Ngunjiri v Ibrahim

2. The Defendant entered appearance and led his statement of defence and counter claim dated 20th January, 2022 where he denied the allegations in the plaint and sought for the following orders: a. A declaration that the Defendant (now plainti) Ali Ibrahim, is the lawful proprietor and registered owner of the parcel of land known as Parcel No. LR. NO. 29008, located in Gilgil Township. b. A declaration that the Plainti (now defendant) John Muthee Ngunjiri is a trespasser to the parcel of land known as Parcel No. LR. No. 29008, located in Gilgil Township. c. Permanent injunction against Plainti (now defendant) John Muthee Ngunjiri either by himself, his agents, employees and/ or servants from trespassing, entering, subdividing, allocating, occupying, selling, leasing, charging, transferring, fencing, erecting any structures or dealing in any way with the Defendant (now plainti) Ali Ibrahim’s piece of land known as Parcel No. LR. NO. 29008, located in Gilgil Township. b. A declaration that land parcel number LR NO. Gilgil/Block 1/26307 (Kikopey) and currently undergoing the process of subdivision into LR Gilgil/Gilgil Blocks 1/31518-31538 does not exist and thus any Title Deed issued to this eect is null and void. c. An order of cancellation of any Title purporting to be title to land parcel number LR No. Gilgil/Block 1/26307 (Kikopey) and cancellation of the resultant subdivisions thereof being LR Gilgil/Gilgil Blocks 1/31518-31538. f) Costs of this suit and the counterclaim g) Interest in (f) above Plaintis’ Case 3. John Muthee Ngunjiri testied as PW1 where his statement led on 19th July, 2016 was adopted as his evidence in chief. He also produced his list of documents led on 18th July, 2024 and 17th July, 2024. He testied that he trades as Thayo Auctioneers and general merchants. It was his testimony that he purchased the suit parcel Gilgil/Gilgil Block/26307 from James Kianja Karanja. He produced the sale agreement as (PEX1). He further testied that at the time of purchase there was no title. He testied that he paid the balance of Kshs 50,000 and received a letter from the advocate (PEX2) and the title deed (PEX3). He further testied that the Defendant gave him the title and possession. He testied that he was allocated the land by Agricultural Industrial Holdings Limited. 4. It was his testimony that he did a search at the Lands oce in Naivasha (PEX 5) after which the land was registered in his name on 25th May, 2015. He further testied that he did subdivision on 30th April, 2015 (PEX 6) after which he was issued with 21 titles at Naivasha lands oce PEX7 (1) PEX7(XX1). He testied that he had planned to place beacons but he was stopped by the Defendant. He went on to testify that he reported to the police station and was issued with an O.B. He added that he led the present case where the Defendant failed to appear after which he was issued with an ex parte judgment that was later set aside. He testied that the Defendant was issued with the Certicate of title on 11th December, 2017. He produced the green cards as (PEX 8(i) PEX 8(XX1). 5. He testied that before subdivision the acreage was 1.3 ha and the Defendant’s title was 0.8907 Ha. He testied that the letter dated 7th March, 2023 from the Director of Surveyor was captured in sheet no 11 with the new number as 31518 to 31538 in sheet no 64. PW1 produced the map sheet No.11 as PMFI 10 and PMFI 11. He urged the court to order that he be given the suit land. Upon cross examination by Okiro for the Defendant, he conrmed that he bought the suit property on 4th January, 2010 and was issued with the title deed in 2015. He stated that the property belonged to https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 2

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Agricultural and Industrial Holdings Limited and added that the vendor was deceased. He admitted that the agreement did not mention the suit parcel of land. He also admitted that he had no title and certicate of shares. He added that there was no transfer form or evidence of payment of stamp duty. He stated that he was not aware whether survey was done. PW1 stated that he was shown the boundary by Kianja and conrmed that there were no beacons. He further stated that mutation forms were received on 30th April, 2015 and he was registered on 25th May, 2015. He conrmed that his lawyer led a wrong mutation. He also stated that Agricultural holding was also known as GEMA which conrmed that he was the owner of the suit land. He admitted that he never challenged the restriction. 6. Upon re-examination, he stated that he bought a share certicate and that his interest was on the allocation to Karanja who was a director in GEMA. He further stated that Karanja showed him the land. He also stated that as at 2nd July, 2014, the title was in existence. He stated that he submitted the document to National Land Commission. 7. Eliud Ikua Karanja testied as PW2 where his statement dated 1st August, 2023 was adopted as evidence in chief. He testied that the Plainti went to see his father James Kianja Karanja in pursuit of land No. Share certicate 0413311 which belonged to his uncle Gaitho Karanja(deceased). 8. He testied that the land was given through share to Gaitho Karanja(deceased) under certicate no. 0413311 on 22nd October, 1976. He testied that the Plainti got his title on 25th May, 2015 and that they were given letter No. Gilgil Gilgil Block 1/26307 (Kikopey). He added that there was no dispute. 9. It was PW2’s testimony that in 2002, the Defendant the went to see Kianja where he requested him for place to keep his cattle. He went on to testify that Kianja gave him the land but did not sell it. He further testied that he did not know whether the Defendant was paying. He testied that the Defendant was on the land when it was sold to the Plainti. He also testied that he had left him in occupation in 1997 or 1998. PW2 testied that the land was not surveyed. He added that the Defendant had built another kraal on LR26307 where he fenced it and claimed to be the owner of the land. 10. Upon cross examination by Okiro, he conrmed that he was the son of James Kianja Karanja but admitted that he had no documents to prove the same. He conrmed that his father died on 20th October, 2020 and that there was a succession case at Naivasha High Court where he is the administrator. He stated that the land was not owned by James Kianja Karanja but that he had the power to allocate. He further stated that Kianja’s parcel was Gilgil/Gilgil Block 1/6488. He added that Kianja could not sell 26307 since he did not own it and that it had been allocated by Gema. He conrmed that he had seen the agreement dated 4th January, 2010 in the year 2024. 11. He stated that the share certicate was given to Gaiku Karanja and that 6488 was from James Kianja Karanja issued by GEMA. He also stated that the share for Gaiku was related to 26307 and that the share certicate No.0413311 was for land No.26307. He added that Gaiku Karanja his uncle was the owner of the share certicate 0413311. He admitted that his father had no share certicate related to the land in dispute since the land belonged to GEMA. He stated that the Plainti was given the land by GEMA and added that he was not aware of the transactions that led to it. He admitted that the Defendant occupied LR.6488 and that he had wanted the next land. He stated that the Plainti came in 2010. He further stated that he was not certain when the Defendant moved out of 6488. He conrmed that his father never had a title nor was he the administrator of the estate of Gaiku Karanja. 12. Upon re-examination, PW2 stated that he had a letter showing that Gema gave parcel No.26307 to the Plainti. He stated that his father was given birth certicate and he processed the title. He further stated that upon receipt of the allotment letter, they followed up the issue but did not know what transpired later. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 3

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13. Simon Gaiku Mwaura testied as PW3 where his statement dated 1st August, 2023 was adopted as evidence in chief. He testied that Gaiku Karanja was his grandfather who had parcels of land and 4 shares in the land of A.I.H (GEMA). He testied that his grandfather gave them 3 shares and remained with one share given to the land owner. He testied that his father died without a share certicate and added that one could not be given a receipt without a number. He went on to testify that there was a receipt before a share certicate and that the land was sold to the Plainti. He testied that Kianja Karanja applied for title and it was issued in May 2015. He added that when mzee Kianja got the land, he had not been allocated. He stated that Gema allocated him the land No.26307 on 2nd July, 2024. He went on to testify that he came to know the Defendant in 2012 where he kept his cattle in 26307. 14. Upon cross examination, he conrmed that his grandfather did not have a share certicate. He further conrmed that a share certicate could only be issued when you got land. He added that GEMA holding was not clear if they were selling land but he was given a receipt after payment. He admitted that at his death he had not identied the land. He stated that Kianja gave the Defendant permission to graze his cattle with the knowledge that the land belonged to someone else. He stated that he did not know whether James Karanja ever owned the land but he was certain that it belonged to Gaiku Karanja by virtue of the receipt. He conrmed that Gaiku Karanja did not have an allotment letter. He stated that James Kianja sold the land in 2014. 15. Upon re-examination, PW3 stated that John Mathew bought the land from Kianja Karanja. He further stated that his grandfather was a GEMA member. 16. This marked the close of the Plainti’s case. Defendant’s case 17. Ali Ibrahim Isaak testied as DW1 where his witness statement dated 20th January, 2022 was adopted as his evidence in chief. He also produced his list of documents dated 20th January, 2022 which documents were marked as DEX 1 to 21 subject to the surveyor producing document No. 20. DW1 produced further list of documents led on 12th July, 2024 which documents were marked as DEX 22 -DEX 24. He also produced a further supplementary list of documents dated 8th October, 2024 with one document marked as DEX 25 Upon cross examination, he stated that his land was LR No.29008 to which he had a lease from the Commissioner of lands dated 1st December, 2017. He further stated that he had allotment letters dated 15th December, 2015 (DEX25) which was issued before the lease. He added that the said allotment letter got burnt in Gilgil Teachers. He went on to state that the land was in Gilgil township and that he had the map on the surveyor’s report. He denied having claimed LR Block 1/26307 since it belonged to the Plainti. He stated that the agreement was in respect of land No. 2A for the boundary between him and Kianja since he did not know his land clearly. He stated that his land was No.272673 and that he had a receipt from the Commissioner of lands dated 16th January, 2018. He added that he paid on 16th January, 2018 and that he was sued on 19th July, 2016. DW1 stated that he had an allotment letter before being sued which got burnt in the house. He conrmed that the allotment letter had conditions and that the agreement with Kianja was done in 1988. He stated that there was a boundary between his land and that of Kianja. He also stated that the Plainti had trespassed on the road and his land. DW1 stated that he paid the Commissioner of Lands and on 15th December, 2017, he was issued with an allotment letter from the National Land Commission. He stated that he was not given any explanation for the allotment letter and added that the allotment was related to the rst allotment that got burnt. He stated that the allotment refers to L.R 29008 and that his land measures 0.897 acres while the Plainti’s measures 1.3 Ha. He stated that if the land was more than 0.897 Ha, then it does not belong to him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 4

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18. Upon re-examination, DW1 stated that the government never cancelled his allotment letter for land No. 29008. He added that his lease was issued in 2017. He went on to state that the Plainti claim was on Gilgil/Gilgil /Block 1/26307. 19. Duncan Cheptich the Land Surveyor, Naivasha testied as DW2. He testied that he held a Bachelor degree in Geospatial Information System from Jomo Kenyatta university with 12 years’ experience. He was referred to DEX 20 where he testied that the property was on RIM sheet 11 which had been subdivided in 21 portions. He testied that there was an amendment on registration sheet no 4 and that the boundaries were overlaid. He testied that no. 26307 was overlaid on 29008. He further testied that LR 29008 was done on xed survey while LR 26307 was done on general survey. He testied that the xed survey was accurate and that the plan had beacons. He testied that before the general survey they were LR before becoming Blocks. He added that for a general survey to have a number, it had to come from an invitation which was not the case. He testied that a xed survey comes from a grant or L.R 29008 falls from a xed survey using coordinates. He explained that a general survey is done by using xed boundaries maintained by the owners doing settlement by addition ocers. It was his testimony that in case of a dispute the task is assigned to the land registrar. He further testied that the xed survey was accurate by 3 centimeters while the general survey was accurate up to 1 meter. He testied that Gilgil /Gilgil Block 1/26307 fell under the general survey ownership while LR No.29008 under the xed survey. He produced the report is produced as DEX 20 20. Upon cross examination, he conrmed that the report was done by his predecessor. He added that it was an advisory to the land Registrar and that the L.R was identied on the ground by getting documents from Ruaraka. He stated that the xed survey showed the boundaries and that the original L.R was geo-referred. He conrmed that they had not made any recommendation. 21. Upon re-examination, he stated that they had ndings that assisted the Land Registrar. 22. Ali Adan testied as DW3 where his statement dated 12th July, 2024 was adopted as evidence in chief. He testied that the Defendant was his neighbor and that he had occupied it in 1988. He further testied that his land was No. 66 but also admitted that he was not certain of their numbers. He went on to testify that they had obtained a certicate of lease in 2017. He testied that the Defendant’s allotment letter was burned before 2017 and added that he had his. It was his testimony that they were unable to get certicate of lease since he was in Yugoslavia for a long time. He further testied that Kianja Karanja and the Defendant had a boundary dispute which was resolved. This marked the close of the Defendant’s case. Submissions 23. The Plainti’s counsel led his submissions dated 10th October, 2024 where he identied three issues for determination. The rst issue was who between the Plainti and Defendant was the lawful owner of the parcel of land in issue being L.R No. Gilgil/Gilgil Block 1/26307. He relied on Section 107, 108 and 109 of the Evidence Act and submits that the Plainti attached evidence to demonstrate that he is the registered proprietor of the suit land. He further submits that the only evidence of allocation of LR 29008 to the Defendant is the Certicate of title issued on 18th July, 2018 and a lease issued running from 1st December, 2017. He adds that there was no evidence by the Defendant to prove fraud in the registration process culminating to the acquisition of the Plainti’s title. 24. The second issue was whether the Defendant’s counter claim should be allowed. He submits that it is a fact that registration of the suit property preceded that of the Defendant. He further submits that no evidence has been tendered to rebut ownership of the suit property save for the allegation that there was an overlap. He urges the court to dismiss the Defendant’s counterclaim with costs. On the nal https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 5

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issue, he submits that the Plainti having established that he is the lawful owner of the suit property, the court should order that the title issued on 28th August, 2018 in respect of L.R No. 29008 in favour of the Defendant is null and void. Counsel relied on the case of Orix Oil (Kenya) Limited V Paul Kabeu & 2 Others [2014] eKLR and JR Application No 6 of 2014 Republic V Rosemary Wairimu Munene Ex Parte Applicant V Ihururu Dairy Farmers Co-operative Society Ltd. 25. Counsel for the Defendant on the other hand led his submissions dated 25th October, 2024 where he identied two issues for determination. The rst issue was whether the Plainti’s claim is merited. He relied on Section 24(a) and 26(1) of the Land Registration Act and Article 40 of the constitution and submits that the Defendant adduced evidence in the form of Certicate of lease to the eect that he is the registered owner of the suit property. He cited Section 3(3) of the Contract Act and submits that there was no written sale agreement produced that showed the Plainti purchased land parcel Gilgil/Gilgil Block 1/26307. He submits that what was being purchased vide the sale agreement was a completely dierent piece of land that is unrelated to the matter. He submits that the Plaintis title is therefore a product of illegality. He relied on the case of Republic V Land Registrar Taita Taveta District & another [2015] eKLR. He further submits that from the evidence presented by the parties, the Defendant successfully substantiated his claim of ownership while the Plainti's documentation was riddled with inconsistencies. He adds that the surveyor’s report also conrmed the same. It was his submission that the Plainti's claim to ownership of the disputed land was unfounded and unsupported by any legal documentation. 26. The second issue was whether the Defendant is deserving of the prayers as per the counterclaim. 27. While submitting in the armative, counsel relied on the case of Nguruman Limited V Jan Bonde Nielsen & 2 others, CA No. 77 of 2012; [2014] eKLR and submits that the Defendants meet the requirements for grant of an injunctive order. He urges the court to grant them costs of the suit. Analysis and Determination 28. This court has considered the pleadings, evidence on record and submissions and is of the view that it is not in dispute that both the Plainti and the Defendant each own their separate parcels of land registered in their names. It was the Plainti’s case that he purchased Gilgil/Gilgil Block/26307 from James Kianja Karanja. The title deed issued to the Plainti on 25th May, 2015 (PEX3) refers to Gilgil/Block 1/26307 (Kikopey). The letter by M.K Wandegwa dated 2nd July 2014 conrms that the plainti was allocated the parcel number 26307 by Agricultural and Industrial Holdings Ltd. A title deed was issued to the plainti on 25th May 2015. The plainti produced the title deed that was not shown to the satisfaction of the court that it was obtained fraudulently. 29. Section 24(a) of the Land Registration Act provides that: “ Subject to this Act, the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.” 30. Section 26(1) of the Land Registration Act further provides that: “ …the certicate 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 encumbrances, easements, restrictions and conditions contained or https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 6

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endorsed in the certicate, 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 b. Where the certicate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 31. The Defendant on the other hand produced evidence in form of the Certicate of Lease for parcel number LR No. 29008 issued on 1st December, 2017 which the Plainti never challenged but was not related to the suit parcel of land. It is also this court’s view that in as much as the title produced by the Plainti showed that Gilgil/Gilgil Block/26307 was registered in his name, the Defendant did not challenge this in his evidence. It is not in contention that the main issue is that of a boundary dispute between the Defendant’s land and that of the Plainti land. It was the Defendant’s case that the Plainti had trespassed on the road and his land. 32. The Land Surveyor (DW2) in his evidence relied on the survey report dated 23rd June, 2021. It was his evidence that the RIM sheet 11 had been subdivided in 21 portions and there was an amendment on registration sheet no 4. He also testied that the boundaries of Gilgil/Gilgil Block 1/26307 had overlaid on L.R No. 29008. He also conrmed that LR 29008 had been done on xed survey while 26307 on a general survey. It was his testimony that the xed survey was accurate and that for a general survey to have a number, it had to come from an invitation which was not the case. Having established that there was overlap between the Plainti’s parcel and the Defendant’s parcel, this court nds that the rst parcel of land to be created overrides the 2nd parcel of land to be created. The title issued to the plainti is a certicate of lease issued on the 28th August 2018 whereas the lease was registered on 18th July 2018. By the time the certicate of lease was being issued, the plainti had been issued with a title on the 25th May 2015 superseding the defendant’s title. The certicate of ocial search shows that the plainti was registered as the proprietor on the 25th May 2015 and the title deed issued instantly. It is trite law that where two titles to land appear to allocate the same interest on the ground in two dierent persons, the rst in time prevails. In this case, the plainti’s title prevails. 33. The upshot of the above is that the plainti has proved his case on a balance of probabilities and is therefore entitled to the orders sought. Ultimately, I do grant orders that:- 34. a. An order of temporary injunction restraining the Defendant herein whether by herself, her agents and/or servants from invading, trespassing, cultivating or in any way whatsoever interfering with the Plainti's quiet possession and use all that parcel of land formerly known as L.R NO. Gilgil/Gilgil Block 1/26307 (Kikopey) measuring approximately 1.3 Hectares and currently undergoing the process of subdivision into L.R NOS. Gilgil/Gilgil Block 1/31518-31538. b. An order of permanent injunction restraining the Defendant herein whether by herself, her agents and/or servants from invading, trespassing, cultivating or in any way whatsoever interfering with the Plainti's quiet possession and use all that parcel of lane formerly known as L.R No. Gilgil/Gilgil Block 1/26307 (Kikopey) measuring approximately 1.3 Hectares and currently undergoing the process of sub-division into LR Nos Gilgil/Gilgil Block 1/31518-31538. Other than a declaration that the Defendant Ali Ibrahim, is the lawful proprietor and registered owner of the parcel of land known as Parcel No. LR. NO. 29008, located in Gilgil Township the counter claim is dismissed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 7

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35. Each party shall bear its own costs as the Ministry of Lands was to blame for the errors that caused the parties to come to court. It is so ordered SIGNED BY: HON. JUSTICE ANTONY O. OMBWAYO THE JUDICIARY OF KENYA. NAKURU ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURT DATE: 2024-12-20 14:39:54 The Judiciary of Kenya https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/14121/eng@2024-12-20 8

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