Vincent Sammy Monda v Mohamed Abdalla Amin & 6 Others

fifth defendants prepared and processed a lease in favour of the first defendant over the suit land. The lease was to be for a term of 99 years with effect from 1st June 1992. The plaintiff avers that the preparation of that lease was illegally and fraudulently done. That lease was dated 24th May 2023 and was registered at the Mombasa Lands Registry on the 11th December 2023. The plaintiff states that he has been denied entry into the suit land by the second defendant. 2. The plaintiff seeks the following orders: a. A declaration that the lease dated 24 th May 2023 issued to the first defendant is illegal and or obtained by fraud and should be therefore be cancelled; b. A permanent injunction to restrain the second defendant, his agents, servants and or employees whatsoever from interfering and using the suit property in any manner whatsoever; c. A declaration that the plaintiff is solely entitled to ownership and vacant possession of Land Reference Number 1177 Watamu CR number 83579 herein and order of eviction to issue; d. An order directing the Registrar of Titles to issue the plaintiff with a lease for the suit portion LR number 1177 Watamu; e. Order for damages against the defendants; f. Costs of this suit; g. Interest on (f) above; h. Any other relief or remedy that the court may deem fit and just to grant. The First and Second Defendant’s Defence 3. The first and second defendants never filed any pleading or other document in this matter. MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 2 of 13

page 2 of 13

The 3rd To 7th Defendant Statement of Defence 4. The 3rd to 7th defendants filed their defence dated 14 th January 2025 in which they denied the plaintiff's claim and averred that if indeed letters of allotment were issued to the plaintiff and the first defendant, then the first allotment in time should prevail, being the one issued to the first defendant; that the plaintiff had failed to fulfill the conditions contained in the lease (read the letter of allotment) regarding payment and they did not seek extension of time to regularize the position. They further stated that in the preparation of the lease over the suit property their officers exercised due diligence and believed the documents presented to them were genuine. The defendants faulted the plaintiff for seeking a permanent injunction regarding a parcel of land different from the one he claims to own through his letter of allotment, and stated that the orders sought are undeserved. Substituted Service. 5. An application dated 6th February 2025 was made for orders of substituted service with regard to the first and second defendants which were granted on 12 th February 2025. Service was affected by a notice in The Standard Newspaper of 25th February 2025 and an affidavit of service of Victor Awili Erulu, dated 28th February 2025 attaching a copy of the newspaper notice, was filed in this matter. On 8th April 2025 the Deputy Registrar, Hon I. Thamara entered judgment against the 1st and 2nd defendants in default of appearance and defence and order that the matter be proceed for formal proof as against them. EVIDENCE. Plaintiff’s Evidence. MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 3 of 13

page 3 of 13

6. None of the defendants filed any documents or lists of witnesses or witness statements and the suit proceeded solely on the basis of the evidence of the plaintiff which was uncontroverted. 7. The plaintiff testified on 12th March 2026 and adopted his witness statement dated 12th November 2024 as is evidence-in-chief. He also produced the documents listed as per the list dated 12 th November 2012 as PExh 1 to 8. His evidence aligned well with the contents of his plaint. 8. Upon cross-examination by Mr Munga he admitted that there were two letters of allotment to the suit land and insisted that he was issued with his letter of allotment first, and that he paid for it. He stated that he is not aware whether the first defendant also paid for the suit land. He maintained that the land was vacant and available for allocation. He maintained that he is now in possession of the suit land. 9. Upon re-examination by Mr Kiponda, he maintained that he is in possession and that he has fenced the land; that the first defendant however went to the land and attempted to erect a wall which led to the institution of the present suit to assert the plaintiff’s rights. He stated that the first defendant still continues to disrupt the plaintiff to date yet he is aware of the court process, having been served by substituted means. Evidence for the 1st -7th defendants 10. A stated earlier, no evidence was called for all the defendants. On 5th May 2026, all their respective cases were marked as closed. SUBMISSIONS 11. The plaintiff's submissions dated 11th June 2026 were filed. The plaintiff’s submissions addressed the following issues: a. Whether the plaintiff acquired a valid interest over the suit property; MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 4 of 13

page 4 of 13

b. Whether the lease issued to the first defendant was valid; c. Whether the court can cancel the title and lease; d. Whether the government officers can be held liable for irregular registration; e. Whether the suit is statute barred. 12. Regarding the first issue, counsel maintained that the plaintiff had proved that he was issued with a letter of allotment dated 13 th August 1992 for the suit property and that he complied with the terms of the allotment by paying the required sum of Kenya Shillings 19,350/= and was issued with an official receipt Number 616646 dated 5th July 1993 and that upon acceptance of the allotment and payment of the requisite charges the plaintiff acquire legitimate interest capable of protection by the court. The first defendant only made payment on 3rd November 2021 after the plaintiff had settled the sum required by the government. The plaintiff’s counsel maintained that the first defendant failed to comply with the terms of his allotment in that he paid the required premium and dues many years after the 30 days provided for in the letter of allotment had lapsed, and that his allotment could therefore not lawfully take precedence over the plaintiff’s interest. He maintained that an allotment does not exist in perpetuity that where the allottee fails to comply with conditions contained therein; that it is only the plaintiff who had complied with the conditions attached to his allotment within a reasonable period and therefore his accrued interest deserved protection. He relied on the case of Funzi Island Developments Limited and 2 Others versus County Council of Kwale and 2 Others 2014 eKLR on the creation of enforceable rights once an allottee compliance with an allotment letter’s terms and conditions. Counsel also cited Wreck Motors Limited Versus Commissioner of Land and Three Others Civil Appeal Number 71 Of 1997 on priority of rights in a case where two parties claim the same parcel of land. He maintained that the lease issued to the first MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 5 of 13

page 5 of 13

defendant was not valid because he made payment in 2021 pursuant to an allotment letter issued in 1992 requiring payment within 30 days. Without citing any specific authorities, he claimed that where an allottee fails to comply with the terms of the allotment letter within the stipulated period, the allotment lapses and confers no enforceable rights; that the processing of the lease in favour of the first defendant in 2023 was undertaken without any lawful basis and in disregard of the plaintiff's prior accrued rights. Consequently, the Certificate of Title in favour of the first defendant is liable for cancellation for having been issued pursuant to an illegal process; he cited the case of Arthi Highway Developers Limited Versus West and Butchery Limited And 6 Others 2015 eKLR in support of his argument. 13. As to whether the suit is statutorily time barred, he submitted that the impugned lease was issued on 24 th May 2023 and registered on 11th December 2023, and subsequently transferred, and that the cause of action arose upon discovery of the registration of the lease and title; that where fraud and concealment and illegality are pleaded, time begins to run from the date the fraud is discovered, or could with reasonable diligence have been discovered, and that the suit is therefore properly before the court. ANALYSIS AND DETERMINATION 14. It is not disputed that the plaintiff and the 1st defendant were both issued with a letter of allotment each on different dates, of that both of them paid the dues set out in their respective letters. It is also undisputed that the plaintiff pleaded that he paid for his allotment on 5/7/1993 and that the 1st defendant paid for his on 3/11/2021. What the 3rd -7th defendants state in response to the plaintiff’s claim is that their officers registered the lease as presented in the belief that it was genuine. However, the 1st defendant has failed, despite service, to attend court to demonstrate the genuineness of his lease. MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 6 of 13

page 6 of 13

15. The issues for determination in the present case are as follows: a. Whether the 1st defendant’s failure to pay for his letter of allotment for a lengthy period, and his act of paying after the plaintiff had paid for his own allotment caused the defendant’s allotment to lapse; b. Whether the processing and registration of the 1st defendant’s lease was illegal and fraudulent and liable to cancellation for that reason; c. Whether a permanent injunction ought to issue against the defendants; d. Whether the Registrar of Titles should be ordered to issue the plaintiff with a lease for the suit land; e. What are the orders as to damages; f. Who should pay the costs, and whether with interest? 16. Regarding the first issue as to whether the 1st defendant’s failure to pay for his letter of allotment for a lengthy period, and his act of paying after the plaintiff had paid for his own allotment caused the defendant’s allotment to lapse, this court notes that it has previously dealt with the issue of multiple letters of allotment in favour of the order of priority of date of issuance thereof. This was evident in the case of Ngarama v Kinyanjui & another [2022] KEELC 3067 (KLR) where a letter of allotment dated 27/10/1994 was held to precede a letter of allotment dated 18/12/1998 to the extent that the lease issued pursuant to the latter allotment was cancelled by court. 17. In the present case the plaintiff’s letter of allotment was issued after the 1st defendant’s. The peculiarity of this case is that none of the defendants called any evidence that could have established that the purported letter of allotment that was used to process title in the name of the 1st defendant was valid. Nevertheless, it was utilized and title documents issued to the 1st defendant. The plaintiff’s case is that even MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 7 of 13

page 7 of 13

though his letter of allotment was issued after the 1 st defendant’s the defendant’s letter of allotment should be deemed as having lapsed due to sheer effluxion of time and the fact that the plaintiff had already paid for his allotment. 18. It is correct that the defendant took a long time to pay of his allotment and did so after the plaintiff. The defendant’s letter having been issued on 20th June 1992 while the plaintiff’s was issued shortly thereafter on 13th August 1992. What occasioned the double allocation is not known. Both parties were late in payment of the sums set out in their respective allotment letters; the plaintiff paid for his allotment 5 th July 1993, almost one year after his allotment. On the other hand, the 1st defendant paid for his allotment on 3rd November 2021 about 29 years later. The plaintiff’s evidence is that he took possession of the suit land, but added that the 1st defendant keeps on disrupting that peaceful possession of the suit land. That evidence has not been controverted by any of the defendants. 19. It is that difference in the periods that the two parties took to pay for their plots, and the plaintiff’s possession of the suit land, that makes the plaintiff raise the argument that the processing of the lease to the 1st defendant was illegal and fraudulent. It is evident that though the 1st defendant had a letter of allotment he never paid for it within the requisite time, or took possession of the suit land. The plaintiff preceded him in these two exercises. In the Ngarama case (supra) this court stated as follows: “As seen from the Court of Appeal’s opinion in Wreck Motors Enterprises v/s The Commissioner of Lands and 3 others, civil appeal number 71 of 1997, the president’s approval per se was not enough to guarantee the plaintiff title to the land as he had to obtain a letter of allotment and comply with its conditions. In that case it was stated as follows: MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 8 of 13

page 8 of 13

“In our view, the endorsement or the appending of his signature by H.E. the President on the applications to the Commissioner of Lands for the suit plot or for that matter any other unalienated Government Land is not sufficient to grant title over any land to anyone. H.E. the President only approves the application for consideration by the Commissioner of Lands for allocation of any such property. It does not amount to the applicants obtaining title to such lands. Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held. See Dr. Joseph N. K. Arap Ng’ok v/s Justice Moijo Ole Keiyua & 4 Others, Civil Application No. NAI. 60 of 1997 (unreported).”” 20. I hold in the same manner in the present case: that the issuance of a letter of allotment per se to the 1st defendant was not sufficient to confer upon him title to the suit land. However, the subsequent issuance of title to the 1st defendant on the basis of a very belated payment, long after the second allotment of the suit land to another person, is the sole issue that complicates this case. 21. In the case of Ngarama (supra) this court also relied on, inter alia, the Wreck Motors Case (supra) and stated as follows: 64. In the case of Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] eKLR, the court held as follows: “Title to landed property normally comes into existence after issuance of a letter of allotment, meeting the conditions stated in such a letter and actual issuance thereafter of title document pursuant to provisions held. MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 9 of 13

page 9 of 13

See Dr. Joseph N.K. Arap Ng'ok v Justice Moijo ole Keiwua & 4 Others, Civil Application No. NAI.60 of 1997 (unreported).” “65. It would appear that even after the letter of allotment has lain idle for a long time an interest is created if payment of the sums required by the letter is made outside the period stated in the letter. Stephen Mburu & 4 others v Comat Merchant Ltd & another [2012] eKLR stated as follows: “11. From a legal standpoint, a letter of allotment is not a title to property. It is a transient and often conditional right or offer to take the property. See Wreck Motor Enterprises Vs. Commissioner of Lands and others Nairobi Civil Appeal 71 of 1997 (unreported), Jaj Super Power Cash & Carry Limited Vs Nairobi City Council and others Nairobi, Civil Appeal 111 of 2002, Court of Appeal, (unreported). Mirrored against the 1st defendant’s registered interest in the land, and the evidence, the plaintiffs’ claim is on a quicksand. It may well be true that the 1 st defendant did not pay the stand premium or other charges within the prescribed time in the letter of allotment. But payment was accepted. A registrable interest has been created and two lease titles issued. The registered interest ranks higher than the transient rights in the letters of allotment.” 22. Compliance with the terms of the letter of allotment therefore creates a registrable interest. The plaintiff having raised the issue of injustice in the issuance of a title to the 1 st defendant 29 years after an allotment and in disregard of his possession and payment for the land, it is the promptitude of payment or lack thereof that should guide this court into determining if the 1st defendant’s letter had lapsed. 23. The period of grace granted in both letters of allotment being 30 days, it would appear to this court that 29 years is an exceedingly long MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 10 of 13

page 10 of 13

time to take to pay for an allotment. On the other hand, the admitted delay of 1 year taken by the plaintiff, while considered in conjunction with his possession of the suit property (though repeatedly disturbed by the 1st defendant), is excusable in that those two events showed an intention to secure ownership. It would appear to this court that the land allocation authorities ought to have considered those two events for their implications compared to the 1 st defendant’s excessive lethargy in taking any action to secure title. 24. There is justification in the finding that when the plaintiff paid for the letter of allotment and the government accepted that payment, it follows as per the dicta in Wreck Motor Enterprises (supra), that in the absence of payment for allotment by the 1 st defendant, a registrable interest was created in his favour. 25. I am mindful that the present dispute is not on adverse possession, but drawing from cases of adverse possession in Kenyan law the period considered to be sufficient to bar a claimant from any effective recovery of land proceedings is 12 years. 26. The 30-day imitation period for compliance with the two letters of allotment’s conditions was set with a purpose. It meant that the allotment is not open ended; that some action signifying acceptance had to be taken by allottees. This court considers that the limitation was set due to the realization that government land is not an infinite resource and that it should be conditionally made available to whoever applies and accepts the set conditions within the set period. In cases where the period of default of compliance is not considerable this court has had no difficulty in upholding the first letter of allotment. However, it is now recognized in the Constitution that land being a vital factor of production in Kenya and is a finite resource, it must be made available to all eligible persons on an equitable basis and it must also be put to proper use as soon as practicable from the time of allocation. The MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 11 of 13

page 11 of 13

Constitution of Kenya sets out some of the general principles of land policy at Article 10 as follows: 60. Principles of land policy (1) Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable, and in accordance with the following principles— (a)equitable access to land; (b)security of land rights; 27. In view of the provisions of the Constitution with regard to the principles of land policy, it appears inequitable to favour and issue title to an allottee who delayed for 29 years in meeting the requirements of his allotment while another allottee who paid for the same land within one year of allotment and took possession thereof is still awaiting title. This court thus considers correct the submission by the plaintiff’s counsel, and it concludes that it is only just and equitable to hold that the time taken by the 1st defendant to comply with the terms letter of allotment was by all standards excessive and that the letter of allotment had lapsed. 28. As to whether the processing and registration of the 1 st defendant’s lease was illegal and fraudulent and hence liable for cancellation, the allegations of fraud have not been effectively controverted by the evidence of the defendants. However, fraud in civil cases must be proved beyond a balance of probabilities but below beyond reasonable doubt -see Abdulkadir Shariff Abdirahim & another v Awo Shariff Mohammed T/A A. S. Mohammed Investments [2014] eKLR and Ratilal Gordhanbhai Patel Vs Lalji Makanji [1957] E A 314. 29. This court is of the view that it was within the knowledge of all the defendants that the plaintiff had paid for the allotment and was in possession of the suit land by the time the 1st defendant paid for the land, and was awaiting title. I thus find that that and registration of the MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 12 of 13

page 12 of 13

same land in the 1st defendant’s name and the transfer thereof to the 2nd defendant was fraudulent and ought to be cancelled. 30. It is axiomatic then that the plaintiff having met the conditions of allotment letter, is entitled to be registered as the owner of the suit land and also that a permanent injunction order should issue against the 2nd defendant to restrain him from any interference with the suit property. 31. As no evidence regarding damages was adduced none shall be awarded against the defendants, but the costs of the suit shall be in any event be borne by the defendants jointly and severally. Interest on costs from date of taxation is awarded till payment in full. 32. The upshot of the foregoing is that the plaintiff’s claim against the defendants succeeds and the court grants prayers nos (a), (b), (c) (d) and (f) as prayed in the plaint dated 12/11/2024. Dated, signed and delivered at Malindi on this 30th September 2026. HON JUSTICE MWANGI NJOROGE JUDGE, ENVIRONMENT AND LAND COURT, MALINDI. MLDELCCE118/24-JDGT/DF-15.11.24/FH-12.03.26/LH-05.05.26/DJ-30.09.26F. Page 13 of 13

page 13 of 13