Mekunde v Sanga

5. The Plainti Kwekwe Jembe Mekunde's evidence was that she was amongst the rst people to take possession of the suit premises, which is part of Ukombozi Residential Area, which was in the year 1999 and produced as Pex-1 a List of the Committee Members who had acquired possession of portions of the land within the residential area. Her initial membership and Plot No. was 188, but later on, it became Plot No. 173. 6. She proceeded to state that after her transfer to Kaloleni Law Courts as a Clerical Ocer in 2000, she continued possessing the suit land until 2016 when the Defendant laid a claim over the suit premises. This prompted the issuance of a letter dated 21st April 2016 by the Assistant County Commissioner of Bahari Division, which was produced as Pex-2 7. Notwithstanding the intervention by the Provincial Administration to resolve the ownership wrangles of the Ukombozi Self Help Group, Defendant intended to construct a structure on the suit premises in 2017, as evidenced by the scanned photographs produced as Pex-3. 8. Robert Mwatando Mwagambo testied as PW2, supporting the Plainti’s case. He adopted his witness statement dated and led on 20th April 2023 and 24th April 2023, respectively. His evidence was that he was the Chairman of Ukombozi Residence from 2008 to 2013 and knew that the Plainti owned the suit premises. He questioned why the Plainti’s name was removed from the List of beneciaries of the Ukombozi Residence after his oce tenure had lapsed in 2013. 9. Jimmy Charo Karisa testied to support the Plainti’s case as PW3. He adopted his witness statement dated and led on 20th April 2023 and 24th April 2023, respectively. The witness's evidence was that in 1992, Plainti hired him to clear a bush within the residential project. The witness told the court that he had received information from Elina Ningome Jembe (PW5) that Defendant had bought Plainti’s parcel of land from Mtawali - Julius Karisa Jefwa (DW2). Based on this information, he and the Plainti approached the said Mtawali, whom they could not nd at home, but his wife and mother conrmed that the suit property belongs to the Plainti. 10. One Saada Violet alias, Violet Sada Shems, testied in favour of the Plaintis on 31st October 2023 as PW4. She adopted her witness statement dated and led on 20th April 2023 and 24th April 2023, respectively. This witness, who was the Secretary of the Ukombozi committee from 2005 to 2013, conrmed that the suit property belongs to the Plainti. She also conrmed that any Minutes of a meeting or documents without certication from the oce were not genuine. 11. The last witness in the Plainti’s case was Elina Ningome Jembe, who testied on 31st October 2023 by adopting her Statement dated and led on 20th April 2023 and 24th April 2023, respectively. Her evidence was that the said Mtawali sold the suit premises to the Defendant with the belief that the lawful owner of the land was deceased. 12. The Defendant, Gladys Dzame Sanga, testied as DW1 and adopted her statement dated 3rd April 2017. She said the Plainti never produced a single document or payment receipt showing ownership of the suit property. The minutes produced show membership No. 118 has never been plot No. 173. She said she bought plot No. 173, allotted as No. 157, by one of the beneciaries, Julius Karisa Jefwa, who also testied as DW2 and conrmed the same. DW2 further stated that the plainti attempted to grab the plot through provincial administration but failed. The Defendant further stated that upon payment of the purchase monies to DW2, she was duly entered into the register as a benecial owner of the plot as witnessed by Fredrick Dzengo, who testied as DW3 and conrmed through his statement dated 26th April 2023 that he was the Chairman of Ukombozi Self-Help Group and witnessed the change over of plot No.173 from Julius Karisa Jefwa (DW2) to Gladys Sanga - the Defendant herein. A receipt was issued to that eect. He further conrmed that the Plainti had never owned a plot in https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13729/eng@2024-12-10 2

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that area. He further said that when an audit was done, and members were asked to be physically on their plots, Plainti never attended nor sent any representative to conrm her plot. 13. Looking at the evidence I have, and this being unregistered land, at the hearing hereof, it emerged that the suit property, according to the Plainti (the one the plainti claims was allocated in 1999 as Plot No. 118/Ukombozi Scheme), was later allegedly changed to Plot No. 173. According to her, in 2016, the Defendant invaded it and erected structures but was stopped by the Government. 14. On the part of Defendant, the Plot never belonged to Plainti but to Julius Karisa Jefwa (DW3), who sold it to her in 2017. The record held by the group shows that. 15. I will agree with the Defendant's submissions that in determining rights over an unregistered land, the dictum by Onguto J.in Coroline Awinja Ochieng & another v Jane Anne Mbithe Gitau & 2 others [2015] eKLR citing Nourse LJ. in Sen v Headley [1991] Ch. 425 at 437 is relevant: “ …. It is the delivery of deeds documents that assist in proving not only dominion of unregistered land but also ownership. The deeds must establish an unbroken chain that leads to 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 prove ownership. It is such documents which are basically the essential indicia of title of unregistered land.” 16. See also the decision in the case in Danson Kimani Gacina and another v. Embakasi Ranching Company Ltd [2014] eKLR where the Court held that: “ The law on unregistered land, unlike on registered land, is slightly unclear. Proof of ownership in the case of the former 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 showing the 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.” 17. Apart from the Plainti showing that she was among the founders of Ukombozi- Self Help Group that acquired land for its members, the records held by the said group do not show her ownership of the plot. She did not demonstrate how she acquired the land in question by documents or chain of documents. The records held by the ocials are conicting. There are various cancellations, and members are in multiple Courts over the allocations. In my view, those members are wrong. Instead of getting titles for their members in court, the ocials give warring lists of who is a member and who is entitled to what plot. Based on the documents produced and the ocials' poor record-keeping, the Defendant could also not show the property's chain of ownership because of the ocials' poor records. 18. The Plainti's suit is hereby dismissed. As I have said, since the ocials of the Ukombozi Self-Help Group are keeping fault records of its membership, each party will bear own costs. DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY ON THIS 10TH DECEMBER 2024. E. K. MAKORI JUDGE In the Presence of: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13729/eng@2024-12-10 3

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Ms. Kenga, for the Plainti Mr. Magiya, for the Defendant Happy: Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13729/eng@2024-12-10 4

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