Githaiga v Murray & 6 others

republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos SUSAN LABOSO…………………………………………………………………………… …4TH DEFENDANT JOSEPH RUTO………………………. ………………………………………………………….5TH DEFENDANT JOSEPH KAHIGA GATHIRWA……………………………………………………………6TH DEFENDANT JOHN ENDONGA AKAI…………………………………………………………………….7TH DEFENDANT JUDGMENT 1. The plaintiff vide a Plaint dated 17/03/2023 approached this court seeking judgment against the defendants for: a. An order of eviction against the defendants for parcel number Nakuru Municipality Block 20/303, b. A declaration that parcel number Nakuru Municipality Block 20/303 is lawfully allocated to the Plaintiff,

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos c. An order of injunction restraining the Defendants by themselves, their servants or agents from trespassing on parcel number Nakuru Municipality Block 20/303, d. Costs of this suit. 2. The plaintiff contended that on or around 05/07/1996 he was allocated property known as LR. No. Nakuru Municipality Block 20/80 by the Commissioner of lands. That he paid the standard premium of Kshs. 32,940,00 as set out in the letter of allotment and that he has been paying rates to the County Government of Nakuru. It was his case that there was an amendment to the Registry Index Map sometimes in the year 2016 after which the lease document for the parcel Nakuru Municipality Block 20/303 was issued and that he was issued with the lease on 05/12/2019. He contended that despite the foregoing, his attempt to develop the property was curtailed by the defendants who are trespassers thereon. 3. The defendants entered appearance and filed their statement of defence dated 30/05/2023 and later amended the same thus filing their Amended Statement of Defence and Counterclaim

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos dated 05/04/2024. In their counterclaim, the defendants prayed for judgment against the plaintiff for: a. A declaration that the defendants are the lawful and/or beneficial owners of LR. No. Nakuru Municipality Block 20/80 as Squatters thereon, b. An order of permanent injunction restraining the plaintiff by himself, his agents, employees, servants and/or anyone claiming under him from claiming proprietary rights, further trespassing, remaining on, entering or renting, carrying on any developments, leasing, charging and or in any way dealing with and/or interfering with the defendants’ peaceful and quiet possession, use and enjoyment of LR No. Nakuru Municipality Block 20/80, c. Costs of the suit and the counterclaim, d. Interest in (c) above from the date of filing the suit until payment in full, e. Any other further order as the court may deem fit to grant.

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos 4. The defendants contended that at all material times relevant to this suit, they and their parents were and had been the beneficial owners of the suit property being LR. No. Nakuru Municipality Block 20/80 since 1950s as they were employees of Kenya Meat Commission until the operations of the said commission were stopped in the 1980s. It was their contention that the plaintiff was never an employee of the said commission thus he could not have proprietary rights over the suit property. That they have enjoyed peaceful and quite occupation and use of the suit property as squatters for over 60 years until sometimes in or around the year 2021 when the plaintiff purported to serve them with a notice requiring them to vacate on the allegations that he was allocated the suit property in the year 1996, a fact which was not true. That on account of their employment, they were settled on the suit property and have been living thereon as squatters, extensively developed then same and even buried their loved ones thereon. 5. This suit proceeded for hearing on diverse dates viva voce. The plaintiff testified in his case as PW1, and called the regional

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos surveyor for Rift Valley, PW2, Peter Wanyama, as his witness. The 1st defendant testified on behalf of all the other defendants. The plaintiff and the 1st defendant basically relied on their respective witness statements and produced the documents filed on their behalf herein. Parties then filed their respective written submissions. 6. There are 3 main issues for determination herein. They are: a. Whether the plaintiff has proved that he is the registered lessee of the parcel number Municipality Block 20/303, b. What is the relationship between Nakuru Municipality Block 20/80 and Nakuru Municipality Block 20/303, c. Whether the parties herein are entitled to the orders sought in the cross-suits herein DETERMINATION 7. The plaintiff sought to prove that he was allocated plot block number 80. He called the region’s surveyor as an expert witness as PW2 who however clarified that Block number 80 was not reassigned as Block 20/303. This expert witness confirmed that Block 80 was reassigned number 304, and that a separate block 80 still exists.

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos 8. Going by this crucial evidence, I do find that there is a material contradiction in the ownership status of the subject parcel herein. It is therefore doubtful whether the lease herein, produced as PExh. No. 11 did arise out of the allocation of Block 80 as claimed by the plaintiff herein. The plaintiff thus cannot rely on this lease to claim ownership of block 80. To this extent, I find that the plaintiff’s case and/or claim as the bona fide allottee, and subsequently, a lessee of block 80 doubtful. 9. The defendants in the counterclaim have claimed beneficial ownership of block 80, which they claim they having squatted in for over 60 years. I however find that this court has no jurisdiction, or that they have not properly moved the court, to declare them as owners on account of being squatters thereon. There is thus no other option but to dismiss the cross-suits herein, which I hereby do, for want of proof. Each party to bear own costs. DATED, SIGNED AND DELIVERED AT NAKURU, VIRTUALLY, THIS_03rd __DAY OF___September___,2026

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republicofkenyathejudiciaryinthechiefmagistrate’scourtatnakuruelccaseno.e055of2023apndegespmsamuelgithaigap laintiffversuspeterwaiganjomurray1stdefendantharonmwangi2nddefendanteunicechepkoechtowet3rddefendantsusa nlaboso4thdefendantjos ALOYCE-PETER-NDEGE SENIOR PRINCIPAL MAGISTRATE In the presence of; Plaintiff’s Counsel: N. Njoroge Defendants’ Counsel: Ouma Plaintiff: n/a 1st Defendant: Present 2nd Defendant: n/a 3rd Defendant: n/a 4th Defendant: Present 5th Defendant: n/a 6th Defendant: Present 7th Defendant: Present

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