Paul Ndirangu Mbugua & 149 others v Ministry of Lands & 85 others [2021] KEELC 4157 (KLR)

property. 5. Vacant possession of the suit property. 6. An order of cancellation of Title Deeds No.s Naivasha/Moi Ndambi/17, 42, 60, 62, 93, 142 and all other title deeds issued in respect of the suit property. 7. Costs of this suit. 8. Any such other or further relief as this Honourable Court may deem appropriate. 4. Although the Attorney General participated in the proceedings on behalf of the 1 st to 3rd defendants in ELCC No. 338 of 2014 and despite being given ample opportunity to do so, the said defendants did not file any statement of defence or any witness statement. They did not also comply with Order 11 of the Civil Procedure Rules. For those reasons and in view of the ruling delivered by this court on 22 nd May 2018, they did not offer any evidence. 5. Equally, by plaint dated 4th December 2014, the plaintiffs in ELCC No. 334 of 2014 averred that they are the owners of all the plots in Phase 1 – Moi Ndabi Settlement Scheme with title documents for their individual plots and that the defendants in the said case have encroached on and occupied their plots. They added that they obtained orders in Nakuru High Court Petition No. 46 of 2013 directing the Settlement Fund Trustees, Commissioner of Lands and the Attorney General to secure Phase 1 – Moi Ndabi Settlement Scheme to ensure they peacefully occupy their land but the said officers failed to execute the order. Consequently, they sought judgment against the defendants in the said case for: a) A permanent injunction restraining the defendants from sub-dividing and/or further developing all that land comprised in Phase I - Moi Ndabi Settlement Scheme. b) Eviction of the defendants from all those plots in Phase I - Moi Ndabi Settlement Scheme. c) Costs of this suit. 6. At the hearing, Paul Ndirangu, the 1 st plaintiff in ELCC No. 338 of 2014, testified in support of the plaintiffs’ case. He adopted his witness statement dated 17th October 2017 as part of his evidence in chief. Owing to the nature of his evidence in which he made reference to many plot numbers and many names in a tabulated manner, I find it necessary to reproduce the statement below: PAUL NDIRANGU MBUGUA I am the above named male of sound mind, and a resident of Moi Ndabi Settlement Scheme, in Naivasha. I have the authority of my co-plaintiffs to testify on their behalf in this matter. Our claim here is for all those Plot Numbers 142, 55, 93, 155, 14, 60, 136, 138, 20, 144, 42, 94, 104, 15, 139, 9, 3, 168, 69, 7, 126, 171, 141, 41, 13, 101, 186, 90, 195, 82, 30, 16, 50, 79, 152, 49, 122, 146, 169, 24, 194, 10, 66, 91, 476, 200, 39, 74, 148, 140, 156, 173, 98, 77, 64, 185, 72, 151, 33, 83, 12, 2, 63, 1, 32, 99, 86, 36, 197, 120, 166, 58, 178, 35, 127,115, 61, 40, 88, 188, 78, 112, 76, 70, 28 within MOI NDABI SETTLEMENT SCHEME, PHASE 1. All of the Plaintiffs herein and their families were victims of tribal clashes that occurred in 1992 in Enospukia area. We were all chased away from our homes and lived in various camps internally displaced persons, including in schools and churches. The affected communities were predominantly Kikuyu, Maasai and Kalenjin. In 1994, the then President Moi directed that the 1 st Defendant herein do find a parcel of land to settle us. Through the then Rift Valley Provincial Commissioner, Mr. Chelanga we were offered parcels of land, through offer letters dated 22 nd December 1994 in Naivasha in what came to be known as MOI NDABI SETTLEMENT SCHEME. On diverse dates in the month of December 1994, all the Plaintiffs herein were issued with letters of allocation of land. The respective plots were pointed out to us by the officials of the 1st Defendant. The allocations were as follows; NAMES PLOT NO. 4. 1. PAUL NDIRANGU MBUGUA 142 2. JOHN MBUGUA GIKONYO 55 3. JOSEPH KARIUKI KAMAU 93 4. MARGARET WANJA NGENGA 155 5. PERIS MUTHONI NG’ANG’A 14

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6. AUGUSTINE KAIRU MUNA 7. MALA ELIMU 60 136 8. NJOGU KIMANI KIBIRO 138 9. PETER CHEGE NDIRANGU 20 10. KIGONDU MUTHOKA 144 11. JACKSON NGECHU GITAU 42 12. RUTH NYAMBURA KAMAU 94 13. KIARANJA NJUGUNA NDUATI 104 14. MARGARET WANJIKU GACII 5 15. HANNAH WANJA NJOROGE 139 16. WANJIKU NJUGUNA 09 17. JOHN MECHIRIA KILEMBI 03 18. SALOME WAHU MIRING’U 168 19. ALICE NGAI MUREITHI 69 20. KIBUI KANGARI NJANJA 07 21. MUTURA MUCHIGA WANYAMA 126 22. GEDION NGIGE LETUYA 171 23. MARY WAMBUI NJUGUNA 141 24. JOEL NJENGA WAWERU 41 25. WANGARI M. RUARA 13 26. JOHN NGUU MUNGAI 101 27. GEORGE MACHARIA MWANGI 186 28. CHRISTOPHER GICHUHI NDUNG’U 29. STANLEY MAINA KURIA 195 30. SULEIMAN MURAGE KABANGA 31. CHRISTOPHER NJOROGE 82 30 32. PENINAH WANGUI NDUNG’U 33. WAWERU MUKURIA 16 27 34. JANET KAHAKI NG’ANG’A 35. JAMES GITAU KINIARU 50 79 36. MARY WANJIKU MWAURA 37. HANNAH WANJIKU MWAURA 152 49 90

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38. WANJIKU MUYA 122 39. PATRICIA WANGARI WAIHARO 146 40. JOSEPH KARIUKI KINYANJUI 169 41. GEOFFREY WAWERU KAHINYA 24 42. GIDEON GITE KIRIARI 194 43. JOEL KAMURU KARANJA 10 44. TERESIA NYOKABI WAITITU 66 45. LUCY WAITHERA KANING’U 91 46. HANNAH WANGUI NJOROGE 47 47. JOHN NGECHU NG’ANG’A 200 48. MWAURA WANG’ENDO 39 49. KAMAU KINYANJUI MBUGUA 50. NGUGI KIRUMBA 74 148 51. NAHASHON NGUGI RUKUNGU 140 52. WANJIKU NDUGUGA CHEGE 156 53. MARY WAITHERA NJOROGE 173 54. GEOFFREY MWNGI KIRUA 98 55. WAITHAKA KAMAU MUITA 77 56. WANYOIKE TUNAI 64 57. WAIRIMU WAINAINA 185 58. KINYANJUI MUIGAI MWANIKI 59. MARY WANJIRU BRIBIRIS 151 60. PHILLIS NDUTA MUCHERU 61. KARANJA MATHERI 33 83 62. SOLOMON MBURU KAMAU 63. WANJIKU GIATHI 72 12 02 64. KILISPO MUCHAI NJUGUNA 63 65. GLADYS WANJIKU KAMAU 01 66. MUTHONI GITHAE GACAGE 32 67. JOSEPH MUGI KARERA 68. NJOKI KARANJA 99 86 69. ISAAC GITAU NGE’THE 36

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70. HANNAH WANJIRU NJUGUNA 197 71. EUNICE WACHUKA THUO 72. MUCHAI KIOI 120 166 73. HILARY WAWERU KARANJA 58 74. FLORENCE MUTHONI KARIUKI 75. PETER KURIA CHEGE 178 35 76. GRACE NDUTA NJOROGE 127 77. JULIUS KAMAU WANJAM 115 78. LUCY WANGARE 61 79. WILSON KANUHA KANG’ETHE 80. LUCY NJAMBI KIARIE 81. MBURU MUINAMI 88 188 82. MUCHANJU GITURI WAHUI 83. MWANGI TERA 40 78 112 84. RUTH WAMUCHA NDUNG’U 76 85. PETER KINYANJUI CHEGE 70 86. HELLEN WAMBUI KINYANJUI 28 However, we were surprised to note that our parcels of land measured 2.5 acres each, whereas the members of the other communities, namely the Maasai and Kalenjins were being allocated 5 acres each. The policy of the government then was to allocate 5 acres to each family, and this was well noted even in the Ndung’u Land Report. But at that particular time we were desparate, and we therefore had no choice but accept what had been offered. We however complained to the government through the provincial administration of the discriminatory manner in which this land was distributed. In 1997, our normal lives were disrupted by the infamous Elnino rains. Our homes, property, livestock and crops were destroyed. But we still continued with our occupation on our respective parcels of land. We continued with our normal lives on our respective parcels of land, and at the same time complaining to the successive administrators, officials of the 1st Defendant, through the directorate of Land Adjudication and Settlement, that we ought to be added 2.5 acres so that we could be at par with members of the other communities who had been allocated 5 acres per family. It was not until the year 2004, when the government heeded our calls. The then Minister for Lands and Settlement, Hon. Amos Kimunya, the then area M.P Ms. Kihara and Director of Land Adjudication and Settlement visited us. We explained our predicament, and in particular the discriminatory manner in which the land was allocated. The Minister therefore directed the Director of Land Adjudication and Settlement to get us additional 2.5 acres each. The land was identified within the same area. We balloted for the parcels of land in 2006 measuring 2.5 acres each. We were further issued with Letters of Offer dated 20 th November 2007 and we sought and secured financing in order to pay for these new plots. It is clear from the said letters of offer that the previous allocations in 1994 were not cancelled, but we were given an additional 2.5 acres only for purposes of equaling members of other communities who had been given 5 acres each. The new plots were as follows; NAMES PLOT NO. 1. PAUL NDIRANGU MBUGUA 1469 2. JOHN MBUGUA GIKONYO 1643 3. JOSEPH KARIUKI KAMAU 1637

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4. MARGARET WANJA NGENGA 1433 5. PERIS MUTHONI NG’ANG’A 1505 6. AUGUSTINE KAIRU MUNA 1514 7. MALA ELIMU 1545 8. NJOGU KIMANI KIBIRO 1533 9. PETER CHEGE NDIRANGU 1644 10. KIGONDU MUTHOKA 1554 11. JACKSON NGECHU GITAU 1597 12. RUTH NYAMBURA KAMAU 1646 13. KARANJA NJUGUNA NDUATI 1457 14. MARGARET WANJIKU GACII 1668 15. HANNAH WANJA NJOROGE 16. WANJIKU NJUGUNA 1645 1468 17. JOHN MACHIRIA KILEMBI 1547 18. SALOME WAHU MIRING’U 1570 19. ALICE NGAI MUREITHI 1512 20. KIBUI KANGARI NJANJA 07 21. MUTURA MUCHIGA WANYAMA 126 22. GEDION NGIGE LETUYA 1525 23. MARY WAMBUI NJUGUNA 1449 24. JOEL NJENGA WAWERU 1465 25. WANGARI M. RUARA 1550 26. JOHN NGUU MUNGAI 1447 27. GEORGE MACHARIA MWANGI 1426 28. CHRISTOPHER GICHUHI NDUNG’U 29. STANLEY MAINA KURIA 1478 30. SULEIMAN MURAGE KABANGA 31. CHRISTOPHER NJOROGE 1536 1520 34. JANET KAHAKI NG’ANG’A 35. JAMES GITAU KINIARU 1567 1519 32. PENINAH WANGUI NDUNG’U 33. WAWERU MUKURIA 1648 1487 1411

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36. MARY WANJIKU MWAURA 1471 37. HANNAH WANJIKU MWAURA 38. WANJIKU MUYA 1552 1548 39. PATRICIA WANGARI WAIHARO 1462 40. JOSEPH KARIUKI KINYANJUI 1560 41. GEOFFREY WAWERU KAHINYA 42. GIDEON GITE KIRIARI 1496 1429 43. JOEL KAMURU KARANJA 1473 44. TERESIA NYOKABI WAITITU 1559 45. LUCY WAITHERA KANING’U 46. HANNAH WANGUI NJOROGE 1645 47. JOHN NGECHU NG’ANG’A 48. MWAURA WANG’ENDO 1532 1431 49. KAMAU KINYANJUI MBUGUA 50. NGUGI KIRUMBA 1432 1558 51. NAHASHON NGUGI RUKUNGU 1558 52. WANJIKU NDUGUGA CHEGE 1524 53. MARY WAITHERA NJOROGE 1491 54. GEOFFREY MWNGI KIRUA 98 55. WAITHIRA KAMAU MUITA 1543 56. WANYOIKE TUNAI 1588 57. WAIRIMU WAINAINA 1436 58. KINYANJUI MUIGAI MWANIKI 59. MARY WANJIRU RIBIRIS 1471 60. PHILLIS NDUTA MUCHERU 61. KARANJA MATHERI 1455 1416 62. SOLOMON MBURU KAMAU 63. WANJIKU GIATHI 1523 1667 1890 64. KILISPO MUCHAI NJUGUNA 1538 65. GLADYS WANJIKU KAMAU 1489 66. MUTHONI GITHAE GACAGE 1430 67. JOSEPH MUGI KARERA 1555

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68. NJOKI KARANJA 1636 69. ISAAC GITAU NGE’THE 1561 70. HANNAH WANJIRU NJUGUNA 71. EUNICE WACHUKA THUO 72. MUCHAI KIOI 1415 1446 1451 73. HILARY WAWERU KARANJA 1635 74. FLORENCE MUTHONI KARIUKI 75. PETER KURIA CHEGE 1511 1599 76. GRACE NDUTA NJOROGE 1632 77. JULIUS KAMAU WANJAM 1492 78. LUCY WANGARE 1497 79. WILSON KANUHA KANG’ ETHE 80. LUCY NJAMBI KIARIE 81. MBURU MUINAMI 1533 1563 82. MUCHANJU GITURI WAHUI 83. MWANGI GITERA 40 1574 1488 84. RUTH WAMUCHA NDUNG’U 1405 85. PETER KINYANJUI CHEGE 70 86. HELLEN WAMBUI KINYANJUI 1527 We were therefore surprised that from 2010, the 4 th - 60 Defendants started invading our parcels of land, claiming that they have been allocated our parcels of land which were allocated to us in 1994, by the 1 st Defendant. When we raised the issue with the local provincial administration as well as the 1 st Defendant, we were surprised by their allegations that our allocations of 1994 had been cancelled and replaced with the new plots which we were allocated in 2006 - 2007. This was however, a blatant lie and a scheme by the officials of the 1 st Defendant to grab our parcels of land with the aid of provincial administration. There is no single time that we were informed that our previous allocations in 1994 were cancelled. Even the letters of allocation dated 20th November 2007 did not mention the 1994 allocations having been cancelled, and or the new allocations replacing the earlier ones in 1994. Upon further enquiry, the officials of the 1 st Defendant said that we had requested to be moved due to EI Nino rains. The officials of the 1st Defendant claimed that our plots were to be transferred to Kenya Forest Service for rehabilation (sic) and conservation. However, this has not been the case as all the plots have been allocated to the 4 th to 60th Defendants follows; PLOT NO. 1. FRANCIS NGUGI GITHUA 2. NG’ANG’A KAMAU 142 3. RAHAB WAITHERA NJOROGE 4. M.NUENGA 55 93 5. FRANCIS KIMANI KAMANGA 155

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6. JAMES MAINA KIMURE 14 7. AG. MOHAMED MUKOBWA 60 8. EUNICE MUTHONI KINUTHIA 136 9. FRANCIS KARANJA KAHORO 138 10. JAMES GITAU MUCHAI 20 11. BETH WAMBUI KAMAU 42 12. GATUNDU KARITU 13. JANE MURAA 94 15 14. GEROGE 0. NYANGWESO 139 15. PATRICK GIKONYO KIMITI 09 16. PETER MBURU KAMAU 168 17. FRANCIS KAMANI KANGAU 126 18. MARGARET NJERI KARANJA 91 19. JORAM BARAGU NDIRITU 47 20. JOHN CHEGE KARUMBA 173 21. VERONICA WAMBUI KIARIE 22. JOSEPH GITHEI 98 137 23. JAMES KAMANDE MWANGI 23 24. PETER WAWERU KARANJA 18 25. SAMUEL MWANGI NGOTHO 88 26. JAMES MUNGAI NGOTHO 172 27. MARGARET MWIHAKI NGAHU 28. JOSEPH TOURTHI 180 43 29. HANNAH WAHU NGUGI 48 30. JACKSON MUTUA JOSHUA 19 31. BONIFACE WAMBUA KIOKO 169 32. STEPHEN WAITHAKA MBUGUA 10 33. PAULINE MUKONYO KARANJA 171 34. TERESIA WANJIKU KIBUCHI 13 35. JOSEPH NG’ANG’A KIMANI 90 36. CATHERINE WANYAGA NDWIGA 37. JACKSON MUTUA JOSHUA 16 49

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38. GRACE WAIRIMU MUGO 169 39. SAMSON ONGERI MANYIMBO 24 40. GITAU MWAURA MWEGA 141 41. ELIZABETH NJOKI KARIUKI 42. SIMON MACHARIA.KABANJA 83 43. NAOMI WANJIRU KARIUKI 22 44. PETER NDIRANGU KAMAU 58 45. JANE MUKAMI GITAU 53 46. PETER NJUGUNA MWANGI 47. DORCAS WAITHERA K. 62 86 48. WANJIKU MARY NDUNG’U 92 49. MICHAEL KARIUKI MACHARIA 170 50. EUNICE WANJIKU CUGU 51 51. PETER KAGUTA KARIUKI 59 52. MACHARIA KIMANI KAMIRITA 53. GICHURU NJUGUNA 11 54. DAVID NJOROGE KIMANI 52 55. SIMON WAMWEA NG’ANG’A 56. KAROKO GICHIMU 57. JANE MUKAMI GITAU 17 97 46 124 62 The 1st Defendant has frustrated our efforts to obtain the title deeds for our allocation in 1994, but have gone ahead and processed titles for some of the Defendants herein. The actions of the 1st Defendant are therefore illegal and unlawful. The reasons for dispossessing us our parcels of land on the guise of conservation only for them to turn around and give the same parcels of land to 4 th – 60th Defendants manifests the injustice being perpetrated against us. Some of the Defendants herein are officers of the 1st Defendant. Others were previously members of provincial administration and their relatives. It is therefore clear that the only reason we are being dispossessed of our rightful parcels of land in influenced by corruption and extraneous factors. This injustice being occasioned to the plaintiffs as a result of the actions of the 1 st Defendant has led to the arrest and prosecution of some of the Plaintiffs in the following criminal matters; 1. Naivasha Criminal Case No. 565 of 2011: R -vs- Teresia Nyambura Mugo; 2. Naivasha Criminal Case No. 566 of 2011: R -vs- Mary Waithera Njoroge; 3. Naivasha Criminal Case No. 567 of 2011: R-vs- Margaret Wanja Makumi. However, in all the above cases a judgment of not guilty was entered due to the proprietary rights possessed by the Plaintiffs over the plots.

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Given the above the allocations to the 4 th – 60th Defendants should therefore be cancelled and any title deeds issued revoked. We are therefore seeking for prayers in the plaint. That is all I wish to state. SIGNED BY: PAUL NDIRANGU MBUGUA. DATED: 17th October 2017 7. Mr Ndirangu produced copies of the following documents as exhibits: two letters of allotment dated 22 nd December 1994 in respect of Ngugi Kirumba and Mary Wanjiku; 5 allocation cards in respect of Alice Ngai Murithi, Mary Wanjiku Mwaura, Joseph Kariuki Kinyanjui, Ngugi Kirumba and Paul Ndirangu Mbugua; letter of offer in respect of Paul Ndirangu Mbugua and a letter dated 4 th November 2014 from Muriuki Ngunjiri & Co. He added that when the plaintiffs were allocated the plots in 2007, they were not aware that the earlier allocations were being cancelled by virtue of the second allocation. 8. Under cross-examination and re-examination, Mr Ndirangu stated that the plaintiffs did not request to be relocated due to El Nino. He denied that letters issued to them by the government stated that the relocation was due to floods or that earlier allocations were cancelled. He confirmed that none of the plaintiffs has any title deed in respect of the plots they are claiming. He further confirmed that the plaintiffs were each given a new plot for which they paid to the government and obtained title deeds. That about 200 of them were given the new plots and that it is only 85 of them who have filed this case. He added that the plaintiffs herein filed Nakuru HC Petition No. 11 of 2013 while the defendants herein filed Nakuru HC Petition No. 46 of 2013. That this case was filed after judgment in the petitions was delivered and that the plaintiffs herein did not file any appeal against the judgment. 9. The plaintiffs’ case was then closed. 10. Next on the stand was Mr Francis Ngugi Githua who testified for the 4 th – 60th defendants as DW1. He stated that although the plaintiffs had each been allocated 2.5 acres of land in Moi Ndabi Settlement Scheme Phase I, they were relocated to higher ground at their own demand due to flooding caused by the El Nino rains of 1997 and all the plots reverted to the Settlement Funds Trustees (SFT). He referred to a letter dated 7th January 2010 from Ministry of Lands to the District Commissioner Naivasha. He also referred to a letter dated 8 th December 2010 from the District Commissioner Naivasha to the 1 st plaintiff herein and added that the 1 st plaintiff was relocated pursuant to the said letter. He stated that the plaintiffs’ allocation documents in respect of the initial plots were cancelled by letter similar to the aforesaid letter dated 8th December 2010 and that they were all relocated to new plots. 11. Mr Githua further testified that since the El Nino flooding did not affect all areas of Moi Ndabi Settlement Scheme Phase I, the government settled the 4th to 60th defendants herein on the unaffected higher grounds of Moi Ndabi Settlement Scheme Phase I in the year 2009 by giving them letters of offer. That they complied with the terms of the letters, paid charges specified, the parcels were transferred to them and they were issued with titles. According to him, the 4 th to 60th defendants herein validly own the suit properties and the plaintiffs have no claim over the plots. He added that despite the judgment in Nakuru HC Petition No. 46 of 2013, the plaintiffs are illegally in possession of the suit properties yet they also have their new parcels of land. 12. Mr Githua produced copies of the following documents as exhibits: various receipts issued by the government, title in respect of plot No. 60, title in respect of plot No. 62, letter dated 3rd December 2012 from Godon Ogolla Advocates. 13. Under cross-examination and re-examination, Mr Githua stated that beneficiaries in Moi Ndabi Settlement Scheme Phases 2 and 3 were allocated 5 acres each and that the letters of offer to the 4 th to 60th defendants were not delivered to them on the days they are dated hence the late payments. He also stated conceded that some of the defendants have not received their title deeds due to the pendency of this case but was unable to give a precise number of those whose titles have not been issued. He added that if there was a genuine grievance concerning the relocation and issuance of titles to the 4th to 60th defendants, all the 224 persons affected by relocation would have joined this case but in this case only 85 are in court. 14. Next on the stand was Wacuka Minnie, the Sub-County Land Registrar, Naivasha, who testified as DW2. She produced certified copies of green cards in respect of Naivasha/Moi Ndabi/142 and Naivasha/Moi Ndabi/93. She stated that the registered proprietor of Naivasha/Moi Ndabi/142 is Francis Ngugi Githua who was issued with a title deed on 9 th February 2012 and that the registered proprietor of Naivasha/Moi Ndabi/93 is Rahab Waithera Njoroge who was issued with a title deed on 23 rd July 2011. She added that the 1st entry in respect of both parcels was the government of Kenya. 15. DW3 was James Wachira, the Sub-County Land Adjudication and Settlement Officer in charge of Naivasha and Gilgil. He produced a copy of a letter dated 7 th January 2010 from Ministry of Lands to the District Commissioner (DC) Naivasha and stated that the letter was written by his predecessor and that its subject matter was “Relocation of Flood Victims – Moi Ndabi Settlement Scheme”. He added that the letter asked the DC that the beneficiaries of phase 1 be relocated. That consequently, the group of 224 people were relocated from Phase 1 of the scheme to higher ground and that their former plots were reverted to Settlement Fund Trustees. According to him, none of the 224 persons has any claim to the land on phase 1 since their old allotment letters stood cancelled and they were compensated with equal portions of land on higher ground. He also produced a copy of a list of persons who were moved to higher ground pursuant to letter dated 7 th January 2010. The list bears their names, identity card numbers, their old and new plot numbers as well as the plot sizes. 16. DW3 further testified that after the land was reverted back to SFT, the District Plot Selection Committee which was chaired by DC Naivasha considered needy cases as regards portions that were not in the flooded areas, allocated the area that was not flooded and issued letters of offer in 2009.

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17. Under cross-examination and re-examination, DW3 stated that the plaintiffs were lawfully allocated 2.5 acres of land each in Moi Ndabi Settlement Scheme Phase I but the said allotments were later cancelled around 1997. By way of example, he pointed out that letter dated 8 th December 2010 found at page 272 of the plaintiffs’ bundle stated that the 1994 allocation letters and cards were cancelled. He added that the Director of Land Adjudication and Settlement has power to cancel allotment letters and that such cancellation is normally done after the District Settler Plot Selection Committee chaired by the DC forwards its recommendation to the director. 18. The 4th to 60th defendants’ case was then closed. 19. Parties filed and exchanged written submissions. I have considered the pleadings, evidence and the submissions. There is no dispute that the government of Kenya initially allocated the plaintiffs plot numbers 142, 55, 93, 155, 14, 60, 136, 138, 20, 144, 42, 94, 104, 15, 139, 9, 3, 168, 69, 7, 126, 171, 141, 41, 13, 101, 186, 90, 195, 82, 30, 16, 50, 79, 152, 49, 122, 146, 169, 24, 194, 10, 66, 91, 476, 200, 39, 74, 148, 140, 156, 173, 98, 77, 64,185, 72, 151, 33, 83, 12, 2, 63, 1, 32, 99, 86, 36, 197, 120, 166, 58, 178, 35, 127, 115, 61, 40, 88, 188, 78, 112, 76, 70, 28 within Moi Ndabi Settlement Scheme Phase I. It is further not contested that the government relocated the plaintiffs to new plots on higher ground following flooding that was caused by El nino rains of 1997 and that subsequently, the same government allocated land to the 4th to 60th defendants within the areas that were previously occupied by the plaintiffs in Moi Ndabi Settlement Scheme Phase I. The 4 th to 60th defendants have since been issued with title deeds in respect of the parcels allocated to them. It is for that reason that the plaintiffs in ELCC No. 338 of 2014 seek cancellation of the 4th to 60th defendants’ titles, vide prayer 6 of their plaint. 20. Although relocated and allocated new plots, the plaintiffs in ELCC No. 338 of 2014 have retained possession of their initial plots in Moi Ndabi Settlement Scheme Phase I despite the 4 th to 60th defendants having been issued with titles. The dispute between the parties is not new. They have litigated against each other in two consolidated petitions being Nakuru HC Petition No. 11 of 2013 and Nakuru HC Petition No. 46 of 2013. Judgment in the petitions was delivered on 19 th September 2014 by L N Waithaka J. It emerged at the hearing herein that no appeal has been preferred against the judgment. 21. Among the issues that the parties herein have placed before this court for determination are whether allocations to the plaintiffs in Moi Ndabi Settlement Scheme Phase I were lawfully cancelled, whether they were discriminated against by being allocated 2.5 acres as opposed to 5 acres and whether the 4th to 60th defendants were lawfully allocated land in Moi Ndabi Settlement Scheme Phase I. 22. Whereas the law is that once an allottee complies with the terms of an allotment and makes full payment as required in the allotment letter then the land is no longer available for allotment to a third party, the plaintiffs in ELCC No. 338 of 2014 have not produced any evidence of such compliance and payment. Therefore, in theory, their allotments could have been validly cancelled since there was as yet no binding agreements between them and the government. Further, in the unique circumstances of this case, the said plaintiffs requested relocation thereby justifying ensuing actions on the part of the government. So, were the allotments in favour of the plaintiffs in ELCC No. 338 of 2014 lawfully cancelled? The answer is in the affirmative. 23. Material on record includes a letter dated 7 th January 2010 from Ministry of Lands to the District Commissioner (DC) Naivasha whose subject matter was “Relocation of Flood Victims – Moi Ndabi Settlement Scheme”. It was produced by DW3 who was the Sub-County Land Adjudication and Settlement Officer in charge of Naivasha and Gilgil. The letter asked the DC that the beneficiaries of phase 1 be relocated. DW3 confirmed that following the letter, a group of 224 people were relocated from Phase 1 of the scheme to higher ground and that their former plots reverted to Settlement Fund Trustees. His evidence corroborates that of DW1 who testified that the said plaintiffs’ allocation documents in respect of the initial plots were cancelled by letters similar to a letter dated 8 th December 2010 from the District Commissioner Naivasha to the 1st plaintiff in ELCC No. 338 of 2014. A perusal of the said letter dated 8 th December 2010 reveals that it specifically advised the 1 st plaintiff in ELCC No. 338 of 2014 that he had been compensated through relocation to his current plot whose acreage is the same as that of the old one and that the allocation to him in 1994 stood cancelled. I am satisfied that the allotments in favour of the plaintiffs in ELCC No. 338 of 2014 were lawfully cancelled. That being the case, the said plaintiffs have no basis for claiming a declaration that they are entitled to retain possession and occupation of the parcels, or to seek removal of the 4 th – 60th defendants from the parcels or even to seek cancellation of the said defendants’ titles. Their suit fails. 24. As noted earlier, there is no dispute that the 4 th to 60th defendants have since been issued with title deeds in respect of the parcels allocated to them. Both the Sub-County Land Registrar Naivasha and the Sub-County Land Adjudication and Settlement Officer in charge of Naivasha and Gilgil confirmed as much in their testimonies. As registered proprietors of land, the 4 th to 60th defendants are by law entitled to the rights, privileges and benefits under Article 40 of the Constitution and Section 24 of the Land Registration Act. Further, Section 26 of the Land Registration Act obligates the court to accept the certificates of title of the 4 th to 60th defendants as conclusive evidence of proprietorship, unless of course the provisos under Section 26 (1) (a) or (b) are alleged and established. The said sections provide as follows: 24. Interest conferred by registration Subject to this Act— (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; …. 26. Certificate of title to be held as conclusive evidence of proprietorship (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

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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. … 25. The defendants in ELCC No. 334 of 2014 have not shown any valid reason why they should keep the registered proprietors from their land. They have failed to establish their claim seeking cancellation of the proprietors’ titles. In the circumstances I am satisfied that the plaintiffs in ELCC No. 334 of 2014 are entitled to the reliefs sought in the said matter. 26. In the end, I make the following orders: a) The plaintiffs’ case in ELCC No. 338 of 2014 is dismissed. b) A permanent injunction is issued restraining the defendants in ELCC No. 334 of 2014 from sub-dividing and/or further developing all that land comprised in Moi Ndabi Settlement Scheme Phase I. c) The defendants in ELCC No. 334 of 2014 to vacate from all that land comprised in Moi Ndabi Settlement Scheme Phase I within 45 (forty-five) days from the date of delivery of this judgment. d) In default of defendants in ELCC No. 334 of 2014 vacating as ordered in (c) above, the said defendants be evicted from Moi Ndabi Settlement Scheme Phase I. e) The defendants in ELCC No. 338 of 2014 and the plaintiffs in ELCC No. 334 of 2014 shall have costs of the said cases. Dated, signed and delivered at Nakuru this 25th day of February 2021. D. O. OHUNGO JUDGE In the presence of: Mr Karei for the plaintiffs Mr Opar holding brief for the 1st, 2nd and 3rd defendants Mr Opar for the 4th to 60th defendants Court Assistants: B. Jelimo & J. Lotkomoi

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