Thomas Kirui v Joshua Odhiambo Tollo [2022] KEELC 490 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT & LAND COURT

AT NAIROBI

ELC CASE NO.921 OF 2016

THOMAS KIRUI................................................................................................PLAINTIFF

=VERSUS=

JOSHUA ODHIAMBO TOLLO....................................................................DEFENDANT

JUDGMENT

1. By a the plaint dated 28th July 2016, the Plaintiff prays for judgement against the Defendant for:-

a)  A declaration that the Plaintiff is the lawful owner of land parcel No. LR 209/13406.

b)  An order of eviction of the Defendant, his servants or agents from land parcel No.LR  209/13406(LR 209/11036).

c)  A permanent injunction restraining the Defendant, his servants or agents from entering, remaining in or trespassing onto land parcel No.LR  209/13406(LR 209/11036).

d)  Costs.

2. The Plaintiff’s case is that he is the registered owner of land parcel No. LR 209/13406 Villa Franca, Nairobi pursuant to Grant No.92658 dated 20th December 2002. The Plaintiff contended that on or about March 2016, he discovered that the Defendant had unlawfully entered onto the suit land and erected a perimeter wall and thereafter commenced construction of a permanent structure on the parcel of land and despite a demand to stop, he has refused.

The Defendant’s case

3. The Defendant filed a Notice of appointment of Advocates dated 1st September 2016. He then filed a statement of defence and counterclaim dated 1st March 2018.

4. The Defendant contended that that he is the lawful owner of the suit plot having purchased the same from Mukuru Kwa Njenga Women’s project which was the original allotee of the parcel of land and that he took possession of the premises in November 2006 upon payment of half the purchase price in line with the sale agreement between himself and Mukuru Kwa Njenga Women’s project and a letter of allotment was processed in his name.

5. He further contended that he has enjoyed quiet peaceful occupation of the suit plot ever since purchasing the same and it was not until 2016 that the Plaintiff started claiming ownership of the same.

6. It was the Defendant’s case that he has been paying land rent, rates and other payments from time to time and that approval of construction of the perimeter wall was given way back in 2017 by Nairobi City County in which year the wall was constructed as well as the house within the premises.

7. He contended that the Plaintiff’s title is a product of illegality and particularized allegations of fraud against the Defendant. He prays that he be declared the lawful owner of the suit property.

The Plaintiff’s evidence

8. PW1, Charles Kipkirui Ngetich  a principal land registration officer at the Ministry of Lands testified on 24th September 2020.  He told the court that Grant No IR .92658-LR.No.209/13406 is a leasehold property measuring 0. 091300 hectares in the name of Thomas Kirui.

9. It was his testimony that he got a copy of the title to IR No.654752 issued to Joshua Odhiambo Tollo and provided to him by the Plaintiffs and upon investigation, he found it to be a forgery. He added that his colleagues also confirmed his findings as there is no such number in the register as registrations are currently in the 200,000’s.

10. He told the court that the Commissioner of lands Wilson Gachanja is purported to have signed the Grant on 22nd December 2001 yet registration was done before the commissioner on 21st December 1999 which is an anomaly since registration cannot be done before the commissioner grants the land.

11. He also stated that in 2001, the commissioner of lands was Sammy Mwaita and not Wilson Gachanja. He further stated that where it is written Registrar of Titles, the name should be indicated but the Defendant’s title does not state who drew the instrument thus he cannot tell who signed it. He concluded that the title is a forgery.

12. He stated that the booking number is not indicated as there is no presentation book and no time of booking and further that stamp duty was not paid. He also stated that in 2000 and 2001, Titles would be impressed not franked.

13. PW2, Thomas Kirui, the Plaintiff testified on 24th September 2020.  His witness statement dated 28th July 2015 was adopted as part of his evidence in chief. In his statement, he stated that on 28th April 1998, he was allocated plot No.LR 209/13406 Villa Franca and on 20th December 2002, he was issued with a grant No.IR 92648.  He also obtained a survey plan for the plot.

14. He further stated that in March 2016, he discovered that the Defendant had entered and trespassed onto his plot and he reported the matter to the area chief who summoned the Defendant. He added that at the Chief’s office, the Defendant produced Title No.L.R 209/11036 which comprised of the Plaintiff’s plot NO. LR.209/13406 then he commenced construction.

15. He told the court that the Defendant’s title is issued on 21st December 2001 but it was registered on 21st December 1999 and the sale agreement is dated 17th November 2006.

16. He further stated that he sought a search of the suit property in 2017 as he suspected forgery. He stated that survey planNo.318/69 quotes a letter of allotment dated 26th February 1997 for unsurveyed plot in Villa franca LR No.209/11036  measuring 0. 11 hectares. He added that LR No 209/11036 was cancelled and that the deed plan annexed to the Defendant’s title was not there and as such prayers sought in the plaint ought to be granted.

17. When cross-examined, he stated that he has attached a letter of allotment and he paid the premiums as per the letter of allotment. He further stated that he has the invoices for rates but he has not paid owing to this case but he is ready to pay.

18. He stated that he fenced the plot in 1997 but he has not developed it and he has always visited.  When referred to grants IR No.92658/1 and IR No.92658,he stated that they are different numbers.

19. He stated that the Defendant put up a wall and started construction in March 2016. He also stated that from the deed plan, adjoining plots are 209/11035 and 209/11037 but there was a subdivision before that and his grant was issued on 1st ,  May 1998.

20. When referred to special condition No.2, he stated that he did not comply as he was looking for resources to do so.

Evidence of the Defendant

21. DW1, Joshua Odhiambo Tollo, the Defendant testified on 22nd September 2021. He told the court that the suit property was advertised in the Daily Newspapers and he bought it from Mukuru Kwa Njenga Women’s project in 2006, he paid Kshs.3. 2 Million and took possession and put up  a perimeter wall. He stated that the Plaintiff claimed the land in 2016 but his claim is for a different plot which is a subdivision of his plot. He stated that he owns part of the portion claimed by the Plaintiff which he has developed  by putting up houses built in 2007 and that there is another construction which has now got up to the  3rd floor.

22. He also stated that he has been paying land rent and rates for the suit property and asked the court to allow him to develop the plot that he bought.

23. When cross-examined and refereed to the letter of allotment issued on 1st July 1998 to the allotee, Mukuru Kwa Njenga Women’s project, he stated that he was not sure whether  the allotee was a legal entity.

24. When referred to the title in his name, he stated that it is not signed but it came from the commissioner of lands. He also disowned it and stated that it is not his title as he has not been issued with a title yet and all he has is the Letter of Allotment. He stated that he had no deed plan on his list of documents as he has been waiting to be supplied with title by the lands registry.

25. When referred to the sale agreement between him and the vendor, he stated that  he paid consideration to Mukuru Kwa Njenga Women’s project by cheque No.101487  of kshs.800,000/= in 2007  and cheque No.101355 to Gichigi Burugu & Company Advocates for kshs.800,000/= and stated that they were personal cheques but he has nothing to show that they were cashed.

26. When referred to the survey map produced by the Plaintiff showingLR 209/11036 was cancelled, he stated that he did not challenge the decision to cancel LR 209/11036 and he does not recall what the Registrar of Titles told the court or that he stated the plot does not exist.

27. He stated that the developments have not been going on during the subsistence of the suit as he stopped construction in 2017,2018 but he has still been paying land rates for LR No.209/11036 and he has documents which show that he has applied to be issued with a Title.

28. When re-examined, he stated that the issue of existence of Mukuru Kwa Njenga Women’s Project has never been raised. And that he is on the whole portion of L.R 209/11036 while the Plaintiff claims a subdivision of the same.

29. At the close of the oral testimonies patties tendered final written submissions.

The Plaintiff’s submissions

30. They are dated 25th October 2021. The Plaintiff submitted that he has a title to the suit land Title NO. IR 92658 for LR 209/13406 and that he produced survey plan FR 199/50 dated 12th March 1997 which cancelled LR 209/11036 and created LR 209/13406 and 13407respectively. He further submitted that the title said to belong to the Defendant which is for LR 209/11036 was declared to be a forgery by the Principal land registration officer in evidence. He added that the Defendant disowned the said title  and he did not challenge the Plaintiff’s evidence that he produced he said title at the Chief’s office.

31. He submitted that LR 209/13406 is a subdivision of LR 209/11036and that the Defendant’s claim has no merit as it is based only on an unsigned allotment letter dated 1st July 1998 issued to an entity called Mukuru Kwa Njenga women’s project; an unregistered entity incapable of holding property. He added that there is no evidence stand premiums and other levies due as per to the allotment letter were paid.

32. He also submitted that while the sale agreement between the Defendant and the vendor indicated that kshs.1. 6 Million had been paid to the vendor’s Advocates, the cheques relied on by the Defendant were issued by an entity called Speotratec Alarms & telecoms which is an entity that was not a party to the agreement.

33. It was his submission that according to Section 24, 25 and 26 of the Land Registration Act, his title can only be challenged on grounds of fraud or misrepresentation which were not proved although alleged by the defendant. He put forward the cases of Hassan Mohammed Haji vMohamed Keynan & another [2019] eKLRand the case of Gichinga Kibutha v Caroline Nduku[2018] eKLR and prayed that the plaint be allowed and the counterclaim be dismissed.

The Defendant’s submissions

34. They are dated 13th November 2021. The Defendant submitted that the root of the Plaintiff’s title was not proved to the standard set in Teresia Wangari Mbuaua v Jane Njeri Nduati & Another [2020] e KLR.

35. He pointed out that the Plaintiff produced a letter of allotment dated 28th April 1998 but he did not demonstrate his acceptance and whether he paid the required premiums. He added that the process culminating in the title being processed in the Plaintiff’s favour was also opaque as he did not produce correspondence touching on how his title was processed and he did not demonstrate that he has been paying rates.

36. It was also his submission that the Plaintiff’s claim is contradictory as in the letter of allotment, the parcel of land captured is LR 209/13406 Villa Franca & the same number appears on the copy of grant that he produced but in the plaint, he seeks land LR No.209/13406(LR 209/11036) which are separate and distinct parcels.

37. He urged the court to dismiss the Plaintiff’s claim for failing to put his prayers to court with clarity and take judicial notice that no parcel of land can have two parcel numbers. He submitted that on his part, he had cogent evidence and he was able to demonstrate how he acquired the plot in dispute by the evidence produced and his testimony that he is currently following up on his title at the lands office.

38. I have considered the pleadings and the evidence on record. I have also considered the pleadings and he evidence on record. I have also considered the written submissions filed on behalf of the parties and the authorities cited. The issues for determination are:-

(i)      Whether the Plaintiff is the owner of LR NO 209/13406.

(ii)     Does LR NO 209/11306 exist?

(iii)    Is the Plaintiff entitled to the relief sought?

(iv)     Is the Defendant entitled to the prayers in the counterclaim?

(v)      Who should bear costs of this suit?

39. PW2, Thomas Kirui the Plaintiff told the court that he is the registered owner of LR NO 209/13406.  He produced a letter of allotment issued by the Commissioner of Lands in his favour.  He  also produced a Title No IR 92658 for LR No 209/13406.  He also produced a survey plan IR 199/50 dated 12th March 1997 and created LR Nos 209/13406 and 13407.  These documents were not challenged by the Defendant.  The Plaintiff’s parcel measures approximately 0. 0913 hectares.

40. PW2, Charles Kipkirui Ngetich the Principal Land Registrar told the court that Title No IR 654752 for LR No 209/11036 does not exist and the same is a forgery.  He told the court that IR Number shown has not been reached.  The grant was allegedly signed by Wilson Gachanja on 21st December 2001 while Registration was done on 21st December 1998.  He further stated that Commissioner for Lands then was Sammy Mwaita.  The name of the Registrar of Titles is not indicated.  The booking stamp and presentation day book numbers were not shown.  Stamp duty was not paid. The area of the parcel of land is shown to be 0. 2013 hectares on the Letter of Allotment while in the Title it is given as 0. 2312 hectares which  is a contradiction.  These are same reasons that made PW2 to conclude that the title to the Defendant is a forgery.

41. The Defendant also told the court that he obtained the title in his names since he bought the suit property in 2006.

42. It is clear from the evidence that LR NO 209/13406 is a subdivision of LR NO 209/11036.  The Defendant admits the parcel is in the same location as his.

43. The  Defendant relies on the sale agreement dated 17th November 2006 between him and M/S Mukuru Kwa Njenga Women’s Project.  The alleged vendor relied on a letter of allotment dated 1st July 1998.  The said title is not signed by the allocating authority.  There is no evidence that the standard premium and other charges were paid. The Defendant could not even prove that he paid the purchase price.

When cross examined by the Plaintiff’s counsel, the Defendant told the court that he did not challenge the decision to cancel LR NO 209/11036.

44. I find that the Plaintiff has been able to explain the root of his title. I find that he is the registered owner of LR NO 209/13406.

45. From the evidence of PW1, LR No 209/11036 does not exist. His evidence was not challenged by the Defendant. The Defendant is unable to explain the root of his title.  In the case of Munyu Maina vs Hiram Gathiha Maina [2013] e KLR the Court of Appeal  held that:-

“We have stated that when a registered proprietor’s  root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register”.

46. Having found that the Plaintiff is the registered owner of  LR NO 209/13406 he is entitled to the reliefs sought in the Plaint.

47.  Section 26 of the Land Registration Act, 2012 provides that:-

“(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.

48. For these reasons, I find that the Defendant’s counterclaim fails as his title does not exist.  His counterclaim is dismissed with costs to the Plaintiff.

49. In conclusion, I find that the Plaintiff has proved his case against the Defendant on a balance of probabilities.  I enter judgment in his favour as follows:-

(a)   That a declaration is hereby issued that the Plaintiff is the lawful owner of LR NO 209/13406.

(b)   That an order of eviction is hereby issued against the Defendant his servants or agents from LR NO 209/13406 (LR NO 209/11036).

(c)   That a permanent injunction is hereby issued restraining the Defendant his servants, or agents from entering, remaining in or trespassing onto LR NO 209/13406, villa franca (LR NO 209/11036).

(d)   That the Plaintiff shall have costs of the suit.

It is so ordered.

DATED, SIGNED AND DELIVEREDNAIROBITHIS 24TH DAY OF MARCH 2022.

...........................

L. KOMINGOI

JUDGE

In the presence of:-

Mr. Kimani for the Plaintiff

No appearance for the Defendant

Steve - Court Assistant