keelc-2023-16288

i) Any other relief the Honourable Court may deem just to grant. Plainti ’s Case 2. In his plaint, the Plainti pleads that in or about the year 2008, he expressed interest to purchase plot. no A08 at Komarock II Shopping Centre “A” (the suit property) and which plot had been allocated by the Defendant to one Esther Nyambura Mutua trading as North Chem who then sold the same to Winifred Njeri Karanja who now proposed to sell the same to the Plainti. 3. The Plainti avers that the said plot no A08 did not have a Title and the ownership records according to Winifred Njeri Karanja, were held and available at the oces of the Housing Development Department in Dandora, which is a department of the Defendant. 4. The Plainti contends that he obtained copies of the letter of allotment reference number HDD/1992/64.PA/CAM/LS and other documents from the allotee and proceeded to the Defendant's Housing Development Department oces to carry out a search. 5. The Plainti found that indeed plot no A08 Komarock shopping centre “A” was owned by Winifred Njeri Karanja and all dues were fully paid and an acknowledgement of full payment issued by the Defendant on 11/08/2005 in the name of the North Chem c/o Winifred Njeri Karanja. 6. The Plainti contends that he further found in the Defendants records a beacon Certicate showing the location and size of the said plot Number A08 issued by the City Planning Department to North Chem on 4/12/1998 and payment receipts issued by the Defendant in the name of North Chem constituting full payment of the plot dues up to 2008. 7. The Plainti being satised that plot no A08 Komarock II Shopping Centre was duly allocated to Esther Nyambura Mutua trading as North Chem who then sold the same to Winfred Njeri Karanja and that the Defendant had accepted and acknowledged full payment of the plot dues, the Plainti entered into a sale agreement with Winifred Njeri Karanja and bought the plot at a Consideration of ksh 1,100,000/= which sum he paid in full on 31/12/2008. 8. That pursuant to the purchase of the plot, the Plainti in readiness for development of a commercial building on the plot, the Plainti proceeded to commission an architect to prepare architectural plans at a cost of ksh 40,000/= and then proceeded to the Defendant's Housing Development Department oces where he was asked to pay ksh 30,000- and the building plans were duly approved in accordance with approved type plans on 29/10/2009. 9. The Plainti depones that he was further advised by ocers of the Defendant's Housing Development Department that for the purchase and transfer of the plot from Winifred Njeri Karanja to Himself to be recognised by the Defendant, it was necessary for the same to be tabled before the relevant committee for approval and the same was approved vide Minute 6 of the Housing Development committee meeting held on the 2/02/2010 and subsequently ratied by the Defendants's ordinary meeting. 10. The Plainti having fullled all requirements to enable him develop the plot, he took the contractor to site and was shocked to nd some people had taken possession of his plot and they produced documents purportedly issued by the Defendant as ownership documents for portions of the Plaintis plot. 11. The Plainti obtained copies of allotement letters, a sublease and receipts which showed that in complete disregard of the Plaintis ownership rights, the Defendant had subdivided the same plot and allocated the same to several other persons thus depriving the Plainti his right to own and develop https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 2

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and use the plot despite the Defendant having received all the plot dues, approved the transfer of the plot to the Plainti and even approved development plans. 12. The Plainti has made several attempts to get an explanation from the Defendant on the serious infringement of his rights to the plot but all the written enquiries have not been responded to. 13. The Plainti avers that the Defendant has a statutory and duciary duty to hold in trust and protect the Plainti's right interest and Title to the plot pending processing of the sublease but the Defendant has in breach of the said duty allocated the plot to several other persons thus depriving the Plainti his interest and right and title to the plot. 14. The Plainti listed the particulars of the Defendant's breach of duty as follows; Subdividing the Plaintis plot and issuing allotment letters to other persons, Receiving payments in respect of the plot from other persons and at the same time from the Plainti, Issuing parallel or other ownership documents in respect of the plot to other persons other than the Plainti, Continuing to grant approvals to the Plainti while having the knowledge or while it ought to have knowledge that other persons have been issued with documents of ownership of the plot and Failing to ensure that the Plainti enjoys the benets of ownership, possession and development of the plot. 15. Pursuant to the Defendants illegal actions, the Plainti has incurred serious nancial hardships, loss and damage and great mental anguish for which he is entitled to compensation. 16. The Plainti avers that the Defendant has aggravated the Plainti's suering and loss by failing to respond to the Plainti's written complaints yet the defendant has a duty to respond to and resolve the Plainti's genuine complaint as required by Law. 17. The Plainti states that he has already spent over ksh 1,735,200/= made up as follows: a. Purchasing the plot – ksh 1,100,000.00 b. Commission agency fees – ksh 100,000.00 c. Rates and ground rent for 2009 – ksh 5,200.00 d. Legal and transfer fees – ksh 10,000.00 e. Building plan fee – ksh 40,000.00 f. Building plan approval – ksh 30,000.00 g. Providing security – ksh 20,000.00 h. Materials and labour – ksh 30,000.00 i. Interest on loan – ksh 400,000.00 18. That the Plainti shall claim the said sum of ksh 1,735,200/= as special damages and interest on the same. 19. The Plainti avers that the current and market value of the plot is over ksh 3,000,000/= and that he is entitled to compensation at the current market rates, general and aggravated damages for unlawful deprivation of property, mental anguish interest and costs. 20. The Plaintis eorts to pay the ground rent and rates for the year 2010 has been frustrated by the sudden disappearance of the property le at the Defendant’s Housing Development Department oces and the Plainti is apprehensive that the Defendant may use non payment of the said ground rent and rates as an excuse to justify repossession of the Plainti’s plot. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 3

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21. Despite written complaints and demands and notice of intention to sue being served on the Defendant, the Defendant has neglected, failed and/or refused to respond and/or resolve the matter and/or give the Plainti vacant possession of the plot hence necessitating the ling of this suit. Defendant’s Case: 22. The Defendant entered appearance on 19/10/2010 and led a statement of defence dated 29/10/2010. 23. In its defence, the Defendant denies the contents of the Plaint dated 8/09/2010. 24. The Defendant avers that without prejudice, the defendant avers that if it allocated the plot to the plainti as purported (which is denied) then it was the plaintis duty to safeguard his own private prpperty and the particulars of breach of duty in paragraph (a) to(e) are denied. 25. The defendant also denies the particulars of special damages. Plainti ’s Evidence: 26. The Plainti only called one witness. pw1 – James Juma Kimuyu conrmed that he is the Plainti in this suit. He adopted his witness statement dated 4/03/2015 as his evidence in chief. He produced three bundles of documents. The rst is dated 27/02/2015 nos 1-21 which was marked as pw1exh1-21, the second one is dated 25/04/2017 which contains the minutes of the defendant which was marked as pw1exh22 and there is a supplementary list dated 5/05/2017 which has the approved plan for construction of the plot, the same is marked pw1exh23. It was pw1’s testimony that he is asking the court to grant the prayers in the Plaint dated 8/09/2010 based on the documents. 27. After hearing the testimony of this witness, the Plainti’s case was closed. Defendant’s Evidence: 28. The Defendant did not appear to defend its case despite service. This is evidenced by the Plainti’s return of service dated 28/10/2022. In fact, the last time the Defendant appeared this Court in this matter was on 31/01/2022. Submissions:29. At the close of hearing on 31/10/2022, the Court gave directions on ling of written submissions. The Plainti submitted and I have considered the same. The Plainti’s submissions are dated 18/11/2022 and led on the even date. The Defendant did not le any written submissions. Analysis And Determination: 30. Having carefully read and considered the pleadings, the Plainti’s submissions and the evidence adduced by the Plainti, the Court nds the issues for determination are as follows. i. Whether the Plainti is the benecial owner of the suit property? ii. Whether the Plainti is entitled to the orders sought. iii. Who should bear the costs of this suit? Whether the Plainti is the benecial owner of the suit property. 31. The main issue between the antagonists herein is the sort that consistently emerges in cases involving unregistered land. It concerns proof of ownership. Unlike in the case of registered land where the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 4

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register easily and on a prima facie basis reveals the owner, the burden and task is always heavier for the court to carry when the court has to trace the true owner of the unregistered parcel of land. The parties are never co-proprietors and neither do they so will. The court has to perform the rather delicate task of sorting out a muddle which has potentially long-term serious consequences as only one party is to be determined as having the better title. It was the burden of the plainti to prove on a balance of probabilities that he owned the suit property. 32. In determining the above issue, it would perhaps be appropriate to rst state that tracing ownership of unregistered land is dependent on tracing the root of title. Unlike registered land where ownership is domiciled and founded in the register of titles, ownership of unregistered land and the ascertainment or conrmation thereof involves the intricate journey of wading through documentary history. 33. The simple reason is that unregistered titles exist only in the form of chains of documentary records. The court has to perform the delicate task of ascertaining that the documents availed by the parties are not only genuine but also lead to a good root of title minus any break in the chain. It is the delivery of deeds or documents which assist in proving not only dominion of unregistered land but also ownership. The deeds must establish an unbroken chain that leads to a good root of title or title paramount. A good compilation of the documents or deeds relating to the property and concerning the claimant as well as any previous owners leading to the title paramount certainly proves ownership. It is such documents which are basically ‘the essential indicia of title to unregistered land’’: per Nourse LJ in Sen v Headley [1991] Ch 425 at 437. 34. The documents in my view are limitless. It could be one, they could be several. They must however establish the claimant’s benecial interest in the property. Examples of the deed or documents include, at least in the Kenyan context: sale agreements, Plot cards, Lease agreements, allotment letters, payment receipts for outgoings, conrmations by the title paramount, notices, et al. 35. The instant case is no exception. It is for the Court to interrogate the evidence, especially documentary evidence and ascertain who between the two antagonists that is to say the Plainti on the one hand and the Defendant on the other hand, is the true owner of the suit plot. For the court to conduct this rather wearisome and intricate task, it is proper that the documents unless otherwise agreed are produced in their original form or format. 36. To begin with, I note that the Defendant failed to come to court and defend its suit on 31/10/2022 when the suit was set down for hearing. The Defendant only led a statement of defence in this suit. Odunga J. in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR, stated as follows on the consequences of failure by a party to call evidence: “ What are the consequences of a party failing to adduce evidence? In the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC no 834 of 2002 Justice Lesiit, citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC no 548 of 1998 stated: “Although the Defendant has denied liability in an amended Defence and Counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st Plainti’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 5

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37. Again, the learned Judge in the case of Trust Bank Ltd & 2 others v Paramount Universal Bank Ltd & 2 Others Nairobi (Milimani) HCCS no 1243 of 2001 stated that:“ It is trite law that where a party fails to call evidence in support of its case, that party's pleadings remain mere statements of facts since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plainti against them is uncontroverted and therefore unchallenged.” 38. There is no reason to belabour the point here. Where a party fails to adduce evidence and has had opportunity to test and verify the same through cross examination, the court may properly rely on the evidence adduced subject to the usual rules as to relevance and probative value. 39. Furthermore, the fact that the suit has not been defended means that the Plaintis’ evidence remained unchallenged and uncontroverted. However, the Court will not just enter Judgment without interrogating the veracity of the evidence placed before it as the Plaintis are still required to prove their case on the required standard of balance of probabilities. See the cases of Shaneebal Limited v County Government of Machakos [2018] eKLR and Karuru Munyororo v Joseph Ndumia Murage & another, Nyeri HCCC no 95 of 1988. 40. Proof of ownership of land is found in documentary evidence which lead to the root of title. There must be shown an unbroken chain of documents showing the true owner. Once proof of ownership is tendered then the holder of the documents is entitled to the protection of the law. There is no doubt that such proof will be on a balance of probabilities, but the court must be left in no doubt that the holder of the documents proved is the one entitled to the property. 41. The Plainti testied that the suit property does not have a certicate of title. On the substance of the case, it was Plainti’s case that he purchased the suit property from one Winifred Njeri Karanja vide Sale Agreement dated 31/12/2008 for a consideration of ksh 1,100,000.00 in which the vendor acknowledged receipt of the said payment as at the time the said agreement was being executed. He explains that the suit property/plot had initially been allocated by the Defendant to one Esther Nyambura Mutua trading as North Chem who then sold the same to Winifred Njeri Karanja. It contends that he obtained copies of the ownership records and proceeded to the Defendant’s Housing Development Department oces to carry out a search and later found that indeed the plot no A08 was registered under Winifred Karanja and that all the dues were fully paid and an acknowledgment of same was issued by the Defendant on 11/08/2005. 42. The Plainti contends that he further found in the Defendants records a beacon Certicate showing the location and size of the said plot Number A08 issued by the City planning Department to North Chem on 4/12/1998 and payment receipts issued by the Defendant in the name of North Chem constituting full payment of the plot dues up to 2008. That pursuant to the purchase of the plot, the Plainti in readiness for development of a commercial building on the plot, the Plainti proceeded to commission an architect to prepare architectural plans at a cost of ksh 40,000/= and then proceeded to the Defendant's Housing Development Department oces where he was asked to pay ksh 30,000.00 and the building plans were duly approved in accordance with approved type plans on 29/10/2009. Lastly, the Plainti avers that when he fullled all requirements to enable him to develop the plot, he took the contractor to site and was shocked to nd some people had taken possession of his plot and they produced documents purportedly issued by the Defendant as ownership documents for portions of the Plaintis plot. 43. The documents relied on by the Plainti include cheque no 03-001 dated 31/12/2008 for ksh 1,000,000.00, sale agreement dated 31/12/2008 between Winifred Karanja and the Plainti, power https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 6

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of attorney dated 27/11/2007, letter dated 11/08/2005 conrming payment clearance on the suit plot as at 31/12/2005, sale agreement dated 30/11/1998 between Esther Nyambura Mutua and Winifred Karanja for the sale of the suit property, adavit of Esther Mutua t/a North Chem sworn on 1/12/1998 conrming that she is the same person trading as North Chem and that she sold the suit property to Winifred Karanja, beacon certicate dated 4/12/1998 for North Chem in favor of the suit plot, power of attorney dated 30/11/1998, letter of allotment dated 18/01/1994 to North Chem, various receipts issued by Nairobi City Council conrming payments made by North Chem from page 29-35, approved development plan dated 29/10/2009and minutes of the Defendant held on 2/02/2010. 44. The Court, in the case of Rukaya Ali Mohamed v David Gikonyo Nambacha & another (Kisumu HCCA no 9 of 2009, held that:“ Once (an) allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment, since a letter of allotment confers (an) absolute right of ownership or proprietorship unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation, or that the allotment was out rightly illegal, or it was against the public interest.” 45. I am also guided by the case of Republic v City Council of Nairobi & 3 Others [2014] eKLR, where the Court held that: “ once allotment letter is issued and the allottee meets the conditions therein, the land in question is no longer available for allotment since a letter of allotment confers absolute right of ownership unless it is challenged by the allotting authority or is acquired through fraud, mistake or misrepresentation or that the allotment was out rightly illegal or it was against public interest. In other words, where land has been allocated, the same land cannot be reallocated unless the rst allocation is validly and lawfully cancelled.” 46. In other words, where land has been allocated, the same land cannot be reallocated unless the rst allocation is validly and lawfully cancelled. There was no evidence availed by the Defendant to prove that the Plainti acquired the suit land illegally. However, the Plainti has proved on the required standard what it had alleged – that the suit property belongs to him. 47. In this instant the plainti has been able to prove that the initial allottee was allotted the suit property and that she further met the conditions. The minutes of the Defendant held on 2/02/2010 also demonstrate the history of allotment of Plot no A08. There is no evidence adduced that allotment was ever cancelled and it is not in doubt that only the allotting authority can cancel the allocation. The above coupled with the fact that the defendant only led a defence that was a general denial of the allegations made in the Plaint and further, the Defendant did not adduce any evidence and failed to appear in Court during hearing, the Court nds and holds that the plainti has satisfactorily proved his root of title and therefore he is the absolute and indefeasible owner of the suit property. 48. All the evidence point towards the plainti being the owner of the suit property. The plainti has tendered evidence that shows an unbroken chain of the root of title. The plainti’s evidence was not rebutted as the defendant led a defence that was a general denial of the Plainti's contentions in the Plaint, they did not le any witness statement and therefore they did not produce any evidence in court. The plainti’s evidence remains uncontroverted. 49. Ultimately, this Court nds and holds that the Plainti stands in better stead. He has provided sucient evidence to prove ownership. I am inclined to nd that the Plainti has discharged the https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 7

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burden of proving his case on a balance of probabilities as required in law. My nal word in this regard is that the Plainti is the benecial owner of Plot no A08 Komarock II Shopping Centre “A”, for the reasons I have attempted to articulate above. I shall therefore grant prayer (a) of the Plaint dated 8/09/2010. Whether the Plainti is entitled to the orders sought 50. Having found that the Plainti is the benecial owner of Plot no A08 Komarock II Shopping Centre “A”, I shall now focus on the prayers sought in the Plaint. 51. Prayer (a) relates to a declaration that the Plainti is the benecial owner of Plot no A08. I have already eectively granted this prayers and I see no reason to return to it. Regarding (b) and (c), since I have already held that the Plainti is the benecial owner of the suit property, he is therefore entitled to vacant possession of the suit property, it follows that no party save for the Plainti should have any right to enter therein. The minutes of the Defendant of meeting held on 2/02/2010 demonstrated that the Plot was allotted to one Ruth Asulunda who then transferred the plot to one Michael Sebastian. This can be seen at page 1004 of the minutes. The minutes are marked as pw1exh.22. The Defendant has the mandate to revoke all other allotments in respect to Plot no A08. As such, these prayers are meritorious. Further since I have granted the said prayers, I see no need to grant prayer (d) in the alternative. 52. Prayer (e) relates to judgment to be entered against the Defendant for ksh 1,735,200.00. The Plainti pleaded that the said amount is special damages. I however note that a prayer for special damages has not been sought for in the Plaint. Special damages must be specically pleaded and proved. The Plainti did not lead sucient evidence to show what he had spent or to prove the actual value of the loss suered. The Plainti claimed to have spent ksh 1,735,200.00. The Plainti listed how much he spent on various things regarding the purchase of the suit plot. He only adduced a cheque for ksh 1 million being payment of the suit property, an approved development plan, pw1exh. 23, which showed that he actually paid ksh 30,000.00 for the approval and a receipt no 100872/100672 (the same was not clear) dated 26/07/2009 demonstrating that ksh 5,200.00 was paid in 2009 as claimed. I opine that the same do not constitute proof of special damages. At length, I nd that the claim for special damages was not strictly pleaded and proved as required by the law: see Ouma v Nairobi City Council [1976] KLR 297, Kenya Bus Services v Mayenda [1991]2 KAR 242 and the recent Court of Appeal decision of Paul N.Njoroge v Abdul Sabuni Sabonyo [2015]eKLR. 53. With regard to prayer (f) regarding general damages for loss of use, I note that the Plainti alleged that he had fullled all requirements to enable him to develop the plot as it is a commercial plot. I have also noted that the development approval was only valid for 24 months and the same has since lapsed. The Plainti also alleges that he has incurred serious nancial hardships, loss and damage and great mental anguish for which he is entitled to compensation. Once again, the only evidence I can rely on is a cheque for ksh 1 million being payment of the suit property, an approved development plan, pw1exh. 23, which showed that the Plainti actually paid ksh 30,000.00 for the approval and a receipt no 100872/100672 (the same was not clear) dated 26/07/2009 demonstrating that ksh 5,200.00 was paid in 2009 as claimed. However, it is clear that the Plainti is the benecial owner of the suit property. He alleges that the Defendant had subdivided the plot and allocated the same to several other persons thus depriving the Plainti his right to own and develop and use of the plot. It is this loss of use and all the incidental rights that have been infringed by the defendants that the plainti now seeks compensation for. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 8

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54. In the case of Duncan Nderitu Ndegwa v KP& LC Limited & another [2013] eKLR where P. Nyamweya J. held that: “ …once a trespass to land is established it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. This court accordingly awards an amount of ksh 100,000/= as compensation of the infringement of the Plainti’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass” 55. 56. In Halsbury Laws of England 4th Edition, Vol 45 at para 26, 1503, it is provided as follows: a. If the Plainti proves the trespass he is entitled to recover nominal damages, even if he has not suered any actual loss. b. If the trespass has caused the Plainti actual damage, he is entitled to receive such amount as will compensate him for his loss. c. Where the Defendant has made use of the Plainti’s land, the Plainti is entitled to receive by way of damages such sum as would reasonably be paid for that use. d. – e. – Insofar as the Plainti failed to adduce sucient evidence on the loss, he had incurred due to the Defendant’s acts on suit lands but in, associating myself with the decision cited above, I nd that the Plainti indeed suered damages as a result of the Defendant’s acts for those years. I will proceed and award them ksh 500,000 as general damages for loss of use. Who should bear the Costs of this Suit? 57. It is trite law that Costs follow the event. Section 27 of the Civil Procedure Act gives the Court discretion to grant costs. As the successful party is always entitled to costs except in exceptional circumstances, no exceptional circumstance exists in this suit and thus the Court nds that the Plainti being the successful litigant is entitled to the costs of the suit. Disposal Orders 58. Having carefully read and considered the Pleadings by the parties herein, the evidence adduced, the written submission and the provisions of law, the Court nds and holds that the Plainti has proved his claim against the Defendant herein on the required standard of balance of probabilities. For the above reasons, the Court nds that the Plainti’s claim as contained in the Plaint dated 8/09/2010 is merited. 59. Accordingly, I therefore nd that the Plainti has proved his case. I enter judgment for the plainti against the defendant as follows;a) A declaration that the Plainti is the benecial owner of plot no A08 Komarock II shopping centre “A” be and is hereby issued. b) An order that the Defendant revokes all other allotments in respect of Plot no A08 Komarock II shopping centre “A” be and is hereby issued. c) An order that the Defendant removes all other persons occupying the Plainti’s plot and puts the Plainti into possession be and is hereby issued. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 9

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d) That the Defendant do pay to the plainti ksh 500,000.00 (Kenya Shillings Five Hundred Thousand Only) as general damages for loss of use of Plot no A08- Komarock II shopping Centre “A”. e) The Defendant to bear the costs of the suit. f) I award interest on (d) above at Court’s rates but the same is to be computed after sixty (60) days from the date of delivery of this Judgment until payment in full. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 21st DAY OF FEBRUARY 2023 .................................... MOGENI J JUDGE In the virtual Presence of: Mr Kinyua for the Plainti No appearance for the Defendant Ms. Caroline Sagina : Court Assistant. ........................................... MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16288/eng@2023-02-21 10

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