Susan Nyokabi Mwangi King’ori v Nairobi City Council & 2 others [2018] KEELC 2152 (KLR)

copies of the receipts issued by the 1 st Defendant are dated 8/7/1996. They are in respect of stand premium, survey fees and legal charges for the preparation of the leases. She also produced the deed plans for L.R. No. 209/6604/4 and 5 which are dated 19/6/1996. The copies of the unregistered leases dated 30/10/1996 which she produced in evidence were executed by the Town Clerk and Mayor and on her part. She also produced a copy of a letter dated 5/5/2003 addressed to the Director of Surveys seeking certified copies of the deed plans which she claimed she had lost. Several letters were written by Ministry of Lands seeking copies of the deed plans. 7. On cross examination she stated that she made an oral application for allocation of the plots after her husband told her about the plots. Her husband applied for her. Her husband, John Mwangi King’ori was the Mayor of Nairobi in 1996 when the plots were allocated to her. 8. The Plaintiff’s husband gave evidence. He stated that the 1 st Defendant allotted to the Plaintiff three (3) plots through the letter offer dated 3/5/1996. His wife made payments with his assistance and later executed the leases. All the while the 1 st Defendant represented to him and the Plaintiff that the process of registration of the leases was underway. In February 2010 the 2nd and 3rd Defendants encroached on the suit plots and started construction claiming they held valid registered leases which were issued by the 1 st Defendant. He reported the matter to Buruburu Police Station for investigation. He denied allocating the property to himself when he was the Mayor of Nairobi City Council in 1996. He confirmed signing the leases issued to his wife as the Mayor of the 1 st Defendant but denied abusing his office or grabbing the plots. He was not aware and insisted that it was incorrect to say that the land had been leased to YWCA in 1988. He maintained that he was the owner of the Suit Properties because the 1 st Defendant failed to register the leases after he had made payments. He claimed he was in possession of the Suit Properties. 9. The 2nd Defendant gave evidence. He stated that he purchased L.R. No. 209/6604/4 from Justine Maina Nyaga in September 2007 for Kshs. 3.6 million and made payment in accordance with the sale agreement. On 4/3/2008, he purchased L.R. No. 209/6604/5 jointly with the 3rd Defendant from Francis Kariuki Ndirangu for Kshs. 3.4 million which they paid according to the terms of the sale agreement. They started construction on L.R. No. 209/6604/5 and were summoned by the Police officers based in Buruburu in February, 2010 and were requested to cease construction to allow investigations into the two (2) plots. He maintained that he is the lawful owner of L.R. No. 209/6604/4 while he jointly owned L.R. No. 209/6604/5 with the 3rd Defendant. 10. He produced copies of the Deed Plans for the three (3) plots together with the leases for these plots which were registered on 8/7/2006. The 1st Defendant initially leased L.R. No. 209/6604/3 to Mitchell Musimbi, Evans Nyaberi and Josephine Okoth. L.R. No. 209/6604/5 was leased to Francis Kariuki Ndirangu. The witness also produced the agreement for sale dated 25/9/2007 entered into with the original allottees. Copies of the rates demand notes reflected the names of the original leases. L.R. No. 209/6604/5 was transferred to the 2 nd and 3rd Defendants on 21/4/2008 while L.R. No. 209/6604/4 was transferred to the 2 nd Defendant on 21/4/2008. The Defendant also produced the demand for stamp duty declarations on the transfer of the leases. The Defendants produced copies of the payment vouchers for the stamp duty. The 1st Defendant issued receipts for payment for building approvals to the Defendants in September 2009. 11. Parties filed submissions. The issue for determination is whether the Plaintiff has proved that she is entitled to the orders she seeks in the plaint. The Plaintiff maintains that she is entitled to the orders having been allocated the three (3) plots vide the letters of allotted dated 3/5/1996. She executed the lease agreement and argues that she was the first to acquire the Suit Properties. She relied on the decision in Gitwany Investment Limited v. Tajmal Limited & 3 others [2006] eKLR in support of her argument that the first title in time must prevail where the Commissioner of Lands issues two (2) titles in respect of the same land. 12. She also relies on Section 6 of the Land Registration Act which basically states that a certificate of title acquired illegally, unprocedurally or through a corrupt scheme is not to be taken by the courts as prima facie evidence that the person named as the proprietor is the absolute and indefeasible owner. The Plaintiff maintains that the 2 nd and 3rd Defendant’s claim to be bona fide purchasers for value without notice must first be investigated before they can enjoy the protection afforded by the law to bona fide purchasers for value without notice. She denies that the 2nd and 3rd Defendants carried out due diligence before purchasing the suit plots and that they were part of the scam. 13. She urges the court to order the cancellation of the entries in the register under Section 80 of the Land Registration Act which empowers the court to order rectification of the register by directing that any registration be cancelled or amended if the court is satisfied that the registration was obtained or made by fraud or mistake. The Plaintiff urges the court to direct the 1 st Defendant to finalise the registration of the leases over the Suit Properties in her name. 14. The 2nd and 3rd Defendants in their submissions contend that the fact that the Plaintiff knew very little about the transaction confirms that her husband who was then the Mayor of Nairobi was actually allocating himself the three (3) plots using the Plaintiff’s name. The Defendants urged that it was irregular for the Mayor to execute the leases in favour of the Plaintiff for the allocation of the plots. They maintain that they were innocent purchasers for value who purchased the plots from original allottees and that the Plaintiff failed to prove any fraud on their part. They argue that Section 25 and 26 of Land Registration Act protects them since they are registered lessees and that the evidence of the Plaintiff is insufficient to impeach their rights to the three (3) plots. They argued that the case of Gitwany Investments Limited is distinguishable because in that case the Commissioner of Lands had issued two (2) titles over the same piece of land unlike the instant case where the Plaintiff does not hold the title over the three (3) plots. 15. The 1st Defendant in its submissions urges that the suit lacks merit since the plots were never allocated to the Plaintiff. It submits that the Plaintiff cannot seek the court’s intervention to secure the proprietary rights that she is not entitled to in the first place. 16. The Plaintiff relies on the letters of allotment and the leases which are not registered in support of her claim. The Plaintiff’s husband executed the leases in favour of the Plaintiff in 1996. He gave no explanation as to why the leases were not registered in favour of the Plaintiff when they were prepared. The letters of allotment and the unregistered leases cannot confer title to the Plaintiff. There was no evidence adduced to show that the Plaintiff took possession of the Suit Properties in 1996 which is when she claims the plots were allocated to her by the 1st Defendant.

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17. The 2nd and 3rd Defendants were registered as lessees and issued certificates of lease over the Suit Properties. Under Section 26 of the Land Registration Act, the court is to take the 2 nd and 3rd Defendants’ certificates of lease over the Suit Properties as prima facie evidence that they own the property unless it is demonstrated that there was fraud or misrepresentation in their acquisition to which these Defendants were party; or if it is shown that the certificates of title were acquired illegally, unprocedurally or through a corrupt scheme. The Plaintiff failed to prove these grounds against the 2nd and 3rd Defendants. 18. Weighing the evidence of the Plaintiff against that of the Defendants, the court finds that Plaintiff has failed to prove her case on a balance of probabilities. The suit is dismissed with costs to the Defendant. Dated and delivered at Nairobi this 26th July 2018. K. BOR JUDGE In the presence of: Mr. Kairu for the Plaintiff Ms. Irubgu for the 2nd and 3rd Defendants Mr. V. Owuor- Court Assistant No appearance for the 1st Defendant

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