Wanandege Housing Cooperative Society Limited v Kenya Airports Authority & another (Environment & Land Case 1511 of 2014) [2022] KEELC 3096 (KLR)

way of a deed of assent, who later sold it to the plaintifi and transferred the same by a transfer dated 8th August 2012. 3. The Plaintifi contended that it obtained an Environmental Impact Assessment Licence from NEMA on January 13, 2014 and approvals from the Urban Planning & Housing Department on September 18, 2014 for construction of proposed domestic building and commenced construction work on about 23rd October 2014. 4. The Plaintifi also stated that by a letter dated November 3, 2014, the 1st Defendant demanded that it stops the ongoing construction works and remove all structures and materials on the property known as Land Reference No.9042/667 yet the Plaintifi’s property is known as Land Reference Number 9042/699. It stated that before it could reply to the 1st Defendant’s letter, the 1st Defendant illegally entered the suit property and demolished part of the ongoing construction valued at Kshs.3,508,235/ = as at 19th November 2014. It also stated that Jasir Contractors who were it contractors on site lost items valued at Kshs.3,839,720/=. 5. It is the Plaintifi’s case that the Defendant’s actions amount to trespass and destruction of the Plaintifi’s property in contravention to its rights over private property. The 1st Defendant’s case 6. The 1st Defendant filed the defence dated 11th February 2015.It denied all the allegations contained in the plaint and contended that it is the proprietor of the property known as Land Reference Number 9042/667 and that Land Reference Number 9042/699 is part and parcel of Land Reference Number 9042/667. It further contended that the same is public land that was set aside for the use of the 1st Defendant and it is not capable of being alienated to the Plaintifi or any other person. 7. The 2nd Defendant failed to enter appearance and/or file a defence. The Plaintifi ’s evidence 8. PW1, Ephantus Maina Kibaki, the Chief Executive Oficer of the Plaintifi, testified on 16th October 2019. His witness statement dated 6th February 2017 was adopted as part of his evidence in chief. He told the court that the Plaintifi acquired the suit plot located at Embakasi near the Embakasi police station in 2011 for purposes of constructing houses for its members. 9. He stated that the Plaintifi approached Zedekiah Anyonyi who was a son of Isaya Ingosi (the registered owner) who was then deceased. It was his testimony that the Plaintifi’s lawyers conducted due diligence and confirmed that the land belonged to Isaya Ingosi. 10. He stated that in August 2012, Zedekiah Anyoni Ingosi did a Deed of Assent as he was the representative of the estate of the deceased. He added that the Plaintifi then entered into a sale agreement with Zedekiah Ingosi, Kshs.4 million was paid on execution of the agreement and a further Kshs.6 million was paid later. He testified that Covenant Geo-Survey systems conducted a survey and established that the suit property existed. He added that Rubyland Limited conducted a valuation report and prepared the report dated 4th February 2012 11. It was his testimony that the Plaintifi commenced construction after obtaining approvals in 2014.He stated that the 1st Defendant claimed that it owned the property but the documents it had were of difierent parcel of land from the suit property. He testified that the late Isaya Ingosi used to pay rates for the suit property and that the Plaintifi has a title deed for the suit land. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 2

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12. When he was cross-examined, he stated that the valuers and surveyors confirmed that the property existed and that they did a search and confirmed that the property existed. When he was referred to the application for oficial search form dated 31st January 2012, he stated that it does not show results of the search. 13. When he was referred to the grant issued to Isaya Ingosi Manguya for 99 years with efiect from 1st August1998 and its accompanying deed plan dated 17th August 2001 and the 1st Defendant’s grant issued on 1st May 1998 accompanied by a deed plan dated 13th July 1998, he stated that the Plaintifi knew that the land was available from the survey report. When he was referred to the Plaintifi’s survey report dated January 2011, he stated that the purpose of the request for survey was to establish the beacons. He further stated that the beacons were not there and they were reinstated. 14. When he was re-examined, he stated that the Plaintifi conducted a search and that the valuer also conducted a search which established that Isaya Ingosi (deceased) was the registered owner. He stated that the letter of allotment issued to Isaya Ingosi (deceased) is dated 4th July 1998 for LR No.9042/699 while the 1st Defendant’s grant is issued with efiect from 1st May 1998 for L.R No.9042/667 thus they are difierent parcels of land. The 1st Defendant’s evidence 15. DW1 Rashid Abdullahi, a surveyor employed by the 1st Defendant testified on 28th October 2021 and on 9th February 2022. His witness statement dated 28th May 2015 was adopted as his evidence in chief. He stated that the entire L.R No.9042/699 falls within the 1st Defendant’s land as the Plaintifi’s deed plan is within LR 9042/667 belonging to the 1st Defendant reserved for its stafi houses. 16. When cross-examined, he stated that L.R No.9042/667 belongs to the 1st Defendant issued under deed plan No.21860 of 13th July 1998 and the title was issued on 23rd July 1999 while the Plaintifi’s title was issued on 21st May 2002. He stated I.R No.8873 (L.R Number 9042/699) is under deed plan No.237018 but they do not refer to two difierent plots as 699 is inside 667, the 1st Defendant’s parcel being the bigger one. 17. He stated that and that LR 9042/699 registered in the Plaintifi’s name borders L.R No.9042/18. He stated that as a land surveyor, parcel number 699 is an excision from 667 belonging to the 1st Defendant and that the excision to the 1st Defendant it was illegal. He stated that the first grant was surveyed and the beacons are there. When he was referred to LR NO 9042/669 measuring 0.100 hectares and signed in 2001, he stated that it is issued ten (10) years after the first grant. 18. When he was re-examined, he stated that both LR No. 9042/669 and LR No. 9042/ 667 border LR No.9042/18. When referred to the two (2) deed plans, he stated that they show that the Plaintifi’s land is inside L.R No.9042/667. 19. At the close of the oral testimonies parties tendered written submissions. The Plaintifi ’s submissions 20. They are dated 1st April 2022. Counsel for the Plaintifi raised on the following issues for determination: a. Whether the Plaintifi is the legally registered proprietor of the property known as Land Reference Number 9042/699? https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 3

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b. Whether the Defendant illegally and arbitrarily entered into and demolished part of the ongoing construction work, materials and structures on the suit property belonging to the Plaintifi. c. Whether the Plaintifi is entitled to general and special damages. d. Whether the Plaintifi is entitled to costs of the suit. 21. On whether the Plaintifi is the legally registered proprietor of the suit property, Counsel for the Plaintifi submitted that the Plaintifi established that the suit land was originally allotted to one Isaya Ingosi (deceased) whose son obtained it by assent and sold it to the Plaintifi. He argued that since there is no evidence that the 1st Defendant’s land was surveyed to give rise to Land Reference Number 9042/699, then there was no alienation of the 1st Defendant’s land known as LR No.9042/667. He relied on the case of Abdullahi Sheikh Ahmed v Mandera County Government [2020]e KLR. He further submitted that while the 1st Defendant contended that ownership of the suit property by the Plaintifi is void as it was acquired illegally, it did not set out any particulars of fraud or misrepresentation in its defence and did not dispute the records held by the lands ofice. 22. It was counsel’s submission that the 1st Defendant trespassed on its property in the meaning of Section 2(1) of the Trespass Act, Cap 294 and interfered with its ongoing construction thus contravening its constitutional right over private property declared under Article40, 60(1) (b) of the Constitution and Section 24 of the Land Registration Act. He further submitted that the 1st Defendant’s actions were contrary to Section 21 of the Land Registration Act. 23. On the issue whether the Plaintifi is entitled to general and special damages, he submitted that the Plaintifi has claimed a total of Kshs.7,347,955.49/= which includes value of work done and materials on the site. He relied on the case of Rhoda S Kiilu v Jianxi Water and Hydropower Construction Kenya Limited [2019]eKLR. He also submitted that the suit property was valued at ksh.10,400,000/= before the 1st Defendant trespassed and demolished part of the ongoing construction work, materials and structures thereon and that the construction project before demolition was valued at kshs.59,114,736/ = as per the valuation statement dated 29th November 2014. The 1st Defendant’s submissions 24. They are dated 23rd April 2022.Counsel for the 1st Defendant submitted that the 1st Defendant has authority to acquire land under Section12 (3) (g) of the Kenya Airports Act, Cap 395 Laws of Kenya. 25. He submitted that the Plaintifi and the 1st Defendant’s titles are subject to provisions of the Government Land Act, Cap 280 Laws of Kenya (now repealed). He further submitted that having established that L.R No.9042/669 is situate within L.R No.9042/667, the title held by the Plaintifi was obtained contrary to Section 12(3) (g) of the Kenya Airports Authority Act, Cap 395 and Section 2 of the Government Land Act. He added that the 1st Defendant is therefore the one who is entitled to quiet possession by virtue of Section 23(1) (a) & (b) of the Land Act No.6 of 2012. He relied on the case of Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna& Another [2013] eKLR. 26. It was also counsel’s submission that the Plaintifi does not qualify as an innocent purchaser for value as the vendor who sold the land to it had no authority to alienate the land. He relied on the case of Mwangi James Njehia v Janetta Wanjiku Mwangi & Another [2021] eKLR. 27. He put forward the case of Alice Chemutai Too v Nickson Kipkurui Korir & 2 other [2015] eKLR to submit that under Section 26 of the Land Registration Act, title can be impeached on grounds of having been acquired through misrepresentation or illegally or unprocedurally. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 4

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28. Counsel also relied on the case of Gitwany Investment Limited v Tajmal Limited and 3 others [2006] eKLR to submit that the title held by the 1st Defendant takes precedence over the suit property and urged the court to find that actions by the 1st Defendant to demolish the structures erected by the Plaintifi were legal. 29. On the Plaintifi’s prayer for special and general damages, he submitted that the Plaintifi failed to plead and prove special damages. He relied on the case of Hahn v Singh Civil Appeal No.42 of 1983 [1985] KLR 716.It was also his submission that since the Plaintifi has failed to prove trespass by virtue of the 1st Defendant being the bona fide owner of the suit property, any claim for damages whether general or special must fail. He relied on the case of Park Towers Ltd v John Mithamo Njika[2014] eKLR. 30. I have considered the pleadings and the evidence on record. I have also considered the written submissions and the authorities cited. The issues for determination are:a. Whether the suit parcel LR NO 9042/699 is excised from L.R No.9042/667. b. Whether the excision, if any, was regular. c. Is the Plaintifi entitled to the reliefs sought? d. Who should bear costs of this suit? 31. The Plaintifi’s grant is I.R 88731 for L.R No 9042/699 issued with efiect from 1st August 1998 measuring 0.1004 of a hectare, and it was signed on 28th December 2001 while the 1st Defendant’s grant is L.R 77020 for LR No.9042/667 issued with efiect from 1st May 1998, measuring 15.24 hectares and it is signed on 23rd July 1998. It has been established by evidence that the Plaintifi’s parcel is a portion of the Defendant’s land. 32. It was the Plaintifi’s testimony that LR No 9042/699 was originally allotted to Isaya Ingosi Manguya vide the letter of allotment dated 24th July 1998. On the other hand, by 1st May 1988, L.R NO.9042/667 had been alienated and allotted to the 1st Defendant. It would therefore be impossible for the commissioner of lands to issue the grant I.R 88731 for L.R No 9042/699 which is contained in L.R 77020 LR No.9042/667 since that portion had been alienated already and allotted to the 1st Defendant. Had the portion been un-alienated, then it would have been available for allocation to another person by the commissioner of lands. 33. Section 2 of the Government Land Act, Cap 280 Laws of Kenya (now repealed), defines un-alienated land as; “Un-alienated Government land” means Government land which is not for the time being leased to any other person, or in respect of which the Commissioner has not issued any letter of allotment.” 34. Condition No.6 of the Grant issued to the 1st Defendant states, “the grantee shall not subdivide the land without the prior consent in writing of the commissioner.” The only way L.R No.9042/699 would be hived from the 1st Defendant’s land being L.R NO.9042/667 is if the 1st Defendant did it with the consent of the commissioner of lands. 35. The Plaintifi’s claim he is the registered owner of LR NO 9042/699. It is its case that they bought from Zedekiah Anyonyi Ingosi who is the Administrator of the Estate of Isaya Ingosi Manguya. The said deceased’s Title is I.R No 88731 for 99 years with efiect from 1st August 1998. The same measures 0.1004 hectares. The Deed Plans attached is No 237018 dated 17th August 2001. The Assent to Zedekiah Anyonyi Egosi was registered on 3rd September 2012. On the same date it was transferred to the Plaintifi. https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 5

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36. On the other hand, the title held by the 1st Defendant is LR NO 9042/667 (IR NO 77020). The same is from 1st March 1998. The approximate area is 15.42 hectares. The Deed Plans attached is No 218610 signed on 13th July 1998. The title was issued on 23rd July 1999. DW1 Rashid Abdullahi testified in court and took the court through the deed plans produced by the Plaintifi and the Defendant. He told the court that LR NO 9042/699 claimed by the Plaintifi is inside the 1st Defendant LR NO 9042/667. 37. The 1st Defendant’s title is for a lease of 99 years from 1st May 1998 whereas the Plaintifi’s is from 1st August 1998. It is not in dispute that both titles were subject to provisions of the Government Land Act (Cap 280 Laws of Kenya) Repealed. 38. DW1’s evidence that the Plaintifi purported LR NO 9042/699 is inside LR NO 9042/667 was not challenged. The Plaintifi’s claim that theirs is a difierent parcel cannot hold water as it was illegally excised from the 1st Defendant’s parcel. This was done contrary to Section 12(3) (g) of the KAA Act (Cap 395 Laws of Kenya) which provides that:“ Without prejudice to the generality of subsections (1) and (2), the Authority shall have power toSell, let or otherwise dispose of any property, movable or immovable, which is in the opinion of the Board is not necessary for the purpose of the Authority: Provided that the Authority shall not sell, let or otherwise dispose of any building or land vested in it by virtue of section 4 except with the consent of and subject to any conditions imposed by the Government”. 39. It is the Plaintifi’s claim that it did due diligence before buying the suit property from Zedekiah Ingosi. In the case of Elijah Makeri Nyangw’ara vs Stephen Mungai Njuguna & Another [2013] eKLR, the court held that:“ The title in hands of an innocent third party can be impugned if it is proved that the title was obtained illegally, unprocedurally or through a corrupt scheme. Hon Justice Munyao Sila in the case while considering the application of Section 26(1)(a) and (b) of the Land Registration Act rendered himself as follows:“the law is extremely protective of title and provides only two instances for challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired through a corrupt scheme”. 40. I also find that the Plaintifi cannot be treated as a bonafide purchaser for value without notice as the person who sold it the land had no good title to pass on to the Plaintifi. I am guided by the case of Katende vs Haridan & Co. Ltd [2008] 2 EA 173. Had the Plaintifi done due diligence it would have realized that they were buying part of the 1st Defendant’s land. I find that the excision of LR NO 9042/699 from LR No 9042/667 was irregular. 41. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 6

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encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (2) 42. 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. 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.” I agree with the 1st Defendant submissions that the 1st Defendant’s title was the first one to be issued. The Plaintifi’s came later. In the case of Gitwany Investment Ltd vs Tajmal Ltd & 3 Others [2006] eKLR Lenaola J observed thus:“ My understanding is therefore that the title given to Gitwany in the first instance and which I have held to be absolute and indefeasible as regards the suit land is the earlier grant and in the words of the Court of Appeal in Wreck Enterprises vs Commissioner of Lands, C.A No 71/1997 (unreported):- is the “grant [that] takes priority. The land is alienated already”……..Like equity keeps teaching us, the first in time prevails so that in the event such as this one where, by a mistake that is admitted, the Commissioner of Lands issues two titles in respect of the same parcel of land, then if both are apparently and on the face of them, issued regularly and procedurally without fraud save for the mistake, then the first in time must prevail. It must prevail because without cancellation of the original title, it retains its sanctity.” 43. I agree with the 1st Defendant’s submissions that the 1st Defendant’s title takes precedence over the suit property and that the actions to demolish the structures by the Plaintifi were lawful. The Plaintifi is therefore not entitled to the reliefs sought specifically, general and special damages. 44. Special damages must not only be pleaded but must be proved. I find that the Plaintifi has failed to prove that it is entitled to any special damages. 45. Having failed to prove that the 1st Defendant’s action of demolishing the structures amounted to trespass. As stated earlier in the Judgment, the parcel belongs to the 1st Defendant. The prayer for general damages for trespass must fail. 46. It is on record that the 1st Defendant issued a Letter of Demand dated 3rd November 2014 to the Plaintifi cease construction. 47. The upshot of the matter is that I find that the Plaintifi has failed to prove its case as against the Defendants on a balance of probabilities. The Plaintifi’s suit is hereby dismissed with costs to the 1st Defendant. It is so ordered. DATED, SIGNED AND DELIVERED NAIROBI THIS 30TH DAY OF JUNE 2022. ............................. L. KOMINGOI https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 7

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JUDGE In the presence of:Ms Muturi advocate for the Plaintifi Ms Anyango for Mr. Kipkorir advocate for the 1st Defendant No appearance for the 2nd Defendant Steve - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3096/eng@2022-06-30 8

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