(introduction)
Anand Kantilal Shah the plaintiff herein has come to this court seeking a declaration that he is the lawful owner of land known as Nakuru Municipality Block 17/90. He further seeks an order cancelling and/or nullifying the title deed and/or certificate of lease in the name of the 1st defendant. Moreover, he seeks an order of rectification directing the 2nd defendant to rectify the register to restore the plaintiff as the registered owner of Nakuru Municipality Block 17/90.
The plaintiff further seeks a permanent injunction restraining the defendants, their employees, agents any person claiming under them from trespassing, encroaching, intruding remaining onto occupying constructing and/or subdividing the parcel of land or in any way dealing with the plaintiff parcel of land registered as Nakuru Municipality Block 17/90. Ultimately, the plaintiff seeks the costs of the suit and Interest at court rates.
The plaintiff avers in the amended plaint that at all times material to this suit, the plaintiff was and remains the registered owner of land parcel known as NAKURU MUNICIPALITY BLOCK 17/90 measuring approximately 0.8401 Hectares situated at Milimani Area of Menengai Ward, Nakuru East Sub County, Nakuru County
The Plaintiff avers that he has recently discovered that the 1st Defendant herein fraudulently unlawfully, un-procedurally without any color of right and/or through underhand means and/or illegally colluded with the 2nd Defendant to change the ownership of all the parcel Nakuru Municipality Block 17/90 by purportedly and illegally opening a new register without legal basis.
According to the Plaintiff, the 1st Defendant's certificate of lease was purportedly issued on the 31st May 2021 whereas the plaintiffs certificate of lease was issued on the 3rd December 2014 after several transactions all reflected in the green card for the parcel. The plaintiff alleges that the 1st defendant title was obtained fraudulently in collusion between the 1st defendant and the 2nd defendant.
The 1st defendant filed defence and counter- claim. He states that he is the lawfully registered owner of the suit land and that the green card flaunted by the plaintiff is invalid. He states that the official search confirms that he is the owner of the suit land. Ultimately, he prays for judgment for a declaration that the 1st Defendant, Willy Kimagut Rop acquired valid interest over property known as Nakuru Municipality Block 17/90 (the suit property), is lawfully registered as the proprietor thereof and is ended to absolute ownership, possession and occupation of the same to the exclusion of the plaintiff .
The 1st defendant seeks a permanent injunction to be issued restraining the Plaintiff herein, Anand Kantilal Shah whether by himself, agents and or servants or otherwise howsoever acting on his instructions from trespassing, occupying, remaining upon, charging, leasing, disposing of, or in any manner howsoever dealing or interfering with the 1st Defendant's, Willy Kimagut Rop right as to ownership, quiet and peaceful possession and utilization of property known Nakuru Municipality Block 17/90 (the suit Property) which order should be enforced by the Officer Commanding Station Nakuru Central Police Station..
He further seeks a permanent injunction against the Anand Kantilal Shah, prohibiting himself, servants or agents from entering upon, remaining upon, occupying or in any manner howsoever interfering with the Plaintiff in the counterclaim Willy Kimagut Rop's ownership, occupation, quite possession and utilization of the property known as Nakuru Municipality Block 17/90 (the suit property), in default, an eviction order do issue and which order should be enforced by the Officer Commanding Station, Nakuru Central Police Station or any other nearby police station.
The 1st defendant also seeks a mandatory injunction do issue compelling the 2nd Defendant, the Chief Land Registrar to annul and/or revoke any purported title documents held by the Plaintiff namely Anand Kantilal Shah relating to property known as Nakuru Municipality Block 17/90. Lastly he seeks General Damages for trespass and infringement of property rights.
The 2nd defendant denies fraud and blames the 1st defendant for misrepresentation of facts. He prays for the plaintiffs’ suit against the 2nd defendant to be dismissed.
(Evidence on Record)
When the matter came up for hearing the plaintiff, Anand Kantilal Shah testified that he is the registered owner and/or proprietor of the aforementioned parcel of land which he acquired from Michael Cherop Rotich sometimes in the year 2013-2014. He has been in actual occupation of the said parcel of land since acquiring it. The register for the parcel of land was opened way back in the year 1992 as shown in his title and the previous titles. The same is moreover verified by the Green Card for the parcel which shows that since the same was opened on the 17th February, 1992 there have been several transactions culminating with his title which was issued on the 3rd December 2014. Indeed because of rampant land fraud in Nakuru, he took the extra step to protect his title by registering a restriction through his advocates. Recently, and without any notice or his consent the 1st Defendant herein fraudulently, unlawfully, un-procedurally without any colour of right and/or through underhand means and/or illegally colluded with the 2nd Defendant his agents, employees and/or subordinates purported to change the ownership of all that parcel Nakuru Municipality Block 17/90.
That the 1st Defendant with the assistance of the 2nd Defendant illegally and/or fraudulently purported to open another Green Card issued on the 16th June, 2021 that caused a Certificate of Lease to issue on the 31st May, 2021 in the name of the 1st Defendant. That this clearly fraudulent act is so brazen because the 1st defendant did not even pretend to have purchased the parcel but rather purported that the land situated in the built up area of Milimani did not even have title and had its parcel file opened only in June 2021. It is so obviously fraudulent that the 1st defendant cannot possibly have any claim that he is innocent about fraud.
The plaintiff testified that upon realizing that the 1st Defendant had started encroaching and was threatening to put up structures on the suit parcel, immediately reported the matter to Nakuru Police Station and lodged investigations with the Directorate of Criminal Investigations on the 22th May, 2021. The plaintiff further testified that he did not know the 1st defendant and never transacted by way of sale and/or valid transfer of the suit property to the 1st Defendant and therefore his entitlement is illegal and fraudulent. That the Certificate of Lease issued to the 1st defendant is therefore void ab initio and thus the same ought to be nullified and/or cancelled. The plaintiff stated under oath that it was clear the 1st Defendant's certificate of lease was issued on the 31st May, 2021 whereas the plaintiffs certificate of lease was issued on the 3rd December, 2014 therefore no proprietary rights over the suit property would therein pass without his knowledge and/or consent.
PW2 Margaret Njeri Mungai testifies that she is the Managing Director of Muigai Commercial Agencies Limited. Her office is situated on the Stone Plaza along Kenyatta Avenue Nakuru. They do property management and also purchase and sell properties. She is also the Managing Director of Acme Development Limited. She remembers very well that sometimes in the year 2013, Acme Development Ltd acquired property known as Nakuru Municipality Block 17/90. This property comprises 0.8401 Hectares and is situated on the upper side of Milimani Estate Nakuru the side bordering Menengai Forest. They purchased the property from the first registered owner one Mr. Michael Cherop Rotich who was personally known to her as a former Councilor Nakuru Municipality. For purposes of due diligence, he gave them a copy of his certificate of Lease to enable them undertake official search, the search they conducted before the purchase confirmed that he was indeed the first and original owner registered over the property.
He also gave them all the original documents through which he applied for and was allotted the parcel and also gave them a copy of an application letter dated the 10th May 1990 written on his behalf by the then Provincial Commissioner Rift Valley province, Hon. M, Y. Haji to the Commissioner of Lands. The letter on its face showed the approval and recommendation that he be issued with a Letter of Allotment.
Consequently, a Letter of Allotment copy whereof he gave them was issued to him on the 13th November 1991. He also gave them a copy of the map showing the delineation of the parcel in question.
On the 2nd April 2014 they resolved as Directors of Acme Development Ltd to sell the property to Anand Kantilal Shah who had been introduced to them by a property agent as having had interest in acquiring property in the neighborhood. They discussed and agreed on the terms and eventually sold and transferred the property to him. There was nether hindrance or adverse claim on the parcel of land and its title. The transaction went through smoothly and for purposes of its 'transfer, they gave him all the documents showing the proprietorship both current and historical of the parcel of land. They also supplied him with all receipts of payment of land rates and rent both from them and by the previous owner aforesaid. The transaction documents showed that the parcel of land existed as a registered parcel in respect of which lease was granted by the government and therefore the register opened on the 17th February 1992.
The parcels around the area were allocated in 1990 and early 2000 and it is very unlikely that the parcel would have been allocated for the first time in the year 2021.
The 1st defendant Willy Kimagut Rop testified that at all material times relevant to this suit he has been the lawful registered owner of the property known as Nakuru Municipality/ Block 17 / 90 which he acquired following an informal transfer from the previous allottee known as Mr. Kuria Nguri in 1998,
Following the said transfer and the compliance with the conditions thereof including payment of consent to transfer fees, he immediately took vacant possession of the suit property as he waited for the processing of the title in her favour by the 2nd Defendant herein and he has remained in possession to date. Prior to the acquisition of the suit property, he conducted the necessary due diligence which demonstrated that the suit property was lawfully allocated to Mr. Kuria Nguri in 1991 vide a letter of allotment ref: 10274/31/X, dated 7th May, 1991 following his application for the allocation of the same vide a letter dated 16th August, 1990 and received on 17th August, 1990. He further established that Mr. Kuria Nguri duly accepted the allocation of the suit property and also forwarded a banker's cheque of Kshs.122, 030 being the allocation fees vide a letter dated 29th May, 1991 and received on 30th May 1991 which was within the 30 days as directed in the allotment letter. The Department of Lands subsequently issued Mr. Kuria Nguri with a payment receipt for Kshs.122,030 dated 30th May, 1991 as confirmation that the allocation fees had been received within the stipulated timeline.
The suit property at the point of allocation was known as Unsurveyed Plot-Nakuru Municipality but became known as Nakuru Municipality/Block 17/90. After several follow ups with the office of the 2nd Defendant and the Ministry of Lands generally on the status of the registration of the suit property in his name, he was issued with a Lease dated 31st May, 2021 and registered on 16th June, 2021. The 2nd Defendant also issued him with registered a Certificate of Lease dated 16th June, 2021.
Since his registration as the legal proprietor of the suit property the Ministry of Lands and Physical Planning through the 2nd Defendant herein has severally issued him with official searches including the one issued on the 2nd March 2022 and filed herein confirming that the suit property is duly registered in his favour.
He has been in actual peaceful possession and occupation of the suit property until the Plaintiff in the company of armed police officers invaded the suit property and attempted to forcefully evict him and his agents from the suit property.
According to the 1st defendant, the Plaintiff is fraudulently and illegally laying claim over the suit property and interfering with his peaceful occupation and enjoyment of the same premised on purported ownership documents which on their face are fraudulent, questionable and invalid thus incapable of conferring any legal interest over the suit property.
The 1st defendant states that the purported Green Card for the suit property produced by the Plaintiff shows that the interest over the property was allegedly transferred to an entity known as ACME Development Ltd in 2013 by Michael Cherop Rotich. It is thus baffling how the Plaintiff purports to have acquired interest over the suit property directly from Michael Cherop in 2014 who had already been divested of the alleged interest without the alleged transfer to ACME Development Ltd having been cancelled.
The Land Registrar Nakuru, Emma Sitenei testified that the property belonged to one Willy Kimagut Rop, the 1st defendant herein who was registered on the 16th June 2021. She produced the original white card which showed that the registered owner was the 1st defendant. She had the possession of the entire file and the green card therein which showed the 1st defendant as the proprietor. The land registrar produced the letter forwarding the lease to the District Land Registrar dated 8th June, 2021 drawn by the director land Administration. The lease was drawn in the name of Willys Kimagut Rop. The lease was registered on 16th June 2021. The Land registrar did not have any document in the names of the plaintiff.
Mr Ojwang Ololo Patrobes, the Assistant Land Administration Director at the Ministry of Lands at Nairobi testified that according to records at the Ministry of Lands & Physical Planning and contained in Correspondence File Number 313673 Kuria Nguri of Post Office Box 24 Ruiru applied to H.E the President through the Commissioner of Lands for allocation of unsurveyed plot as per an enclosed Part Development Plan within Nakuru Municipality vide a letter dated 16th August. 1990 and received by the Department of Lands on 17th August. 1990.
Through letter ref. no. 102749/31/11 dated 14th March. 1991 the Commissioner of Lands informed Kuria Nguri that his application for allocation of the unsurveyed parcel had been approved by the Government and that a letter of allotment would be issued. Vide letter ref. no. dated 7th May, 1991 the Commissioner of Lands forwarded to Kuria Nguri letter of allotment ref. no. 10274/31/X for unsurveyed plot Nakuru Municipality as per the attached Part Development Plan and special conditions. A letter dated 29th May, 1991 was received by the Ministry of Lands and Physical Planning on 30th May. 1991 by which Kuria Nguri communicated his acceptance of the offer contained in the above stated letter of allotment and also forwarded a banker's cheque for Kshs. 0.
The Ministry of Lands and Physical Planning consequently issued payment receipt no. 36167 dated 30th May. 91 for Kshs. 122,030 to Kuria Nguri. The Commissioner of Lands vide a letter dated 23rd January, 1992 informed the Director of Surveys that Kuria Nguri has formally accepted the offer contained in letter of allotment ref. no.
Vide a letter dated 30th January, 1992 the Director of Surveys informed the Commissioner of Lands that the parcel had been surveyed as measuring 0.8401 Ha and is contained in F/R No. 218/108 where it was represented as Nakuru Municipality Block XVIl/90.
On 23rd February, 1998 the Ministry of Lands received Kuria Nguri's letter dated 20 February, 1998 through which he applied for the consent of the Commissioner of Lands to informally transfer Nakuru Municipality Block 17/90 to Willy Kimagut Rop of Identity Card No. 5592925. Vide letter ref. no. 10274/31/XE dated 18th May 1998 the Commissioner of Lands granted a conditional approval of the application for informal transfer of Nakuru Municipality Block 17/90.
On 20th May, 1998 the Department of Lands received Kuria Nguri's letter of even date forwarding his banker's cheque for KSHS.8,000/- for consent to transfer Nakuru Municipality Block 17/90 subsequent to which he was issued with receipt no. 295729 for the same amount. There is on record an informal transfer for Nakuru Municipality Block 17/90 dated 21st May, 1998 and executed by Kuria Nguri. Willy Kimagut Rop and the Commissioner of Lands.
There is additionally on record letter ref. no. CT 205/vol-62/138 dated 23rd April, 2021 by which the Director of Surveys forwarded a certified copy of the R.I.M to the Director Land Administration.
There is lastly on record a lease data form and a lease over Nakuru Municipality Block 17/90 duly signed on behalf of the Cabinet Secretary, Ministry of Lands on 31st May, 2021 and Willy Kimagut Rop on 2nd June, 2021.
The above lease was forwarded and received by the Nakuru District Land Registrar on 16th June, 2021 following which the lessee paid for its registration on 18th June, 2021 and receipt no. 5003393 issued.
There are no records at the Director Land Administration to support allocation of Nakuru Municipality Block 17/90 to Anand Kantilal Shah or his predecessors in title. The rightful alottee of the parcel of land L.R Nakuru Municipality Block 17/90 is Willy Kimagut Rop who acquired valid interest following the execution of the informal transfer conveyed interest from Kuria Nguri to him.
RIVAL SUBMISSIONS
(a) Plaintiff’s Submissions
The plaintiff submits that he is the lawful owner of all that parcel of land known as Nakuru Municipality Block 17/90. The right to property is provided for under Article 40 of the Constitution of Kenya. Section 24(b) of the Land Registration Act, 2012 provides that the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease.
According to the plaintiff, Section 25 of the said Act provides that the rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject to encumbrances, charges or leases shown on the register and the overriding interests as stated in Section 28 of the Act.
The Plaintiff acquired the subject parcel from Acme Development Limited sometime in the year 2014 for valuable consideration. He conducted his due diligence and established that indeed the Company had acquired a good title from Michael Cherop Rotich, the original allottee of the Government of Kenya, This position was supported by an allotment letter, certificates of lease and evidence of rent and rates payment by the initial owners of the land, Michael Cherop Rotich and Acme Development Company Limited. At the time the due diligence was conducted, there was no evidence that the 1 st Defendant was in possession of the property. The Plaintiff was subsequently issued with a Certificate of Lease on 3rd December 2014 by a well-known Land Registrar at the time, C. O. Birundu, to confirm his ownership of the same.
The plaintiff relies on section 26 of the Land Registration Act, 2012 which provides that the certificate of title issued by the Registrar upon registration, or to a purchase 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 endorsed in the certificate 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; or
b. Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme
The plaintiff relies on the Court of Appeal case of Dr. Joseph Arap Ngok vs Justice Moiio Ole Keiwa & 5 others Civil No. CA60 of 1997 as quoted in the case of church commissioners of Kenya -V- Mumba & another [20251 KEELC 247 (KLR), the Court stated as follows.
"Section 23(1) of the Act gives absolute and indefeasible title to the owner of the property, the title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the title holder under the Act.
The Act is meant to give such sanctity of title, otherwise the whole process of registration of titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy. '
The plaintiff submits that he has produced sufficient evidence to demonstrate that he properly acquired ownership over the subject property while the Defendants have not provided evidence to the contrary.
The plaintiff cites section 116 of the Evidence Act Cap 80 laws of Kenya that clearly provides that when the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
Therefore, the Court is mandated by the Act to consider the certificate of lease issued first to the Plaintiff by the Registrar, who is well known as such, as prima facie evidence that he is the bona fide owner of the subject parcel.
On whether the 1St Defendant's title to the suit was fraudulently acquired, the plaintiff cites the Black's Law Dictionary Edition which defines fraud as a known misrepresentation or known concealment of a material fact made to induce another to act to his or her detriment. The plaintiff submits that it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out and then it should be stated that these acts were done fraudulently. It is also settled law that fraudulent conduct must be distinctly alleged and as distinctly proved, and it is not allowable to leave fraud to be inferred from the facts.
The plaintiff ultimately submits that the particulars of fraud were specifically pleaded and the actions that amounted to fraud were laid out in the pleadings and that the 1st Defendant is nothing but a trespasser according to Section 3 (l) of the Trespass Act which provides that any person who without reasonable excuse enters, remains upon or erects any structure on, or cultivates or tills or grazes stock or permits stock to be on, private land without the consent of the occupier thereof shall be guilty of trespass.
The plaintiff contends that there is a further unexplained inconsistency with the correspondence file in that the lease dated 1st May, 1998 allegedly belonging to the 1st Defendant relates to file number 318673 while the cover page of the correspondence file in favor of the 1st Defendant relating to the same subject parcel has its title number as 313673. There is no evidence that was produced before this Honorable Court to explain the discrepancy by either of the Defendants yet the correspondence file number 313673 relates to a parcel of land in Thika and not in Nakuru as admitted by the 1st defendant and Land Administrator Ojwang Omolo Patrobas. The other parcel file being number 318673 was not availed in court. The 2nd Defendant, in its evidence has maintained that it is actually impossible for one parcel of land to have more than one certificate of lease issued to different people and as the issuers of titles they allowed the existence of two different leases on the same property with all endorsements which was evidence of their participation in the forgery.
The plaintiff cites the case of Chumo Arap Songok vs David Kibiego, CA No. 141 of 2004 (Nakuru) where the Court held that a court of law is not powerless in the face of an illegality and it is duty bound to correct the illegality and to do substantive justice. The plaintiff also relies on the case of Arthi Highway Developers Limited vs West End Butchery Limited & 6 others, Court of Appeal at Nairobi, Civil Appeal No. 246 of 2013 [20151 eKLR, the Court emphasized the position of law that a fraudulent title cannot be allowed to stand and must be cancelled.
In conclusion, the plaintiff submits that t taking into consideration the evidence, law and analysis as elaborated in the submissions hereinabove, the Plaintiff has proved his case and the prayers in the amended Plaint should therefore be allowed as prayed with costs to the Plaintiff.
(b) The 1st Defendants Submissions.
The defendant submits that the Plaintiff has not proved the existence of a valid root title. The 1st defendant contends that it is settled law that in cases where a Court is faced with competing titles over the same parcel of land as is the case herein, a party claiming ownership must prove the existence of a valid root title that is traceable. The defendant contends that the Courts have held that such a party claiming ownership bears the burden of proof and must go beyond his certificate of title and establish that the allocation of the interest in question is not only valid and lawful but is also free from any encumbrance. The defendant relies on the case of Munvu Maina v Hiram Gathina Maina [2013] eKLR where the Court of Appeal held:
"We state that when a registered proprietor's title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is the instrument of title that is in challenoe and the re •stered ro rietor must o be ond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances...
The 1st defendant also relies on the case of Dina Management Limited -vs.- County Government of Mombasa & 5 others z (Petition 8 (EOIO) of2021) 120231 KESC 30 (KLR) where the Supreme Court held: "As was held by the Court of Appeal in Munvu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 120131 where the registered proprietor's root title was under challenge, it was not enough to dangle the instrument of title as. Proof of ownership. It was the instrument that was in challenge and therefore the registered proprietor must go beyond the instrument and prove the legalitv of the title and show that the acquisition was legal formal and free from any encumbrance including interests which would not be noted in the register."
The 1st defendant further relies on Funzi Development Ltd & others vs. Countv Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [20141 e}CR where it was by held by the Court of Appeal as follows:
. a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or give its seal of approval to an illegal or irregularly obtained title."
According to the 1st defendant, the Courts have equally settled the position that title to land such as the disputed parcel herein only comes into existence after issuance of allotment letter, meeting the conditions stated and actual issuance thereafter of the title document in accordance with the provisions under which interest is claimed to be held.
The 1st defendant contends that this Court should on the basis of the Court of Appeal decision in Kenneth Nyaga Myige vs. Austin Kiguta & 2 others [20151 elCR find that the purported letter of allotment dated 13th November, 1991 does not constitute evidence that the Plaintiffs predecessor in title, Michael Cherop Rotich was allocated the disputed property. This is because this purported letter of allotment was not produced as an exhibit but was merely marked as PMF113. In the above cited case of Kenneth Nvaea Mwige (supra), the Court of Appeal held as follows:
"The marking of a document is only for purposes of identification and is not proof 0f the contents of' the document. The reason for marking is that while reading. the record, the parties and the court should be able to identity and know which Was the document before the witness. The marking of a document for identification has no relation to its proof, a document is not proved merely because it has been marked for identification. Once a document has been marked for identification. it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for its authenticity and relevance 10 the {acts ofthe case. Once this foundation is laid, the witness must move the court to have the document produced as an exhibit and be art o the court record. …... "
According to the 1st defendant, the purported letter of allotment dated 13th November, 1991 having been marked for identification instead of being produced as an exhibit, it does not constitute proof or evidence of allocation. On the contrary and as held by the Court of Appeal in the above cited decision m Kenneth Nvaga Mwige (supra), it constitutes hearsay of its contents, is untested and not authenticated and is therefore not evidence of allocation and existence of a valid root title. It has no probative value.
Further, that whilst the alleged letter of allotment dated 13th November, 1991 enjoined Michael Cherop Rotich to communicate acceptance and pay Kshs. 154,030.00 to the Government within 30 days, PWI and PW2 conceded at trial that there was no evidence to show that the said Michael Cherop Rotich accepted and or paid the requisite amount either within thirty (30) days or at all.
An allotment letter, as it has been said time without a number, does not confer any interest to the allottee. It is just but an offer. For this proposition, the I st Defendant relies on the Court of Appeal decision in Dr. Joseph N.K. Arap Ng'ok (supra) where it was held that a letter of allotment neither constitutes a contract between the offeror and the offeree nor confers interest in land.
The Courts have settled that an allottee must comply with the conditions in a letter of allotment, namely, communication of acceptance and payment of the allocation fees within the prescribed period in default of which the offer automatically lapses. A number of decision where this issue has been recalibrated include: -
In Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) KESC 79 (KLR) (22 September 2023) (Judgment) where the Supreme Court of Kenya held: -
"While the allotment letter is dated December 19 1999 Renton Company limited made the specified payments on April 24.2001, one hundred and twenty- seven (127) days from the date of the offer. It is not in question that Renton had not complied with the terms and conditions of the allotment letter. Therefore, the letter ought to have been deemed as lapsed at the time it purported to transfer the same to the appellant."
In Push Enterprises Limited vs. Kenya Airports Authority (Environment & Land Case 721 of 2013) 120241 eKLR where Oguttu Mboya J held:
"Having found and established that the Plaintiff herein did not meet mud/ satisfy the terms and or conditions alluded at the foot of the letter of allotment, it is my finding and holding that the impugned letter of allotment dated 1411 July, 1998; and which is the document that underpins the allocation, lapsed and or expired and was thus rendered redundant and void. In short, once a letter of allotment is neither acted upon nor the terms complied with during its currency, such a letter of allotment cannot birth any certificate of title /grant or at all. i"
The Plaintiff (PWI) who stated that he was aware this letter of allotment enjoined Michael Cherop Rotich to communicate acceptance and pay Kshs. 124,030 to Government within 30 days from 13th November, 1991 in default of which the offer would lapse confirmed in cross examination that he neither had evidence of acceptance nor payment.
The plaintiff submits further that PW2, the director of ACME Development Ltd that allegedly purchased the disputed parcel from Michael Cherop Rotich did not help matters either. She not only conceded that there was no evidence of acceptance and payment within 30 days of issuance of the alleged letter of allotment dated 13th November, 1991 but stated that she was seeing this letter of allotment for the first time in Court. It was the duty of the Plaintiff to tender and place before Court plausible and cogent evidence to show that Michael Cherop Rotich complied with conditions contained in the alleged letter of allotment dated 13th November, 1991. Whilst the alleged letter of allotment dated 13th November, 1991 does not constitute evidence of allocation for want of production, the testimonies of PW 1 and PW2 demonstrate that there is no evidence the allottee either communicated acceptance or made payment within 30 days of its issuance or at all. In the premises and based on the decisions in Torino Enterprises Limited and Push Enterprises Limited (supra), the Court is urged to find that the offer contained in the alleged letter of allotment dated 13 th November, 1991, if any, automatically lapsed on 12th November, 1991 as envisaged therein and that the same could neither birth nor give rise to a title and interested that was allegedly registered in the name of Michael Cherop Rotich on 17th February, 1992 and allegedly transferred to ACME Development Ltd and the Plaintiff on 1 st March, 2013 and 3 rd December, 2014 respectively.
The plaintiff submits that the purported title held by the Plaintiff is liable for defeat and impeachment under Article 40 of the Constitution and section 26 of the Land Registration Act, 2012 because no credible evidence has been led to show that his predecessor in title, namely, Michael Cherop Rotich was either allocated it in accordance with sections 2, 3, 9 and 10 of the repealed Government Lands Act, Cap 280 or that he complied with conditions In the letter of allotment before his alleged registration as the owner. The Plaintiff having failed to demonstrate that Michael Cherop Rotich (from whom his title is traceable to) was properly allocated the disputed parcel and there being no evidence of compliance with conditions if the alleged letter of allotment and survey before the alleged registration, the Court is urged to find that the Plaintiff has failed to establish a valid root title. Plaintiff did not vide his plaint and amended plaint disclose whether he purchased the disputed parcel from Michael Cherop Rotich or ACME Development Ltd. Whilst the Plaintiff (PW1) claimed at paragraph 2 of his witness statement that he acquired the disputed land from Michael Cherop Rotich, his testimony and that of PW2 as well as documents presented to Court suggest that he purchased the disputed parcel from ACME Development Ltd. The contradictory account as to who the Plaintiff purchased the disputed parcel from shows that his narration of facts is inconsistent with that of an Innocent purchaser for value who is expected to know the person he purchased interest from.
The Plaintiff is not a bona fide purchaser for value as he failed to prove the existence of a valid root title. The Plaintiff claimed that his title is traceable from the allocation to Michael Cherop Rotich, but he neither produced a letter of allotment nor evidence of compliance with the imposed conditions that is the foundation of any valid root title. The 1st Defendant on the basis of the Supreme Court decision in Dina Management Ltd (supra) urges the Court to find that the Plaintiff is not an innocent purchaser for value as he failed to establish the existence of a valid allocation of the disputed parcel to Michael Cherop Rotich, from whom his interest is derived.
According to the 1st defendant, the Plaintiff did not lead any credible evidence that speaks to the due diligence that he conducted to establish how Acme Development Ltd allegedly purchased and or obtained registration on 3rd December, 2014.
The 1st defendant submits that the Supreme Court of Kenya in Fanikiwa Limited & 3 others vs. Sirikwa Squatters Group & z17 others [2023] eKLR held that a company can only act through its organs and make decisions by resolutions as follows: -
"It is elementary principle of company law that a company as a distinct legal entity front its promoters, directors or employees can only act through its organs and make decisions by resolutions. No resolution of the company’s board supporting the purported purpose for the surrender was presented in.
PW2 who claimed to be a director of ACME Development Ltd stated at trial that there was no evidence of resolutions that it passed authorizing the acquisition of the disputed parcel from Michael Cherop Rotich. Whilst the resolutions dated 2nd April, 2014 at page 40 of the Plaintiffs trial bundle suggest that ACME Development Ltd authorized the disposition of interest over the suit land, PW2 conceded at trial that details of the director or secretary that allegedly signed these resolutions are not indicated. Further, PW2 confirmed at the trial that there are no resolutions of ACME Development Ltd that specifically give authority to the sale and transfer of 'the disputed parcel to the Plaintiff. ACNE Development Ltd, being a company, the Plaintiff was enjoined to tender in evidence resolutions that authorized it to acquire the disputed parcel from Michael Cherop Rotich. Further, the Plaintiff was equally bound to provide evidence of resolutions that specifically authonzed the sale and transfer of interest to him. None of these were provided by reason of which the 1 st Defendant on authority of the decision in Fanikiwa Limited & 3 others (supra) urges that the Plaintiff has not demonstrated he conducted due diligence to establish whether ACME Development Ltd validly acquired the disputed parcel or had the capacity to sell and fransfer it to him for want of company resolutions.
The 1st defendant cites the case of Said v Shume & 2 others (supra) emphasized that a party claiming interest as a purchaser must demonstrate that he conducted due diligence as follows: -
"The court reaffirmed the law regarding the importance of due diligence in land transactions holding that, '...Lands are not vegetables which are bought from unknown sellers. Land is valuable properties and buyers are expected to make thorough investigations not only on land but also of the owner before the purchase. "
The burden of establishing that due diligence was conducted before purchase rested on the Plaintiff.
On whether the 1st Defendant has established a valid root title that is traceable the 1st defendant submits that this Court has often times stated that when a certificate of title is under challenge, the root of the title must be proved. The 1st Defendant has demonstrated the procedure and root of the title that he followed to obtain valid interest on 16th June, 202 L In particular, and for the avoidance of doubt, the evidence led by the Defendant demonstrates that through a letter dated 16th August, 1990 (1 DEXNo. 9) that was received by the Department of Lands on 17th August, 1990 his predecessor in title, Kuria Nguri applied to the President of the Republic of Kenya for allocation of the disputed parcel, then unsurveyed, but identified by an enclosed PDP (page 32 to 33 of the 1st Defendant's bundle). By letter dated 14th March, 1991 (1 DEX 10), the Commissioner of Lands informed the 1st Defendant's predecessor in title, Kuria Nguri, that the Government had approved his allocation of the disputed parcel and that a letter of allotment would be issued in due course. Vide letter of allotment ref. number 10274/31/X dated 7th May, 1991 (1 DEX 12) the Government allocated the disputed parcel to the 1 st Defendant's predecessor in title, Kuria Nguri who was enjoined to communicate acceptance and pay Kshs. 122,030.00 within 30 days. The 1 st Defendant's predecessor in title not only communicated acceptance to the offer contained in the letter of allotment but also made payment of Kshs. 122,030.00 to the Government on 30th May, 1991. This was within the required 30 days of allocation. In this respect, the 1 st Defendant produced his acceptance letter that was received on 30th May, 1991 (1 DEX13) and the Department of Lands official receipt dated 30th May, 1991 (1 DEX 14) in evidence. Vide a letter dated 20th February, 1998 that was received by the Department of Lands on 23rd of February, 1998 (1 DEX 15), Kuria Nguri applied for the consent of the Commissioner of Lands to transfer allocation of Nakuru Municipality Block 17/90 to the 1 Defendant, The Commissioner of Lands vide a letter dated 18th May, 1998 (DMF116), that the 2nd Defendant through Assistant Director of Lands Administration (2 D W2) produced as 2nd DEX 15, approved the informal transfer of allocation of the suit land from Kuria Nguri subject to: -
a. Payment of approval fees assessed at 2 percent of the consideration;
b. Submission of a completed informal transfer of allocation form; and
c. The 99 years' leasehold term of the allocation to the transferee, the 1 st Defendant commencing 1 st May, 1998.
Through a letter dated 20th May, 1998 (page 42 of the Defendant's trial bundle), the 1 st Defendant's predecessor in title forwarded a banker's cheque for Kshs. 8,000.00 in settlement of the approval fees as envisaged in the Commissioner of Lands' letter dated 18th May, 1998, The 1 st Defendant in this respect produced Depattment of Lands official payment receipt dated 21 st May, 1998 (1 DEX 18) in evidence.
In compliance with the condition as to submission of the informal transfer of allocation, the 1 st Defendant and his predecessor in title, Kuria Nguri submitted a duly completed, executed, assessed, stamped and franked informal transfer of allocation form dated 21 st May, 1998 (1 DEX 19) to the Commissioner of Lands that was duly approved and further executed by the latter. Most importantly, the evidence tendered by the 1st Defendant shows that in pursuance of the informal transfer of allocation, the Commissioner of Lands issued him with letter of allotment ref. number 102749/31/XIII dated 25th May, 1998 (1 DEX 1). The Government vide this letter of allotment offered the 1st Defendant allocation of the suit land for a term of 99 years effective 1st May, 1998. The evidence led by the 1 st Defendant also shows that in compliance with the terms and conditions at the foot of the allotment dated 291 May, 1998, he communicated his acceptance and paid the requisite allocation fees to the Government within the required 30 days. In order to prove this, the Plaintiff produced his acceptance letter and Department of Lands official receipt as his exhibits number 3 and 4 respectively.
The 1st Defendant on the basis of the foregoing urges the Court to find that he has demonstrated the he holds a valid root title that is traceable from the allocation of the disputed parcel to Kuria Nguri vide letter of allotment dated 7th May, 1991 and attendant compliance with conditions of allocation; informal transfer of allocation of the disputed parcel from Kuria Nguri to the 1st Defendant with the approval of the Commissioner of Lands and attendant compliance with conditions precedent thereto; issuance of letter of allotment dated 25th May, 1998 to the 1st Defendant pursuant to the informal transfer of allocation and attendant compliance with conditions therein contained and lastly issuance and registration of the lease and title over the suit land on 18th June, 2021.
In urging the Court to find that the Ist Defendant has established a valid root title that is traceable, reliance is equally placed by the 1st defendant on the decision in Erene vs. Swsscom Logistics Ltd (Civil Appeal E425 of2020) [20241 eKLR KECA 975 (26 July 2024) (judgment) in which the court of Appea1 upheld as valid a transfer of interest over land through an informal transfer of allocation before registration by an allottee that had complied with conditions contained in the letter of allotment. The Court of Appeal in the said decision of Eren rxvs. Swisscom (supra) upheld cancellation of a title allegedly issued decades earlier for lack of evidence that the first allottee/ registered owner had complied with conditions contained in his letter of allotment. In the context of this case, the title purportedly held by the Plaintiff is liable for cancellation for want of evidence of allocation and compliance with conditions of allocation by the first allottee, Michael Cherop Rotich, It is immaterial that title was first issued to the said allottee, Michael Cherop Rotich in on 17th February, 1992 as purported while the 1st Defendant title was issued on 18th June, 2021.
The 1stv defendant contends that It was lawful for the Commissioner of Lands to issue the 1st Defendant with a new letter of allotment dated 25th May, 1998 in place of the earlier letter of allotment issued to Kuria Nguri after the informal transfer of allocation as the transferor (Kuria Nguri) had not obtained registration even after perfection of an allotment. The 1st Defendant relies on the Supreme Court decision in Torino Enterprises Ltd vs. Attornev General [2023]KESC 79 (KLR) for this proposition.
The 2nd Defendant, who is the custodian of land records at trial called two witnesses, namely Ms. Emma Sitienei and Mr. Ojwang Omollo Patroba, a Land Registrar at Nakuru District Registry (2 DWI) and Assistant Director of Land Administration (2 DW2), respectively.
The evidence led 2nd DW2 who produced the 16 documents contained in the 2nd Defendant's list and bundle of documents dated 28th February, 2023 as 2nd DEX 8 to 2nd DEX 26 show that the suit land was first allocated to Kuria Nguri on 7th May, 1991 vide letter of allotment of even date (2 DEX 11) who complied with conditions as to acceptance (2 DEX 12) and payment (2 DEX 13). The evidence of 2nd DW2 further demonstrates that the Commissioner of Lands informed the Director of Surveys (2 DEX 14) that Kuria Nguri had perfected the allotment consequent to which the unsurveyed parcel that was allocated was surveyed as Nakuru Municipality Block 17/90 as per registration block/ R.I.M sheet dated 18th May, 1998 (2 DEX15).
Further, the evidence of the 2nd Defendant through 2nd DW2 shows that upon allocation, Kuria Nguri applied for and obtained the consent of the Commissioner of Lands to informally transfer allocation of the suit land to the 1st Defendant according to 2nd DEX Numbers 16, 17, 18 and 19. The 2nd DW2's evidence also shows that the Commissioner of Lands upon submission of the informal transfer form between Kuria Nguri and the 1st Defendant issued the latter with a letter of allotment dated 25th May, 1998 that was succeeded by his acceptance and payment on 2nd June, 1998. The evidence led by the 2nd Defendant further demonstrate that vide a letter dated 23rd April, 2021 (2 DEX 20), the Director of Surveys forwarded to the Director, Land Administration the registry index map to facilitate preparation of a lease and registration in favour of the 1 st Defendant. According to the 2nd Defendant (2nd DW2), it prepared and issued a lease over the suit land to the 1st Defendant and that upon execution, the same was forwarded to Nakuru Land Registry for registration as per its exhibits number 21, 22 and 23, This, 2nd DW2 stated gave rise to the certificate of lease held by the 1st Defendant that was registered on 16th June, 2021. Lastly, 2 DW2 was emphatic that there is nothing in Government records to show that the disputed is was either allocated to the Plaintiff or his alleged predecessor(s) in title.
The District Land Registrar (2nd DWI) produced in evidence a letter dated 8th June, 2021 (2 DEX 2) vide which the lease over the suit land in the name of the Ist Defendant was forwarded to her office by the Director Land Administration for registration. The 2nd DWI further produced in evidence a duly registered lease (2 DEX 4) and the original green card (2 DEX 6) which she stated shows that the 1 st Defendant is the valid registered owner of the parcel in dispute. The 2nd DWI also stated that according to records held by the 2nd Defendant, the disputed parcel belongs to the 1st Defendant. Further, 2 DWI stated that the documents filed by the Plaintiff purporting that he is the owner of the disputed parcel are not in custody of the 2nd Defendant and could therefore not be authenticated.
ANALYSIS AND DETERMINATION
There is no dispute that the plaintiffs and 1st defendant have parallel titles in respect of the suit property, however, the 2nd defendant has disputed the plaintiffs title contending that they do not have those record for the plaintiff in their office.
The issue in dispute is which title is genuine and has its roots in a formal process of acquisition. The plaintiff produced a certificate of official search dated 20th May 2021 that indicated that he was the registered proprietor of the suit property on ----. Moreover, he produced a green card whose import is that the property was registered in the names of Michael Cherop Rotich on the 17th February 1992 and a certificate of lease was issued on 17th March 1992. The property was transferred to ACME Development Ltd and registered in their names on 1st March 2013 and a certificate of lease issued on the same date. On the 3rd December 2014 the property was transferred to Anand Kantilal Shah and a certificate of lease was issued on the same date. A restriction was entered on the 19th June 2018 by Sheth Wathigo advocate on behalf of the registered owners. The plaintiff produced the certificate of lease dated 3rd December 2014 sometimes in June 2021, the plaintiff reported to the police on the trespass on the land by the 1st defendant and asked for investigations by the D.C.I.
The Kenya Police Service wrote to the principal secretary Ministry of Lands and Physical planning asking for the green card, official search and all transfer documents to the current owners.
The plaintiff produced a copy of the OB as evidence that he reported encroachment on his parcel of land. the white card was made as PMFI6. He produced the lease of the property to Willy Kimagut as PEX7. The letter of allotment was marked as PMFI 13 and the board resolution has marked as PMFI 14. The plaintiff stated that the property was in the names of Acme Development Ltd before he purchased the same from the said Acme Development Ltd. the plaintiff claimed that he purchased the property for Acne Development Ltd but did not have documents of payment. He did not have the original lease. He did not buy the property from Michael Cherop Rotich but Acme Ltd. He is not aware of a rate clearance certificates and did not have any. He does not have a copy of tittle issued to Acme Development Ltd. He does not remember what was in the file because it is 12 years ago.
The plaintiff on cross examination started that he did not have any application for allocation of land by Mr Michael Cherop Rotich. According to the plaintiff Michael Cherop Rotich was to accept within 30 days. There is no acceptance letter.
The 1st defendant on his part produced a letter dated 25th May 1998 by the Commissioner of land to the 1st defendant for informal transfer of the suit property. The letter of allotment produced as 1st DEX2 was dated 25th May 1998 wherein the suit property was allocated to the 1st defendant. The acceptance was made on 2nd June 1998 by the 1st defendant. The 1st defendant paid a sum of kshs119,630 On 2nd June 1998. A lease was executed on 31st May 2021. The lessee Willy Kimagut Rop appeared before Shikoli Ashivaka advocate and executed the lease on 2n June 2021. The lease was registered on 16th June 2021. A certificate of lease was issued on 16th June 2021. A certificate of search issued on 2nd March 2022 showed that the property was registered in the names of Willy Kimagut Rop. The 1st defendant produced a letter by Kuria Nguri to his excellency the President dated 15th August 1990 applying for the suit property of land for allocation on the 7th May 1991, the Commissioner of Lands responded to Kuria Nguri to his excellency to president dated 15th August 1990 applying for the suit property of land for allocation on the 7th May 1991 the Commissioner of Lands responded to Kuria Nguri informing him that his application had been approved for the suit property.
An allotment letter was issued to Kuria Nguri on 7th May 1991. He was required to pay Kshs122030 within 30 days. The Kshs122,030 was paid on 25/3/1991. A government report was issued on the said date.
On the 20th February 1998, Kuria Nguri applied for informal transfer of plot to the 1st defendant which consent was granted on 18th may 1998. The 2nd defendant produced the lease instrument in favour of Willy Kimagut Rop which was duly executed and registered. The white card was also produced by the 2nd defendant that demonstrated that the 1st defendant was registered on 16/6/2020.
It is trite law that where there are competing titles the court should review the evidence on record and find out the root of each title.
There are several court decisions on this issue as eloquently submitted by Mr Rapando counsel for the 1st defendant.
In the case of Munvu Maina v Hiram Gathina Maina [2013] eKLR where the Court of Appeal held:
"We state that when a registered proprietor's title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is the instrument of title that is in challenoe and the re •stered ro rietor must o be ond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances...
The 1st defendant also relies on the case of Dina Management Limited -vs.- County Government of Mombasa & 5 others z (Petition 8 (EOIO) of2021) 120231 KESC 30 (KLR) where the Supreme Court held: "As was held by the Court of Appeal in Munvu Maina v Hiram Gathiha Maina Civil Appeal No 239 of 2009 120131 where the registered proprietor's root title was under challenge, it was not enough to dangle the instrument of title as. Proof of ownership. It was the instrument that was in challenge and therefore the registered proprietor must go beyond the instrument and prove the legalitv of the title and show that the acquisition was legal formal and free from any encumbrance including interests which would not be noted in the register."
The 1st defendant further relies on Funzi Development Ltd & others vs. Countv Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [20141 e}CR where it was by held by the Court of Appeal as follows:
. a registered proprietor acquires an absolute and indefeasible title if and only if the allocation was legal, proper and regular. A court of law cannot on the basis of indefeasibility of title sanction an illegality or give its seal of approval to an illegal or irregularly obtained title."
In the matter before me, I do find that the parcel of land was Government land that was provided for by the Government Lands Act Cap 280 Laws of Kenya repealed. Section 3 of the Act provided for provided for alienation of unalienated government land. Alienation then began with an application to the president, approval, letter of allotment and acceptance. In this case the letter of allotment was not produced and there was no acceptance. In Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) KESC 79 (KLR) (22 September 2023) (Judgment) where the Supreme Court of Kenya held: -
"While the allotment letter is dated December 19 1999 Renton Company limited made the specified payments on April 24.2001, one hundred and twenty- seven (127) days from the date of the offer. It is not in question that Renton had not complied with the terms and conditions of the allotment letter. Therefore, the letter ought to have been deemed as lapsed at the time it purported to transfer the same to the appellant."
In Push Enterprises Limited vs. Kenya Airports Authority (Environment & Land Case 721 of 2013) 120241 eKLR where my brother Judge Oguttu Mboya held:
"Having found and established that the Plaintiff herein did not meet mud/ satisfy the terms and or conditions alluded at the foot of the letter of allotment, it is my finding and holding that the impugned letter of allotment dated 1411 July, 1998; and which is the document that underpins the allocation, lapsed and or expired and was thus rendered redundant and void. In short, once a letter of allotment is neither acted upon nor the terms complied with during its currency, such a letter of allotment cannot birth any certificate of title /grant or at all. i"
I do find that the plaintiff title finds root in the letter of allotment issued to Michel Cherop Rotich which was not produced. There is no evidence that Michael Cherop Rotich applied for allocation of the parcel of land. Moreover, the letter dated 10th May 1990 by the late Yusuff Haji did not enclose the application for the plot to the then President of the Republic of Kenya. Moreover, other than the letter by Yusuff Haji dated 10th May 1990 to the Commissioner of Lands and the allotment letter to Michael Cherop Rotich dated 13/11/ 1991, which was not produced there was no acceptance of the offer made through letter of allotment. There is no evidence that the stand premium and other charges were paid as required by law. It is not clear how Michael Cherop Rotich was registered as proprietor on 17th February 1992 without executing the lease document. It is noteworthy that the assistant Director of Land Administration a Mr. Ojwang Omolo Patroba stated that the documents produced by the plaintiffs were not in their possession.
Moreover, Emma Sitienei Too also testified that the documents in their possession did not support the plaintiff case.
This court finds that the documents produced by the County Land Registrar and the Assistant Director of Land Administration indicate that the suit property was initially Government Land. the same was applied for by Kuria Ngura to the then President of the Republic of Kenya. The president approved the application and he was issued with the allotment letter. Paid the prerequisite fees and later transferred the plot to Willy Kimagut Rop. The lease documents was prepared in respect of Willy Kimagut Rop and registered on 16th June 2021. A certificate of lease was issued on 16th June 2023. I do find that the title document of the 1st defendant is rooted on the formal process of acquisition. The plaintiff title is not rooted on the known formal process of acquisition. I do find that the plaintiff has failed to prove his case on a balance of probabilities and the suit is dismissed with costs.
On the other hand the 1st defendant has proved that he procedurally and legally acquired the suit property and therefore I grant judgment in terms of a permanent injunction restraining the Plaintiff herein, Anand Kantilal Shah whether by himself, agents and or servants or otherwise howsoever acting on his instructions from trespassing, occupying, remaining upon, charging, leasing, disposing of, or in any manner howsoever dealing or interfering with the 1st Defendant's, Willy Kimagut Rop right as to ownership, quiet and peaceful possession and utilization of property known Nakuru Municipality Block 17/90 (the suit Property) which order should be enforced by the Officer Commanding Station Nakuru Central Police Station..
The court further grants a permanent injunction against Anand Kantilal Shah, prohibiting himself, servants or agents from entering upon, remaining upon, occupying or in any manner howsoever interfering with the Plaintiff in the counterclaim Willy Kimagut Rop's ownership, occupation, quite possession and utilization of the property known as Nakuru Municipality Block 17/90 (the suit property), in default, an eviction order do issue and which order should be enforced by the Officer Commanding Station, Nakuru Central Police Station or any other nearby police station.
The court further grants a mandatory injunction compelling the 2nd Defendant, the Chief Land Registrar to annul and/or revoke any purported title documents held by the Plaintiff namely Anand Kantilal Shah relating to property known as Nakuru Municipality Block 17/90. Orders accordingly.