Reriani

possession of the parcel of land known as Land Reference Number 11344/1598 (I.R No. 139430) Mowlem section, Dandora Estate, Nairobi County. ii. Permanent mandatory injunction directed to the Defendants their servants or agents to forthwith vacate and demolish any and all developments constructed on the parcel of land known as Land Reference Number 11344/1598 (I.R No.139430) Mowlem section, Dandora Estate, Nairobi County. iii. A declaration that any allotment /ownership document issued to the defendants if any are illegal and void. iv. Costs of this suit with interest thereon. v. Such other or further relief as this Honourable Court may deem just and t so to grant. 2. The suit was contested by the 1st, 2nd and 4th Defendants who led a statement of defence dated 5th September 2018. 3. The Interested Party supported the Plainti’s suit having been joined to this suit by virtue of being the holder of subsisting registered charge over the suit property. The Plainti ’s Case. 4. The suit was initially led by James Reriani Gachagua who unfortunately passed away before its conclusion and was substituted by Francisca Wambui Reriani. It was the Plainti’s case that at all material times, the Plainti was vide a 99-year term lease the registered owner and proprietor of all that parcel of land known as land Reference Number 11344/1598 (I.R. No. 139430) Mowlem Section, Dandora Estate, Nairobi County hereinafter referred to as the suit property. 5. It was averred that or about the 27th March, 2017, the Plainti while on an inspection of the abovementioned suit property, discovered that the 4th Defendant, in collaboration with the 5th and 6th Defendants had without any lawful justication or colour of right encroached and trespassed on the suit property and commenced to construct police post therein ostensibly to be used by ocers from the 2nd and 3rd Defendants. 6. It was also averred that the Plainti purchased the suit property from Umitag investments who were the original allotee from the defunct City Commission on or about August 1996, he was issued with an allotment letter Ref No. CP &ARCH/001066 and he has been paying all the land Rates /rent to the Nairobi City Council and to its successor the County Government of Nairobi. 7. The said parcel of land is vide a charge dated 21st July 2016 and registered on 28th July 2016 currently charged to Equity Bank (the interested party) as security for loan advanced to the Plainti. 8. At the hearing herein, James Reriani Gachagua testied as PW 1 and the sole Plainti witness. He relied on his witness statement dated 5th April, 2017 as his evidence in chief. He also produced the following documents in support of his case during his evidence in chief: a. Letter of allotment P.Exhibit 1 b. Agreement for Sale: P.Exhibit 2 c. Letter of allotment from Nairobi City Commission – P.Exhibit 3. d. Letter Conrming plot ownership – P.Exhibit 4 e. Receipts for payment of rates – P.Exhibit 5 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 2

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f. Copy of the lease P.Exhibit 6 g. Deed of rectication P.Exhibit 7 h. Charge from Equity Bank P.Exhibit 8 i. Photographs P.Exhibit 9 j. Valuation report P.Exhibit 10 9. He also added that despite the defendants trespassing on his land, they have not shown him any documentation demonstrating their interest in respect to the said parcel. 10. During cross-examination by Counsel for the 1st, 2nd and 3rd Defendants, he stated that he was allocated the land by the then Nairobi City Commission though he could not remember when he accepted the oer. He also stated that he has been paying the outstanding rates as and when they fall due. He also stated that he was stopped from using the property by the police in 2017 and that he had gotten the title of the property earlier in the year 2012. 11. When re-examined, he stated that he paid a premium of Kshs 80,000.00 upon being allocated the property. The Defendant’s Case: 12. Upon being served with the Plaint and summons to enter appearance, only the 1st, 2nd and 3rd defendants led a statement of defence dated 5th September 2018. No pleadings were led by the 4th, 5th and 6th Defendants. None of the said defendants called witnesses to testify on their behalf during trial. The Case of the Interested Party 13. Mary Katoni Mbithi, the Credit Manager of the Interested Party testied on their behalf. She relied on her witness statement dated 4th October, 2019 and stated that she was aware that on 22nd June, 2016, the Plainti approached the Interested Party herein, with a view to acquire a loan facility payable to Merge Enterprises Limited for the sum of Kshs 13,000,000/-. This was to be secured by registration of a legal charge facility over all that parcel of land known as LR No. 11344/1598, the suit property herein, registered in the name of the Plainti. 14. Prior to the registration of the charge and disbursement of the funds, the Interested Party carried out a search at the Lands Registry and conrmed that the Plainti was the registered owner of the suit property. Having satised itself of this, the Interested Party on 28th July 2016, proceeded to register a legal charge over the suit property as security for disbursement of the sum of Kshs 13,000,000/- to Marge Enterprises Limited. The sum of Kshs. 12,585,360.68 is still owing from the Plainti under the said charge. 15. She also added that she was aware that some people were illegally undertaking some construction works on the suit property which was later designed as a police post. 16. She also produced the following documents in support of the Interested Party’s Case; Copy of Certicate of lease, Valuation report dated 8th July, 2016 and the Plainti’s loan account statement. 17. When cross examined, she stated that the bank did due diligence before charging the property which conrmed that the Plainti was the owner of the property and subsequently thereafter disbursing funds to the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 3

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The Plainti ’s Submissions 18. Following the close of the parties’ respective cases, the court directed the parties to le and exchange written submissions for consideration. The Plainti’s written submissions were led by Mwangi Wambugi & Co. Advocates dated 23rd August, 2023. 19. In the Plainti’s written submissions, counsel identied three issues for determination which were outlined as follows: 20. i. Whether the Plainti is the bona de and registered owner of the suit property and therefore entitled to the prayers sought in the plaint. ii. Whether the Defendants have any legitimate claim over the suit property to justify their continued occupation and why they should not be evicted. iii. Who should bear the costs of the suit. It was submitted that the plainti has clearly demonstrated that he is the bona de, legitimate registered owner of land Parcel No. 11344/1598 (IR NO.139430). Reliance was made to Section 24(b) of the Land Registration Act which provides as follows: “ The registration of a person as the proprietor of a lease shall vest in that person leasehold interest described in the lease together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.” 21. Counsel also cited Section 26 (1) of the Land Registration Act which further provides: “ …That the certicate of title issued by the registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certicate.........” 22. Counsel urged the court to nd that the evidence on record shows that the suit Land is registered in the name of the plainti and he is therefore entitled to the protection under Sections, 24, 25 & 26 of the Land Registration Act. Reliance was placed on the case of Willy Kipsongok Morogo v Aibert Morogo (2017) eKLR. 23. It was also submitted that there was no evidence on record from the Defendants for evaluation by the Court and hence the averments contained in their defence are unsubstantiated. It was further submitted that the Plainti has discharged his burden of prove on the balance of probability and the Defendants have failed to controvert his case by failing to call evidence. Reliance was placed in the case of Kiplangat Shelisheli Mutarakwa v Joseph Rotich Kones [2018] eKLR. 24. It was further submitted that Article 40 of the Constitution of Kenya protects a person’s interest or right over their property. It was submitted that the Defendants unlawfully without any colour of right or lawful justication, trespassed and forcefully entered and used public resources to construct a police post on his land despite his cry for justice. 25. The Court was urged to grant the reliefs sought since the plainti had proved his case to the required standard. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 4

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The Submissions Of The 1St, 2Nd And 3Rd Defendants: 26. The 1st, 2nd and 3rd Defendants led written submissions through Motari Matunda, Principal Litigation Counsel. Counsel submitted on the following issues: i. Whether the Plainti procedurally acquired the suit land from Umitag Investments. ii. Whether the suit land was available for allocation to private parties iii. Costs. 27. It was submitted that the plainti’s evidence demonstrates that he is the lawful owner of the suit land and that he purchased the suit land from Umitag Limited who had been allocated the suit parcel by the Nairobi City County and he produced a letter of allotment dated 26 October 1992. 28. That the purchase of the letter of allotment preceded with another letter of allotment dated 19th August 1996 which was issued after 4 years and contained various conditions that were to be complied with by both Umitag Investments and or the plainti. 29. In the cause of the hearing, no evidence was produced to demonstrate that indeed either Umitag Investments nor the Plainti ever complied with the said conditions that were contained in the letter of allotment to constitute a mutual contract in the oer. 30. It was submitted that failure to comply with the conditions on the letter of allotment within the stipulated timelines invalidates the process behind the letter of allotment and no lease would be capable of being issued as the letter of allotment constituted an oer to mutual contract where the Plainti did not perform his part of the contract to make the process binding. Reliance was placed in the Supreme Court Petition No. 5 of 2022 between Torino Enterprises Limited v Attorney General and National Social Security Fund v Attorney General. 31. It was also submitted that the suit land was an open space that had never been developed till the CDF oce developed a police post on the suit land. The County Government of Nairobi did not oppose the said construction that were being carried out by the 4th, 5th and 6th defendants and hence the presumption which is true that the suit land was public land. 32. It was submitted that there was no wrong doing by the 1st to 3rd Defendants and the Court was urged to nd as such and declare the suit land to be public land and revoke the Plaintis title. 33. It was also submitted that the Defendants should not be condemned to pay costs for the reasons that the genesis of the litigation herein has been the illegal and unlawful acquisition of public land. The Submissions of the Interested Party 34. The Interested Party led written submissions dated 29th September, 2023 through the Law rm of Muri Mwanike Thige & Kagari LLP Advocates. The Interested Party submitted in support of the plainti’s case. It was submitted that the Defendants did not call any witness at the trial nor submitted any documentation in evidence and hence the Plainti’s case and evidence remains uncontroverted. 35. It was submitted that the Bank advanced a sum of Kshs 13,000,000.00 to Marge Enterprises Limited which was secured by a Charge over the property known as L.R. No. 11344/1598 which was registered in the names of the deceased Plainti. It was also submitted that the bank did its due diligence prior to disbursing the funds by carrying out an ocial search at the Lands Registry and conrmed that the deceased Plainti was the registered owner of the suit property. The Court was urged to grant the reliefs sought by the Plainti. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 5

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Analysis and Determination 36. 37. Having evaluated the pleadings on record, oral and documentary evidence adduced together with written submissions led, this Court outlines the following issues for determination: i. Whether the Plainti is the bonade registered owner of the suit property. ii. Whether the Plainti is entitled to the reliefs sought. Article 40 of the Constitution elaborates on the protection of right to property. “ (1) (2) (3) 38. Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property— (a) of any description; and (b) in any part of Kenya. Parliament shall not enact a law that permits the State or any person-(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or (b) to limit, or in any way restrict the enjoyment of any right under this Article on the basis of any of the grounds specied or contemplated in Article 27 (4). The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or (b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that (i) requires prompt payment in full, of just compensation to the person; and (ii) allows any person who has an interest in, or right over, that property a right of access to a Court of law.” Indefeasibility of title is provided for in Section 26 (1) (b) of the Land Registration Act which states; “ The certicate of title issued by the Registrar upon registration or to a purchaser of land upon a transfer … 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 … 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 6

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(b) where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 39. In the instant case, deceased Plainti adduced evidence that he was the registered owner of the suit property L.R. No. 11344/1598 (I.B. No. 139430) having purchased the same from Umitag Investments who were the original allotee from Defunct City Commission on or about August, 1996. He also adduced evidence that he was paying all the land rates to the County Government of Nairobi. 40. The court also observed that the said property was charged to Equity Bank on 21st July, 2016 when a sum of Kshs 13,000,000.00 was advanced to the Plainti. 41. It is worth noting that the Defendants never called any witness to controvert the evidence adduced by the Plainti. Therefore, the Defendants’ defence remains mere allegations as the Plainti’s testimony was not rebutted. Article 40 (3) of the Constitution provides that: “ The state shall not deprive a person of property of any description or of any interest in or right over property of any description, unless the deprivation a. Results from an acquisition of land or an interest in a land or conversion of an interest in land, or title to land, in accordance with chapter ve or. b. is for public purpose or in public interest and is carried out in accordance with this constitution and any Act of parliament that requires: i. requires prom payment in full, of just compensation to the person; and ii. Allows any person who has an interest in, or right over, that property a right of access to a court of law.” 42. If the defendants were desirous of compulsorily acquiring the suit land for purposes of building a police post or any other use they ought to have followed the law, the due process and the laid down procedure for compulsory acquisition including full and commensurate compensation. The forceful and illegal entry by the defendants or ocers or persons, contractors acting under them into plainti parcel of land is an aront on the plainti’s proprietary rights enshrined in the constitution. 43. In the circumstances, the defendants have failed to demonstrate by way of evidence any plausible or legitimate claim over the suit property to justify their continued occupation of the same. 44. It is not in doubt that the Plainti is still the registered owner of the suit property. The Court having analyzed the evidence adduced herein, it is satised and nds that the Plainti is the bonade registered owner of the suit property L.R. NO. 11344/1598 (I.R. No. 139430). Issue No. 2 Whether The Plainti Is Entitled To The Reliefs Sought 45. The Plainti sought for various reliefs as outlined in the amended plaint dated 24th March, 2023. As stated earlier, this Court is satised that the Plainti’s case was proved to the required standard and as such, the Plainti is entitled to the reliefs sought. In the instant case, the Defendants did not adduce any evidence to substantiate the averments contained in their defence or to rebut or controvert the Plainti’s case. The Defendants despite being notied of their action did not act in any manner to remedy the situation and in the circumstances the court will proceed to grant the Plainti the prayers sought. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 7

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46. In respect to costs of the suit, as a general rule, the successful party is entitled to costs unless otherwise directed by the court and in the instant case, the Plainti having been successful, this Court shall proceed to award costs of the suit to the Plainti. Final Orders: 47. In conclusion, it is the nding of this court that the Plainti ‘s case has been proved to the required standard and this Court makes the following orders: a. A Permanent injunction is hereby issued restraining the Defendants whether by themselves or their agents, servants from trespassing, developing or in any way interfering with the Plainti’s quiet possession of the parcel of land known as Land Reference Number 11344/1598 (I.R. No. 139340) Mowlem Section, Dandora Estate, Nairobi County. b. A mandatory injunction is hereby issued directing the Defendants, their agents or servants to vacate and demolish any and all developments constructed on land known as L.R. Number 11344/1598 (I.R. No. 139430) Mowlem Section, Dandora Estate, Nairobi County within one hundred and twenty (120) days from today. c. Costs of the suit are awarded to the Plainti. Judgment accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 30TH DAY OF NOVEMBER, 2023. E. K. WABWOTO JUDGE In the virtual presence of: Mr. Mwangi for the Plaintiff. Mr. Motari for the 1st, 2nd and 3rd Defendants. No appearance for the other parties. Mr. Kariuki for the Interested Party. COURT ASSISTANT: CAROLINE NAFUNA. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22279/eng@2023-11-30 8

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