Paulina C Maiyo v Sally C Korir, District Land Registrar (Nakuru) & Attorney General [2013] KEHC 3033 (KLR)

REPUBLIC  OF  KENYA

IN THE  HIGH  COURT  OF  KENYA  AT   NAKURU

CIVIL  SUIT  NO 59  OF  2012

PAULINA C  MAIYO………………..…...…………PLAINTIFF

VERSUS

SALLY C KORIR……………….…..….……..1ST DEFENDANT

DISTRICT LAND REGISTRAR (NAKURU)…………….2ND DEFENDANT

THE ATTORNEY GENERAL …..………….3RD DEFENDANT

RULING

By a plaint dated 7th November, 2012 the plaintiff Paulina Maiyo, instituted this suit against the defendants seeking  the following orders:-

Cancellation of title issued to the 1st defendant by the 2nd defendant over Nakuru /Likia/ 815 (hereafter referred to as the suit land) and the same be reissued to the plaintiff.

A permanent injunction restraining the 1st defendant, her agents and/or servants from entering and or trespassing on the land parcel Nakuru/ Likia/815.

Simultaneously with the plaint, the applicant filed a notice of motion of even date seeking among others, the following orders:-

That  pending  the  inter-parties  hearing  of the  application, there be temporary injunction restraining  the  1st defendant,  her agents and  or  servants from  entering and or trespassing on the  suit  property;

That  pending  the hearing and determination of this suit, there be temporary injunction restraining  the  1st defendant,  her agents and  or  servants from  entering and or trespassing on the  suit  property;

Costs  of the  application.

Upon being certified that the application was urgent, the application was set down for inter parties hearing .

The application  is  supported by  the  affidavit  of the  applicant  and  is  premised on the grounds that the applicant is the lawful and beneficial owner of the suit land; That the applicant was allotted the suit land and her name entered in the area register: That she took possession of the suit land and has carried out  developments therein: That  in May 2001 when the plaintiff went to apply for a title deed,  she found that that the suit land had been registered in the name of the 1st  respondent who now entered into the suit land and commenced construction.

The application is strenuously opposed. In an affidavit sworn on 18th December, 2012 the 1st respondent  deposes that she is the registered absolute owner of the suit land after being allocated the same measuring 5 acres in 1997 and later obtaining a title deed on 31st January 2000. She avers that she has been in occupation of the suit land since 2000 without any interference until 2012 when the plaintiff started claiming the whole portion of the 1st respondents land: That she has neither  encroached nor trespassed on the applicants land but rather it is the applicant who has built a house  for her son on the 1st respondent's land.

The 2nd and 3rd respondents entered appearance but did not oppose the application stating that the issues raised were between the applicant and the 1st respondent.

I  have read and considered  the pleadings  filed by the  respective  parties, the  affidavit evidence adduced  in support  thereof  and the submissions by  counsels  for the respective  parties.

The  application herein  being for a temporary  injunction,  the burden  is on the  applicant  to satisfy  the  conditions  set down  in  Giella  V Cassman Brown &  Co Ltd. ( EA 358, namely  that she  has  a prima facie  case  with a probability  of  success,  that unless  an  injunction  is granted,  she might otherwise suffer injury which  cannot  adequately be compensated  by  an award of  damages; and should  the  court be  in doubt, it will determine  the matter on a balance  of  convenience.

The applicant’s case is that she legal and beneficial owner of the suit land. She states that the  respondent's title was fraudulently  obtained  and that its  ownership is subject of  their  unregistered  interest  thereto ( as a  person in possession or occupation of the suit property). That further, on 25th June, 2012 the District Land Registrar wrote to the 1st respondent asking her to surrender her title. In his letter he stated in part… you are required within 21 days from the date hereof, to surrender the above title which understandably you had yourself registered without the proper procedure  being followed'' and a further letter dated 11th May, 2001 by District Land Registration Officer addressed  to the District commissioner, Samburu stating that indeed the land was allocated to Pauline Maiyo.

It is common ground that the Respondent is the registered owner of the suit property. Being the registered owner, her interest in the suit property is indefeasible. Her aforementioned  contention is based on  Section 27 and 28 of  the  Registered  land Act,  Chapter  300 Laws  of  Kenya  (repealed). The  sections proves:-

“Subject   to this  Act-

27(a)      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;

(b)……………………………………………

28. The right   of  a proprietor, whether acquired on first  registration or whether  acquired  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 lease, charges  and  other encumbrances and to the conditions  and  restrictions,  if any, shown in the register; and

(b)   unless the contrary is expressed  in the register, to such liabilities, rights and  interests  as  effect the same  and  are  declared  by section 30  not  to require Noting on the  register ,

Provided that nothing in this section shall be taken to relieve a proprietor from any duty obligation to which he is subject as a trustee. ( emphasis is  mine).

As such, the 1st respondent is prima facie the indefeasible owner  of the suit  property, together with all privileges and  appurtenances  thereto. However, I hasten  to point  out that unless there is evidence to the contrary the  applicant’s  rights  in the suit  property are by  dint those of the  provisions  of  section  30  of the repealed Registered  Land Act Cap 300 ( which  governed the suit  property when registration was effected) subject to overriding  interest  that  may affect the  property  even though  not  noted  in the register.

Such  overriding  interests  are expressed  under   Section  30 ( supra) to  include the rights  of a person  in  possession  or  actual  occupation   of  land to which  he is entitled in right only of such possession or occupation, save  where inquiry  is made  of such  person  and the rights are not disclosed. See section 30 (g) of the Registered Land Act.

Whereas the respondent  is prima  facie the registered  owner of the  suit  property,  there  is evidence that she  has  been  involved in a long  protracted  dispute with the applicant  and that the applicant is in occupation  of the suit  property( this is confirmed by the District Land Registration Officer in his letter dated 11th May 2001).There being no evidence to prove otherwise, I find the balance of convenience tilts in favour of the applicant and grant prayer 3 of  the orders sought in the application.

The upshot of the foregoing is that the plaintiff’s application dated 7th November 2012 is allowed with costs.

Dated, Signed and delivered in open at Nakuru  this  12th day of  July 2013

L N WAITHAKA

JUDGE

Present

Ms  Langat  for  defendant

Ngure  holding  brief  for  Mrs  Ndeda for  Plaintiff

Stephen  Mwangi: Court  Clerk

L N WAITHAKA

JUDGE