Kioko v Mutunga (Environment & Land Case E068 of 2021) [2024] KEELC 5702 (KLR)

they have continued to bring unsuspecting members of the public to the property despite the plaintifi repeatedly making it known to them that the plaintifi is the bona fide owner of the suit property. The plaintifi claimed that the trespass may lead to a fraudulent transfer of the suit property which may lead to the plaintifi losing his investment unless the orders sought are granted. 3. The defendant filed notice of intention to act in person dated 19th July 2021, but did not file defence although he filed a replying afidavit to the plaintifi’s application for injunction wherein he stated that he was not aware that the suit property belonged to the plaintifi and that he put up a temporary structure to protect himself from the hot weather. 4. The matter then proceeded for hearing on 13th July 2023, with only the plaintifi testifying in support of his case. Although served, the defendant did not participate in the trial. Plaintifi ’s evidence 5. The plaintifi adopted his witness statement dated 2nd July 2021 as well as his supporting afidavit of even date, as his evidence in chief. It was his testimony that he is the bona fide owner of the residential plot number LR No. 27772-Athi River by virtue of a letter of allotment issued to him by the Commissioner of Lands in 2007 and that the defendant and his agents have since 2021 encroached onto the land without any explanation. He further told the court that in the process of attempting to register the land to his name, he was informed of a gazette notice that sought to cancel the area where the land was but that there was a judgement that annulled the said cancellation. He claimed that he was the bona fide registered owner of the suit property and has resumed the process of payment of statutory dues and registration of the title thereof. The plaintifi also produced the following documents in support of his case; 1. Letter of allotment of residential plot LR No.27772 Athi River issued on 18th July 2007. 2. Part development Plan over LR No.12 of 2018 and 26 of 2019 by the High Court of Kenya, Machakos. 3. Gazette Notice No. 3454. 4. Judgment in ELC Petition No. 12 of 2018 and 26 of 2019. 6. That marked the close of the plaintifi’s case. There are no submissions on record for either of the parties, despite court’s directions on 13th July 2023 and 20th November 2023 to that efiect. Analysis and determination 7. The court has carefully considered the pleadings and the evidence and the singular issue arising herein is whether the plaintifi has proved ownership of the suit property. 8. This case was not opposed by the defendant. Nevertheless, the plaintifi is under legal obligation to prove his claim because he bears the burden of proof to prove his claim, being the plaintifi in the suit. This burden is static and remains with the plaintifi, whether or not the suit is defended. 9. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347 the Court of Appeal held that; The burden was always on the Plaintifi to prove his case on a balance of probabilities even if the case was heard as formal proof”. Likewise, failure by the Defendant to contest the case does not absolve a plaintifi of the duty to prove the case to the required standard." https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5702/eng@2024-07-24 2

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10. The legal basis for the legal burden of proof is anchored in Section 107 of the Evidence Act, Cap. 80 of the Laws of Kenya. The said section states as follows: 1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” 11. In this case, although the plaintifi alleged that he is the registered proprietor of the suit property, no title was produced to prove the alleged registration. The document relied upon by the plaintifi is an allotment letter dated 18th July 2007, wherein the plaintifi was allegedly allocated the parcel of land known as LR No. 27772- Athi River by the Commissioner of Lands. The plaintifi did not plead or produce any evidence of acceptance of the allotment. 12. It is trite that an allotment letter is an ofier and does not confer title, but the same is merely a transient right and not a good title to the property. 13. In the case of Stephen Mburu & 4 others v Comat Merchants Limited & Another [2012] eKLR, the court held as follows; …from a legal stand point, a letter of allotment is not a title to property. It is a transient and is often a right or ofier to take property. 14. In this case, there is no evidence of acceptance of the ofier in the letter of allotment or evidence of payment of the stand premium by banker’s cheque as stated in the allotment letter. Therefore, I am not persuaded that the plaintifi became the owner of the suit property on the basis of the allotment letter herein. 15. Although the plaintifi referred to Gazette Notice No. 2932 dated 17th March 2010, he produced Gazette Notice No. 3354 of 1st of April 2010 and judgments in Machakos ELC Petition No. 26 of 2019 and ELC Petition No. 12 of 2018 which referred to parcels other than the suit property. Therefore, I find no probative value in the said documents. 16. In addition, it appears from the allotment letter that the suit property which is LR No. 27772 Athi River, was already surveyed and registered at the point of allotment, as it has a registration number. In allotments done before the 2010 Constitution, the applicable law was the repealed Government Lands Act and there was a clear procedure for allocation of Government land. To begin with, only unalienated government land as defined in section 2 of the said Act, was available for allocation. Hence alienated land was not available for allocation. In addition, in allotment and allocation, an allotment letter is accompanied by a Part Development Plan (PDP) which has a specific number which is sent to the Department of Survey for purposes of survey. The Director of Surveys authenticates and approves the survey process and a land reference number is then issued. 17. In the case of Nelson Kazungu Chai & 9 Others v Pwani University [2014] eKLR, the court elaborated the procedure for allocation of unalienated Government land as follows; It is trite law that under the repealed Government Lands Act, a Part Development Plan must be drawn and approved by the Commissioner of Lands or the Minister of Lands before any unalienated Government land could be allocated. After a Part Development Plan (PDP) has been drawn, a letter of allotment based on the approved Part Development Plan is then issued to the allottee.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5702/eng@2024-07-24 3

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18. It is clear that planning came before survey, that is why there is a PDP before survey and authentication from the Director of Surveys. Therefore, land that was ordinarily allocated by the Commissioner of Lands was unsurveyed, but planned. In this case, from the allotment letter, it is clear that the suit property was already registered as LR No. 27772 before it was allocated, meaning that it had already been alienated and it is therefore my finding that the allotment letter herein does not conform to the law for want of procedure and cannot be upheld by this court. Therefore, I am not persuaded that the plaintifi owns the suit property. 19. In the premises, the plaintifi has failed to prove his claim on the required standard and the same is hereby dismissed with no order as to costs. 20. It is so ordered. DATED, SIGNED AND DELIVERED AT MACHAKOS VIRTUALLY THIS 24TH DAY OF JULY, 2024 THROUGH MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM A. NYUKURI JUDGE In the presence of: Mr. Mutava for plaintifi No appearance for defendant Court assistant – Josephine https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5702/eng@2024-07-24 4

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