allotment letters. It does appear that these plots were well identifiable on the ground with the alphabets (A-L), and in her sale agreements, all the plots are described using their respective alphabets. For the defendants, what they purchased comprised of the plots No. D (Phillister and Dorothy), G (Michael Buore Ngesa) F (Daniel Obambo) and H (Joseph Otieno Ouma). All defendants produced their sale agreements and these agreements confirm this position. These plots A – L measured ¼ acre or thereabouts.

22. What transpired later is that Patroba, instead of preparing a survey plan for subdivision of the land into the ¼ acre plots A to L, (11 plots since ‘i’ was missing) proceeded to subdivide the land into 18 plots some of which comprised of ¼ acre plots and some which were much smaller, to the extent of 1/16th of an acre. She also resold the parcel No. 713 to Keya Makhulu.

23. From what I have gathered, Patroba demanded more money from the buyers, and for those who acceded to her demands, she carved out land measuring ¼ acre to them. Those who refused comprised  the defendants, and since they asserted their rights under the sale agreement that she had with them, she proceeded to assess what they had paid and carve out for them plots that measure what she considered was commensurate to the consideration that she had been paid. She also claimed that some had not fully paid her and that they had also not paid her for processing the titles. The defendants however assert their right to plots measuring ¼ acres as provided for in the sale agreements thus their counterclaim that they are entitled to the plots D, F, G and H, as sold to them.

24. The question to ask is what the intention of the parties was when they entered into the sale agreements. Was the intention that they would purchase ¼ plots as described with the alphabet or was the land going to be resurveyed and then they would get smaller or bigger plots depending on their contribution ? My own assessment of the matter is that when the parties entered into the sale agreements of 1997, the vendor meant to sell, and the purchasers meant to buy, the plots as described in the parallel allotment letters which had already subdivided the land into the alphabet plots A-L . That is why in the sale agreements, the plots are described by their alphabetical identity. If it was the position that what was sold was not the plots as described by their alphabetical identity, nothing could have been easier than to say so in the sale agreements. Indeed the agreements would have referred to the plots as noted in the allotment letter that Patroba held and not as noted in the parallel allotment letters which had already carved out the plots into ¼ acre plots. Moreover, if indeed this was not the intention of the parties, the exact size would also have been mentioned in the sale agreements. I believe that the parties saw no need of mentioning the size in the sale agreements since these were already noted in the parallel allotment letters as 0. 1 Ha (1/4 acre or thereabouts). Again, there is no mention in these agreements that a purchaser would get land pro-rated to the amount that they would pay. The purchase price was fixed and what was being purchased was also fixed and sufficiently described based on the material that was available to the parties at that time.

25. It follows that it was wrong and fraudulent for Patroba to go behind the defendants’ backs and subdivide the land in the manner that she did. When she lodged the application for subdivision, she did not consult the plaintiffs yet they had an interest in the land and were in occupation of the same. What she should have done was to subdivide the land into the Plots A to L, all measuring ¼ acre, or at least, ensure that what she had sold, would be subdivided into ¼ acres. It is therefore clear to me that the subdivision plan that she undertook was a fraud which was aimed at short-changing the defendants the ¼ acre plots that they had purchased. The result of the unfair subdivision is that the alphabetical plots that the defendants purchased now cover several numerical plots which measure less than ¼ acres. All these numerically numbered plots have titles issued in the name of Patroba. The old plot No. D is now covered in the parcel numbers 713, 714 and 715; the old plot No. F, G and H, are now covered in the parcel numbers 709, 709, 710,711,716,717,718, and 719. The plaintiff stated that all these plots are still in her name. She mentioned that she was willing to transfer to Phillister parcel No. 714; to Dorothy parcel No. 715; to David Obambo parcel No. 708; to Michael Buore parcel No. 718; and to Joseph Otieno Ouma parcel No. 717. She however complained that they need to pay her some balances of the purchase price and some money for rates and rents. She stated that she has kept for herself the land parcels Nos. 709, 710, 711, 716, and 719, for her own future use. What I have seen is that these plots that she has mentioned that she has kept for herself are within the old plots F, G, and H, claimed by David Obambo, Michael Buore and Joseph Otieno.

26. I do not see how the defendants cannot succeed in their counterclaim. They are entitled to have land that is equivalent to the acreage indicated in the alphabetical plots because that is what Patroba sold to them and that is what they bought and paid for. The only way that they can get their entitlement is if the subdivision  affecting their plots D,F,G and H, is cancelled and a new one done which ensures that the defendants get land that is equivalent to the ¼ acre that they purchased as described in the parallel allotment letters that they held. I am aware that Patroba claims that she has not been paid some money as purchase price. I am not persuaded. From the evidence, I am convinced that all the defendants paid to her the full purchase price as they had agreed. Even in her evidence, she herself found it difficult to say precisely what she was owed, and sometimes vaguely stated that these are in some documents that she did not have in court. I hold that she was paid in full by the defendants the purchase price for all the agreements that she had with them. She also mentioned that the defendants owe her for money that she paid for the subdivision, rents and rates. I do not see how she can claim these because she did not proceed to undertake the subdivision pursuant to the sale agreements that she had with the defendants. If she had undertaken the subdivision according to the sale agreements that she held, then she would probably have had a fair claim to a refund of what she had expended, if at all this was what the buyers had agreed. The counterclaim of the defendants must therefore succeed.

27. There is the other claim by Joseph Keya Makhulu. He purchased the Plot No. 713 when already there was litigation going on over the same plot. I find it difficult to consider him as an innocent purchaser for value. He had been resident in the area and I am sure he was aware of the dispute between Patroba and Phillister. Even if he was not aware, the plot was occupied, and Phillister had started putting up a fence which in fact is what prompted Patroba to file suit against her. Phillister was in possession all this time. A prudent purchaser would have made inquiries from Phillister since she was in possession and was putting up a fence. Mr. Makhulu does not pass the test of an innocent purchaser for value. The sale to him was only aimed at defrauding Phillister of her land.

28. Section 143 of the Registered Land Act (now repealed) which was operative when this suit was filed provided as follows :-

143. (1) Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than a first registration) has been obtained, made or omitted by fraud or mistake.

(2) The register shall not be rectified so as to affect the title of a proprietor who is in possession and acquired the land, lease or charge for valuable consideration, unless such proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by his act, neglect or default.

29. Ms. Patroba obtained titles to the land parcels Nakuru Municipality Block 14/ 708,  709,  710, 711, 713, 714, 715, 716, 717, 718, and 719, by way of fraud. The fraud is that she proceeded to subdivide what had been allotted to her in a manner that was not agreed with the persons to whom she had sold the ground where these parcels of land are located. Instead of carving out her land into ¼ acres, so that the defendants can get what they had purchased, she subdivided it in a different manner so as to steal land from the defendants and to unjustly enrich herself. Her titles to these parcels of land that I have mentioned must be cancelled and are hereby cancelled. The plot No. 713, was also fraudulently sold to Mr. Makhulu, in order to cement the initial fraud. Mr. Makhulu was not an innocent purchaser for value without notice. He has never been in possession and therefore he cannot be protected by Section 143 (2) of the Registered Land Act, as set out above. His title is also hereby cancelled.

30. It will be observed that I have cancelled all the titles registered in the name of Patroba and Mr. Makhulu and they comprise of the land parcels Nakuru Municipality Block 14/ 708, 709,  710, 711, 713, 714, 715, 716, 717, 718, and 719. I would have ordered a whole survey of the initial parcel Nakuru Municipality Block 14/ 395 but it is not necessary. The plots numbers 705, 707, 706, 720, 721, and 722, are unaffected by this decision as they still retain the ¼ acre size and conform to the old plots A, B, E, J, K and L. However the plots that I have affected in this judgment must be resurveyed so that they conform to the old plots D, F, G and H. I therefore order the Nakuru District Land Registrar, and the Nakuru District Land Surveyor, after cancellation of the titles to Nakuru Municipality Block 14/ 708,  709,  710, 711, 713, 714, 715, 716, 717, 718, and 719, to proceed and resurvey these plots and process new numbers conforming to the size and identity of the old plots D, F, G and H. Once these new numbers are processed, they should be registered in the names of the defendants, following what they purchased as Plots D, F, G and H.

31. For the above reasons the cases of Mr. Makhulu and Ms. Patroba are hereby dismissed. The cases of the plaintiffs in the case No. 231 of 2013 and the counterclaim of Phillister to the cases No. 291 of 2009 and 231 of 2013 succeeds. On costs, Ms. Patroba will shoulder the costs of the suit No. 291 of 2009 alongside the costs of the counterclaim to that suit. Ms. Patroba will also shoulder the costs of the suit No. 231 of 2013. Joseph Keya Makhulu will shoulder the costs of the case No. 197 of 2012 together with the costs of the counterclaim in that suit.

32. Judgment accordingly.

Dated, signed and delivered in open court at Nakuru this 9th day of April 2019.

JUSTICE MUNYAO SILA

ENVIRONMENT & LAND COURT AT NAKURU

In presence of : -

Patroba  Simotwo- absent.

Keya Makhulu- present.

Plhillister Auma- present.

Dorothy Aching (Defendant) – Present.

Plaintiffs in 231/2013 present save for Daniel Obambo.

Mr. Mutai holding brief for Ms. Omwenyo for plaintiff in HCC No. 197/2012 (Joseph Keya Makhulu).

Mr.  Mureithi holding brief for Ms.  Kipruto for the plaintiff  in case No.291/2009 ( Patroba  Simotwo).

Court Assistant : Janepher  Nelima /Kemboi.