THE REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC NO 748 OF 2013
CATHERINE KIBUI MBURE GITHERE and
JAMES GITHERE MBURU (As Administrators of the Estate of DAVID GITHERE MBURU (Deceased))…………..1ST PLAINTIFF
GEORGE JONATHAN MAARA…………………….2ND PLAINTIFF
VERSUS
JOHN PETER KAMAU RUHANGI………………1ST DEFENDANT
GUMCHEM KENYA LIMITED……………………2ND DEFENDANT
PARAMOUNT UNIVERSAL BANK LIMITED…3RD DEFENDANT
INTEGRA AUCTIONEERING (K) COMPANY…4TH DEFENDANT
NAIROBI CITY COUNTY………………………….5TH DEFENDANT
WANDERJOY PARTY WORLD LIMITED……..6TH DEFENDANT
ISAAC MAINA WANDERE………………………..7TH DEFENDANT
JUDGMENT
HISTORY
1. The dispute herein traverses three suits namely ELC 754 OF 2013, ELC 748 OF 2013 and 870 OF 2016. The files ELC 754 OF 2013 and ELC 870 of 2016 were apparently consolidated on 13.10.2020, then on 18.11.2020, the aforementioned 2 files were consolidated with case ELC 748 OF 2013, of which the latter became the lead suit. Thus for purposes of these proceedings, the parties shall be designated as captured in case no ELC 748 OF 2013 as follows;
⮚ (1st plaintiff-Githere) Catherine Kibui Mburu Githere,
⮚ (2nd plaintiff- Maara) George Jonathan Maara,
⮚ (1st defendant-Ruhangi) John Peter Kamau Ruhangi,
⮚ (2nd defendant-Ruhangi’s Company) Gumchem Kenya Limited,
⮚ (3rd defendant- The Bank) Paramount Universal Bank Limited,
⮚ (4th defendant-The Auctioneers) Integral Auctioneering Company,
⮚ (5th defendant-The County) Nairobi City County,
⮚ (6th defendant- Wandere’s Company) WonderJoy Party World Limited,
⮚ (7th defendant- Wandere) Isaac Maina Wandere”.
2. At the heart of the dispute is parcel LR No. 27/326 measuring approximately 0.8017 hectares (2 acres) situated in Ridgeways Estate (the suit property) which is being claimed by all the parties herein. There is no controversy that the suit property came about as a result of subdivision of the original LR No. 27/8 measuring 21 acres which was owned by the plaintiffs and the 2nd defendant, an entity whose director is the 1st defendant. The suit property was apparently surrendered to the City Council of Nairobi as a public utility plot as a condition for the subdivision of parcel LR 27/8.
3. In summary plaintiff’s case is that the 1st and 2nd defendants fraudulently acquired title to the suit property and proceeded to charge the same to the 3rd defendant of which the said 1st and 2nd defendants failed to service the loan and the property was put up for sale in a public auction.
4. For the 1st and 2nd defendants they contend that after the suit property was surrendered to the City Council of Nairobi the 1st defendant applied for the same and it was reallocated to the 1st defendant. For the 3rd and 4th defendants, they contend that the 1st defendant is the lawful registered owner of the suit property which was charged in their favour as they had advanced a banking facility to the 1st defendant. That the 1st defendant defaulted in servicing the loan and therefore the 3rd defendant sought to realize the security.
5. The 5th defendant contends that the suit property was surrendered for public purpose and they were not a party to the transactions in which the said property was transferred to the 1st defendant thus the title of the 1st and 2nd defendant is fraudulent.
6. As for the 6th and 7th defendants, they are claiming the suit land on the basis of a Temporary Occupation Licence (TOL) granted to them by the defunct City Council of Nairobi.
7. These assorted claims are the one which birthed the suits 748 of 2013, 754 of 2013 and 870 of 2016.
THE PLEADINGS
Case No. 754 of 2013
8. This suit was filed on 27/6/2013 by Wonderjoy Party World Ltd v John Peter Kamau Ruhangi (1st Defendant), Mr. Kubai T/A Integra Auctioneering (K) Company (2nd Defendant). The plaintiff contends that it was registered as proprietor as lessee of the suit parcel of which it commenced occupation in year 2008. That thereafter, the plaintiff approached the City Council of Nairobi with a view to regularize its occupation of the suit land, and on 7/9/2011 the City Council granted them a lease term of 25 years with effect from 1st January 2008. That the plaintiff went ahead to develop the property and was paying annual rent to the city Council amounting to 38,000. However, on 24.6.2013, 1st defendant caused the 2nd defendant to advertise in the Daily Nation of 24.6.2013 the auction of the suit property through public auction which was to take place on 27.6.2013.
9. The plaintiff therefore sought judgment against the defendants as follows;
“a) A declaration that the plaintiff is the owner/ proprietor as lessee from the City Council of Nairobi of all that piece or parcel of land known as LR No. 27/326 originally known as Parcel No. 27/8/26 situated off Kiambu Road, Ridgeways, Nairobi.
b) A permanent injunction restraining the defendants whether by themselves and/or by their servants, agents or otherwise howsoever from conducting the sale of all that piece or parcel of land known as LR No. 27/326 originally known as Parcel No. 27/8/26 originally known as Parcel No. 27/8/26 situated off Kiambu Road, Ridgeways, Nairobi by public auction or otherwise on 27th June 2013 as threatened or at any other time and from otherwise disposing of, alienating, transferring and/or interfering with the plaintiff’s interest in the suit property.
c) General damages.
d) Costs of this suit together with interest thereon at such rate and for such period of time as this honourable court may deem fit to grant.
e) Any other or further relief that this honourable court might deem fit to grant”.
10. No further pleadings were filed in the said case.
Case No. 748 of 2013
11. Although this case was registered in year 2013 and the court proceedings also commenced in year 2013, the amended plaint of the plaintiffs filed on 11.11.2019 has no original date.
The parties in this suit are; Catherine Kibui Mburu Githere, James Githere Mburu (1st plaintiff) and George Jonathan Maara (2nd plaintiff) v John Peter Kamau Ruhangi (1st Defendant), Gumchem Kenya Limited (2nd defendant), Paramount Universal Bank Limited (3rd defendant), Intragra Auctioneering (K) Company (4th defendant), Nairobi City County (5th defendant), Wanderjoy Party World Limited (6th defendant) and Isaac Maina Wandere (7th defendant).
12. The plaintiffs contend that them and the 2nd defendant are the registered owners of the suit parcel having acquired it through an indenture of 28.1.2002. They contend that in 1995 they purchased the land original number 27/8/26 from Bonnaccord Limited and registered the said indenture on 30.1.2002. That in year 2008 the plaintiffs had an interest of selling 2 acres of the suit land and that the 1st defendant was desirous of purchasing the same but the sale aborted. Thus the property never changed hands and therefore the plaintiffs never transferred their rights as the registered proprietors of the suit land to the 1st defendant or any other third party.
13. The plaintiffs were therefore surprised to find that the land had been advertised for sale in the newspapers on 24.6.2013. upon inquiry the plaintiffs discovered that the 1st defendant had fraudulently forged documents to transfer the property to himself and had also taken a loan from the 3rd defendant of which the 3rd defendant was intending to sell the property.
14. The plaintiffs aver that in year 2002, themselves and 2nd defendant subdivided parcel 27/326 original number 27/8/26 into plots of which they allowed 1st and 2nd defendants to temporarily occupy the suit property. However in year 2013, the plaintiffs came to learn that the 6th and 7th defendants had entered into a lease agreement with the 5th defendant in regard to the suit property which the plaintiff terms as irregular, illegal and unlawful. They also contend that the 5th, 6th and 7th defendants colluded to fraudulently, unlawfully and irregularly change ownership of the suit property to the 6th defendant of which the 6th and 7th defendants had taken possession of the suit property illegally, irregularly and unlawfully.
15. The plaintiffs seek the following orders;
“a) A permanent injunction restraining the defendants either by themselves, their agents, servants, officers or nominees or any one claiming under them from selling, transferring, assigning, alienating, disposing taking possession and/or in any way interfering with all that parcel of land known as Land Reference Number 27/326 original number 27/8/26.
b) A declaration that the plaintiffs herein are the legal owners of all that property known as Land Reference Number 27/326 original number 27/8/26 and own 2/3 of the said property whereas the 2nd defendant owns 1/3 of the property.
c) A declaration that the transfer and/or registration of the Land Reference Number 27/326 original number 27/8/26 in the name of the 1st defendant is illegal and irregular null and void, as the same is based on a forged deed of conveyance dated 8th July 2012.
d) An order for rectification of the title document for Land Reference Number 27/326 original number 27/8/2 to reflect the owners of the property as plaintiffs and the 2nd defendant.
e) A declaration that the lease granted by the 5th defendants to the 6th defendant is illegal, irregular and unlawful.
f) A permanent injunction restricting the 5th, 6th and 7th defendants from dealing in any way or interfering with the plaintiffs quiet possession of all that property known as Land Reference Number 27/326 original number 27/8/26.
g) An order for eviction against the 5th, 6th and 7th defendants.
h) An order for mesne profits against the 5th, 6th and 7th defendants from 2011 to date of entry of judgment.
i) An order for general damages for trespass against the 5th, 6th and 7th defendants from July 2011.
j) An order for punitive damages against defendants.
k) Costs and interest of this suit.
l) Any other or further relief that the honourable court may deem just and expedient”
16. The 1st and 2nd defendants opposed the suit vide their statement of defence dated 15.10.2021. They aver that at all material times in 1994 a company known as Bon Accord Ltd owned parcel LR No. 27/8 measuring 21 acres. That the 1st defendant through his company which is the 2nd defendant purchased the said land together with the plaintiffs herein. They then set out to subdivide the land of which the approvals for subdivision required a surrender of some portion of the land to the City Council of Nairobi to be used for public utility. The surrendered land was 2 acres which came to be the suit parcel LR 27/326. The 1st defendant contends that in year 2000 he applied for allocation of the suit land and he got the land. He was to later charge the same to the 3rd defendant where he was advanced some money. He seeks the dismissal of plaintiff’s case.
17. The 3rd and 4th defendants opposed the suit vide their statement of defence dated 15.6.2020. They contend that the suit property is registered in the name of the 1st defendant to whom the bank had advanced a facility. That the 1st defendant defaulted in repaying the facility hence the 3rd defendant embarked on realizing the security by selling the suit property through an auction.
18. The 5th defendant opposed the suit through a statement of defence and a counterclaim dated 5.8.2020. It contends that its predecessor that is the Nairobi City Council gave approval for the subdivision of parcel LR 27/8 on condition that a portion of 0.8 hectares was to be surrendered to it for public purpose and it became parcel 27/326 (the suit parcel). The 5th defendant in its counterclaim contends that there was fraud in the allocation of the suit property beginning with the indenture of conveyance registered by the plaintiffs and the 2nd defendant, continuing with the transfer registered by the 3rd defendant and concluding with the charge. The 5th defendant seeks for the restoration of the suit land in its favour.
19. In its counterclaim, the 5th defendant seeks the following orders;
“a) The suit instituted against the 5th defendant/counterclaimant be dismissed in its entirety.
b) A declaration be issued recognising it as the legal owner of the parcel of Land Reference Number 27/326.
c) A declaration that any transfers, conveyances, charges or acquisition of interest in the parcel of Land Reference Number 27/326 by the plaintiff, or the 1st, 2nd, 3rd and 4th defendants was illegal, irregular and void ab initio.
d) An order be made for the cancellation of any title document or indenture of conveyance or any entries made at the Lands Registry stating that the plaintiffs or the 1st-4th defendants have any interest in the parcel of Land Reference Number 27/326.
e) An order be made for the rectification of the title document and entries at the Land Registry to be corrected and reflect the position that the 5th defendant/counterclaim is the rightful owner of the parcel Land Reference Number 27/326.
f) Costs of this suit”.
20. During the pretrial exercise, 6th and 7th defendants identified their pleading as the statement of defence and counterclaim dated 10.3.2020 at page A-N in their bundle. This pleading however does not have a counterclaim. They argue that the suit parcel was part of the larger parcel 27/8 which was acquired by the plaintiffs and the 2nd defendants sometime in 1995. That the three owners of the land applied for its subdivision on 20.12.1999 of which the condition for approval of the subdivision was the surrender of the suit parcel. That the 6th defendant bought four (4) of some of the resultant subdivisions of parcel 27/8 namely; LR 28/323, 324, 325 and 329 of which the said plot are adjacent to the suit plot. That the 6th defendant applied for and was granted a Temporary Occupation License (TOL) from the 5th defendant on 7.9.2011 to construct car sheds on the suit property. He also got a formal lease from the 5th defendant. However, the land was advertised for sale in the Daily Nation prompting the 6th and 7th defendants to file case No. ELC 754 of 2013 to stop the sale.
21. The 6th and 7th defendants seeks orders for the dismissal of plaintiffs case and that they be declared as the legal lessees of the suit property.
Case No. 870 of 2016
22. This suit was filed by John Kamau Ruhangi as 1st plaintiff, George Jonathan Maara as 2nd plaintiff and David Mburu Githere as 3rd plaintiff v Isaac Maina Wandere (1st defendant), Wonderjoy Party World Gardens Ltd (2nd defendant) and Nairobi City County (3rd defendant) through a plaint dated 26.7.2016 . The plaintiffs contend that they are the registered owners of the suit parcel LR 27/326. That after purchasing their property which was 21 acres, they subdivided the same into parcels measuring 0.5 acres of which they sold a portion to the 2nd defendant while a further portion was surrendered to the Nairobi City Council as a condition precedent for approval of the subdivision. That the 2nd defendant requested the plaintiffs to use an adjacent portion of land as a parking bay of which the plaintiffs on friendly basis obliged. However, when the plaintiffs issued a notice for the 1st and 2nd defendants to vacate the land, they realised that the 3rd defendant had fraudulently and unlawfully changed ownership of the suit property from the plaintiffs to the 1st and 2nd defendants.
23. The plaintiffs therefore sought judgment in the following terms;
“a) A declaration that the plaintiffs are entitled to exclusive and unimpeded right of possession and occupation of the property known as Land Reference No. 27/326 (Original No. 27/8/26).
b) An order of permanent injunction restraining the defendants either by themselves, their employees, servants and/or agents from trespassing on, continuing being in occupation, purporting to sell, erecting structures and/or in any other manner interfering with the plaintiffs quiet enjoyment and possession of Land Reference No. 27/326 (Original No. 27/8/26)
c) An order of eviction as against the defendants, their employees, servants and/or agents from the property known as Land Reference No. 27/326 (Original No. 27/8/26)
d) An order revoking and/or cancelation of the Temporary Occupational License issued by the 3rd defendant to the 1st and 2nd defendants.
e) General damages.
f) Special damages.
g) Mesne profits.
h) Costs and interests of the suit.
i) Further or other relief as may be just and expedient in the circumstances of the case”.
CASE MANAGEMENT
24. The suit Elc 748 of 2013 was filed contemporaneously with an application for injunction dated 26.6.2013. The said application was determined via a ruling delivered on 11.6.2019 ( Judge Eboso sitting) where the court decried the manner in which the matter was being prosecuted in the following words;
“It ought to prick the conscience of the litigants, the advocates and the judges involved in this matter that an application for interim injunctive orders has taken six years to be disposed. In my view, this is inordinately long. I therefore direct the parties to file and exchange their bound, paginated and indexed bundles containing pleadings, witness statements and evidentiary documents within 60 days to facilitate allocation of a hearing date for the main suit.”
25. Apparently, some of the parties, particularly the plaintiffs as well as the 1st and 2nd defendants remained nonchalant to the above observations of the court whereby almost five years down the line from 20.9.2018 when Pre-Trial directions were given to 7.2.2023 when the matter was scheduled for hearing, the plaintiffs had not complied with pre-trial directions while 1st and 2nd defendants were seeking leave to file more documents. This culminated in the delivery of a ruling delivered on 7.2.2023 (Judge Mbugua sitting) in which the case of the plaintiffs was dismissed. The said ruling captures minute details of the litigation history whereby at paragraph 11, the court stated thus; “It is not lost to this court that this case is about 10 years old. Coupled with the endless pretrial directions given in the files, I find that no party should be allowed to file documents at this stage”. It is noted that even as the court was delivering a ruling on 7.2.2023, the matter was scheduled for hearing on the same date, and the case indeed proceeded.
26. It is further noted that the 1st plaintiff passed on before the actual hearing of the case, he was substituted with his legal representative, one Catherine Kibui Mburu.
27. Another notable observation is that file ELC 748 of 2013 is quite voluminous both in terms of the documents filed as well as the hand written proceedings. In that regard and in order to preserve the sanctity of the records, the court has separated the hand written notes from the rest of the documents designating the handwritten proceedings as Volume I while the other documents are in Volume II.
THE EVIDENCE
Case for the 5th Defendant
28. The hearing commenced with the case of the 5th defendant which was advanced by DWI, ISAAC NYOIKE. He introduced himself as the Chief Valuer of the County Government of Nairobi (5th defendant) and he adopted his witness statement dated 5.8.2020 as his evidence. He also produced the 4 documents in their list dated 5.8.2020 as their D- exhibits 1-4.
29. The evidence of Dw1 is that on 21.1.2000, their Town Planning Committee held a meeting in which they approved the subdivision of parcel 27/8 on condition that a portion thereof measuring 0.8 hectares would be surrendered to it for public purpose. A similar approval was given on 11.2.2000, by the Ministry of Lands of which the surrendered portion became parcel 27/326 ( the suit parcel).
30. Dw1 asserted that the 5th defendant is the rightful owner of the suit property, thus their counterclaim should be allowed. He contends that the claims of the plaintiffs as well as 1st -4th defendants are fraudulent, void and illegal beginning with the indenture of conveyance registered by the plaintiffs and the 2nd defendant continuing with the transfer registered by the 3rd defendant, and that none of them has a good title.
31. On cross examination by counsel for the 1st and 2nd defendants, Dw1 stated that he is familiar with parcel 27/8 which was owned by Bon-Accord, that the land was sold to 3 persons namely the plaintiffs and the 2nd defendant. That the parcel was subdivided into 21 plots with approval from the City Council of Nairobi on condition that two acres were to be surrendered to the Council of Nairobi as public land to be used as a nursery school. However, Dw1 stated that he has no evidence of the surrender, similarly, he has no evidence that the land was surrendered back to the previous owners. He has also not come across any one applying for the suit land.
32. Dw1 stated that from their records, the suit property LR. 27/326 appears in their records as belonging to the 5th defendant’s predecessor (Nairobi City Council), but the registration records to that effect were not surrendered to them.
33. Referred to pages 49 & 52 and of the Trial bundle of the 1st and 2nd defendants, Dw1 identified the document as a rate payment demands. That at page 13 of the same bundle is a copy of the indenture for Bonaccord, but he is aware that they sold their interest in the suit land. Dw1 is aware of the document at page 20 of the same bundle, (a notification of approval of development permission that is subdivision of L.R. No. 27/8) as he also has the said document. He also admits to having seen the document at page 25 of the same bundle (subdivision certificate for L.R.No. 27/8) from the 5th defendant and that the same was to be sent to 1st defendant.
34. However, Dw1 had not seen the documents at page 22-24, as well as those at pages 27-30 of the same bundle. At page 48 of the same bundle, he can see a rate clearance certificate, which is given when rates are cleared, but it is not necessarily requested for when there is a sale. For the document at page 43-47 of the same bundle, Dw1 can see that the same (a deed of conveyance) was registered on 28.7.2011 which conveyed title to 1st defendant.
35. Dw1 avers that he wrote to the National Land Commission to state that the land was transferred wrongfully, but he can’t remember when the 5th defendant came to learn about the transfer, though it was around 2016. He denies that by year 2013, the 5th defendant was aware that the land was registered in favour of the 1st defendant.
36. Dw1 is aware that the 6th and 7th defendant are claiming a leasehold interest in the same property. He avers that around year 2011-2012, the Nairobi City Council issued a Temporary Occupational Licence (T.O.L) to 6th defendant and thereafter, the council intended to enter into a lease agreement with the same party for 25 years. However, he has no application made by the 6th and 7th defendants for the allocation of the plot.
37. Referred to the documents at pages 75-76 of the Trial bundle of the 6th and 7th defendants, Dw1 stated that the National Land Commission had confirmed that there was a subdivision in 1988, where a conditional approval was given by the Commissioner of lands, that on 14.11.2001, the city council wrote to the Commissioner of Lands asking for the release of 8 plots to the 1st defendant including the school plot and that on 5.12.2001, the Commissioner of Lands gave a no objection notice to the 1st defendant on condition that the land remains a nursery school. Thus as per the said letter, the land was given back to the 1st defendant. That still in the said letter, the Commissioner was stating that it was not aware of the issuance of the temporary licence which had no legal basis.
38. On cross examination by counsel for the plaintiffs in case Elc 870 of 2016, Dw1 reiterated that the land in question was reserved as public land to be used as a nursery school, adding that his letter of 28.1.2000 was a notification of subdivision. On the T.O.L., Dw1 assumed that there was an application to that effect, though he does not have it. He is aware that for the 5th defendant to issue a T.O.L, the land must belong to the county, the land is then inspected and a report is done and the council would determine if the land was needed for immediate use, of which if the need is not immediate, the temporary licence is considered administratively as was the practice then. Since it is an administrative process, the T.O.L is not registered and it runs from one month to infinity. Thus the user continues to use the land as long as it is not needed.
39. That in the case of the 6th and 7th defendant, Dw1 authored the letter of 20.2.2020, and that he must have seen the T.O.L., adding that timelines in a T.O.L are normally never defined. That the T.O.L was issued in year 2008 for parcel L.R.27/326. of which the land was public land.
40. He avers that the T.O.L, was not issued for use as a nursery school and there has been no application for change of user. The 6th and 7th defendants are using the property for private gain as a car park.
41. Dw1 further stated that where there is a surrender, one can re-apply for re-allocation of the property. That before the subdivision, the immediate owners were the 1st and 2nd defendants, and that 1st defendant had a right to re-apply for the suit plot amongst other applicants. He reiterated that the 6th and 7th defendants took over the property around years 2011, 2012.
42. Dw1 stated that in their letter of 6.7.2016 which is in their bundle, they were asking NLC to cancel the title as they had the mandate to do so. That they wrote to NLC because the land was public land which was irregularly and illegally alienated. However, they never received a reply from NLC, and they are not privy to anything done by NLC.
43. On cross examination by counsel for the 3rd and 4th defendants, Dw1 stated that he was familiar with the letter at page 19 of the 6th and 7th defendants bundle (a letter by the 5th defendant to 7th defendant in regard to regularization of occupation of the suit parcel). To his understanding, the letter did not imply that the previous transactions were irregular. That it meant making an earlier relationship more formal. That as per his memo of 27.2.2020, the T.O.L was issued in year 2008, though in the letter at page 19 of the bundle of 6th and 7th defendants, the same is dated 7.9.2011. He avers that the T.O.L was not irregular.
44. On cross examination by counsel for the 6th and 7th defendants, Dw1 stated that indeed the subdivision of parcel 27/8 was approved by the county council where the pertinent condition was at no.9, the surrender of 2 acres as public land as captured in the minutes of the Town Planning Committee meeting of 21.1.2000 which was the body with the powers to do so. The process was to be completed through surrender of the deed plan for parcel 27/326, but to his knowledge, that deed plan was never surrendered. That not withstanding, the land remained public land and did not revert to the previous owners.
45. He avers that the persons who applied to subdivide the land were three. That the land could be re-allocated where applications were to be made to the Town clerk, who then refers such an application to the general purpose committee, which deliberates through minutes. Dw1 is not aware that the 1st defendant applied for reallocation of the suit land 27/326.
46. Referred to the letter at page 29-32 of the 1st and 2nd defendants bundle, a letter by the 1st defendant to the 5th defendant, Dw1 stated that he does not know if the letter was received. He contends that it was unprocedural for the Commissioner of lands to allocate land belonging to the City Council without making any reference to the council as the Commissioner of Lands had no mandate to allocate county land. He avers that the letters at pages 21 and 24 in the bundle of the 1st & 2nd defendants do not insinuate that the suit land was re-allocated to the 1st defendant and that the application could only be made by all the 3 owners.
47. Dw1 avers that the 5th defendant has given a T.O.L to the 6th and 7th defendants who had taken up occupation of the suit land in year 2008, of which, they own an adjacent parcel. He avers that the subject land was marshy, thus costs were incurred for its reclamation and he is aware that the said land was re-habilitated. Referred to page 19 of the trial bundle of the 6th & 7th defendants, Dw1 stated that the document is dated 7.9.2011 which referred to regularization of the suit land where condition 1 referred to a lease of 25 years with effect from 1.1.2008.He presumes that this is the date that the applicants took up occupation after the issuance of a T.O.L. Thereafter, the 6th and 7th defendants were allowed to do any other business not just a nursery school because the 5th defendant is a planning authority and it can plan and replan with absolute discretion.
48. That at pages 198, 199 and 201 of the trial bundle of the 6th & 7th defendants, those are resolutions of the general purpose committee of which the issue of signing of the lease in favour of the 6th defendant is captured in the document at page 200 of the same bundle, whereby the 5th defendant did execute the lease of 25 years at page 188-197 of the 6th & 7th defendants trial bundle.
49. Further, the 5th defendant’s County Assembly discussed the issue of the T.O.L issued to the 6th defendant, which was then validated as per documents at page 184 and the report at pages 116- 120. Dw1 further stated that the 5th defendant had no immediate plans for the suit plot, thus a T.O.L. and a lease could be given. In this case, the 25 year lease did confer ownership to the 6th defendant, but at the end of 25 years, the land would revert back to the 5th defendant.
50. Dw1 avers that he has never seen any resolution from the 5th defendant indicating that the suit land belongs to the 1st defendant. That the 5th defendant resolved that a letter be done to NLC recommending revocation of the title to the suit land. He avers that rate payments and rate clearance certificates are not prove of ownership.
51. In reference to the letter at page 75-76 of the 6th & 7th defendants’ bundle, Dw1 stated that the letter is from a Commissioner at NLC, one Emma Njogu who is not the chairperson and was asking the 5th defendant to cancel the T.O.L. However, this was not possible as the 5th defendant could use its land as it wished and does not take directions from N.L.C., adding that the chairman of NLC had denounced the letter and that there is no evidence to indicate that N.L.C. formally held a hearing on the matter.
52. Dw1 reiterated that in their letter to NLC, the 5th defendant was stating that a title was irregularly acquired, thus they wanted the same to be cancelled, and this is the same prayer in the counterclaim of the 5th defendant. To this end, he is aware that the 1st defendant has criminal cases. That the position of the 5th defendant is that the 1st defendant is not the owner of the suit land, thus the registration of the land in his name was fraudulent.
53. Dw1 further stated that the 6th & 7th defendants had a valid use of the suit land and they have been complying with the terms and conditions of the T.O.L. by paying rates.
54. On re-examination, Dw1 reiterated that it was unprocedural for the Commissioner of lands to allocate land belonging to the City Council without reference to the latter. In any event such an allocation would be deliberated by the general purpose committee of the 5th defendant for approval or disapproval, of which this did not happen in this case.
Case for the 1st and 2nd defendants
55. DW2 JOHN PETER KAMAU RUHANGI, the 1st defendant was the sole witness for his case and the case of his company, (the 2nd defendant). He adopted his witness statement dated 15.10.2021 as his evidence. He also produced the 15 documents in his list running from page 11-52 as DW2’s exhibits 1-15. His case is that he is the managing director of the 2nd defendant. He avers that the original parcel 27/8 was owned by Bon Accord Ltd. That in 1993, he embarked on purchasing the original property LR 27/8 through his company, the 2nd defendant, but his funds were insufficient. Thus he approached the two plaintiffs to join the deal by way of a joint venture, and that is how the plaintiffs and the 2nd defendant purchased the parcel LR 27/8 measuring 21 acres.
56. That with the consent of the other co-owners of parcel 27/8 Dw2 undertook the process of subdividing the said land, by making an application to the City Council and the Commissioner of lands, of which the approvals were given on condition that some land was to be surrendered as a public utility. That is how the 2 acres of land were surrendered to the City Council of Nairobi as L.R/326 which is now the suit land, while the other parcels were shared equally amongst the owners.
57. That around year 2000, Dw2 applied for re-allocation of the suit property for purposes of developing it as a public utility. That for the re-allocation, the City Council demanded for Ksh.1.2 million as the fees. That he requested his partners to make part payments but they refused, thus he paid the entire costs. The City Council informed the Commissioner of lands about the re-allocation, and the latter approved, and that is how he got back the suit plot.
58. That even though the re-allocation was done to Dw2 personally, he still paid Kshs. 6 million to his former partners so that they could execute a deed of conveyance of the suit property into his name and that is how Dw2 came to acquire the deed of conveyance which he lodged for registration. Thus he is the current registered owner of parcel 27/326. That he embarked on building a school for the community, so he took a loan from the 3rd defendant who agreed to advance him some monies with the suit land as security. He denies the allegation of forgery levelled against him.
59. Dw2 also embarked on adducing further evidence as the plaintiff in Elc 870 of 2016 where he was led by a different advocate from the one representing him in Elc 748 of 2013. He adopted his witness statement dated 26.7.2016 as his evidence. He also produced 18 documents in his list dated 26.7.2016 as his exhibits, while in his supplementary list dated 30.8.2017, he produced one document as exhibit 19.
60. It is however noted that on 31.5.2022 when the court conducted a comprehensive pre-trial exercise, the court gave directions for parties to file their trial bundles containing all their documents within 60 days that is by 31.8.2022. Further, documents filed outside the given timelines were to stand as expunged and the court was only to consider documentary evidence, pleadings and witness statements which had been availed in a paginated trial bundle. It is noted that Dw2 did not identify his trial bundle in relation to the case Elc 870 of 2016 during the subsequent dates for pretrial exercise particularly on 7.12.2022. It follows that any such documents of Dw2 stand as expunged. In any event, the said documents (save the pleading) cannot be traced anywhere in the maze of documents in the files. In that regard, the evidence given by Dw2 in respect of the case Elc 870 of 2016 is hereby expunged from the records.
61. Dw2 was not cross-examined by counsel’s for the 3rd, 4th and 5th defendant. On cross examination by counsel for the 6th and 7th defendants, Dw2 reiterated that he was initially buying the original land alone which was owned by Bonacode, he didn’t succeed, so he got the other partners, the plaintiffs herein. They completed the purchase and distributed the land amongst themselves. That the process of subdivision entailed getting approvals from the Ministry of Lands as well as the City Council on condition that 0.8 hectares was surrendered to the 5th defendant as a public utility, to be used as a nursery school.
62. Dw2 stated that he is knowledgeable in matters of conveyancing, that there was supposed to be a surrender, but there was no deed of surrender executed by the three owners in favour of the 5th defendant. This did not happen because Dw2 had worked with the local and county governments of the 5th defendant and was conversant with what happened when a parcel was surrendered. That if you actually did the surrender, such land would be grabbed by councillors.
63. Dw2 avers that though he surrendered the suit parcel, it still remained his land. That he applied for re allocation vide the letter dated 15.2.2000 at page 27 of the his list in Elc 748 of 2013, but conceded that the said letter has no stamp of the 5th defendant. He did so alone immediately after subdivision, but he gave something to his partners as an appreciation since the original land was jointly owned. He avers that he wanted to develop a nursery school for the public using his private money as there are no other schools in the vicinity. The document given to him relating to re-allocation is a letter dated 14.11.2001 at page 31 of his list in Elc 748 of 2013 which he terms as the letter of allotment. However, the land was not for allotment as the original land was his, thus it was a re-allocation even though this is not mentioned at page 31 of his bundle. He does not know how the City Council was undertaking such a process. To this end, Dw2 does not know if his application was tabled before any committee.
64. Dw2 avers that there is a document of the 5th defendant showing that the land was re-transferred, but there was no deed signed by the county as all the deeds were with his surveyor. Dw2 went on to state that he is the one who registered the land at lands office using the deed plan no.244414 for L.R. No. 27/326 which is at page 47 of the same bundle issued on 17.9.2002. He further stated that by year 2000, he already had a deed plan. The land is currently registered in his name.
65. Dw1 has no invoice in regard to the allocation fee. That though he surrendered the suit land to the government, they did not surrender the deed plan, even though there was an existing deed plan for the suit plot( 326) which was in his possession. He reiterated that he paid his partners Ksh. 6 millions tabulated in the document at page 34 of the same list, though the offer to his former partners was refused.
66. Dw2 stated that he paid stamp duty as per the document at page 43 of his bundle, of which the other partners executed the deed, thus he does not know why they are denying that execution. He is aware that police investigated the case where he was charged with forgery, the case is awaiting judgment, but he went to the High court to challenge the same. He is not aware that the advocate who allegedly prepared the conveyance document, one Chrispin Wainaina denied this information in the criminal case. He was not convicted in the criminal case. He is not aware that the 5th defendant wrote to NLC requesting for cancellation of plot 326.
67. Dw2 also stated that he charged the land with the 3rd defendant and was given 65 million and not 6 million, of which he had withdrawn about 15 million. He was to develop a school. However, he didn’t develop the property and he has not fully repaid the loan. He denies that his intention was fraudulent.
68. He avers that the 6th defendant is an intruder on his land, adding that there was no agreement between him and the 7th defendant for the latter to occupy the suit land. He is also not aware of any lease (as per document at page 188 of 6th & 7th defendants’ bundle) issued to the 6th and 7th defendants by the 5th defendant, in any event, the county could not have leased out his land which is free hold. Similarly, he is not aware of the document at page 198 of the same bundle where the 5th defendant permitted the 6th and 7th defendants to occupy the suit land. Dw2 wants the land to revert back to him alone.
69. On re-examination, Dw1 stated that he is the current registered owner of the suit land, whereby he has attached the deed of conveyance. The current position is that the land is charged to the 3rd defendant and that the land is occupied by the 6th and 7th defendants. He avers that the 7th defendant had bought 4 adjacent plots, so he had sought permission to use the suit plot as a parking from the 1st defendant who was not using the land. But when Dw2 wanted to use the said land, he realized that the 6th and 7th defendants had a T.O.L. from the 5th defendant.
70. He avers the 5th defendant had no registrable interest in the suit land, adding that he was paying land rates to the 5th defendant, of which he was also given a clearance certificate by the same entity when he wanted to charge the suit land. He reiterated that NLC had directed the 5th defendant to cancel the T.O.L issued to the 6th and 7th defendants and to return the land to shim. He avers that he has never been convicted of any fraud offence in respect of the suit parcel.
71. On cross examination by plaintiff in Elc 870 of 2016, Dw2 stated that he paid Ksh. 535 739 for rates clearance, as per the demand note, and he issued a cheque to that effect. However, the registered owner was reflected as Bonacode as per the document at page 49 of his bundle. He avers that as at year 2012, there were no competing interests in the suit property.
72. Dw2 is not aware of any title issued to the 5th defendant, and in absence of such registration, upon surrender, then 5th defendant did not have an interest in the suit land and cannot bequeath a title it dose not have, adding that upon surrender, other people could not apply for the land.
73. Dw1 stated that for the subdivision, a survey plan ought to be there which is approved by director of survey. He avers that the bank advanced the loan not knowing that a T.O.L. had been issued. That he was offering Githere Kshs. 6 million on benevolent basis. He denies committing forgery and that even if he did, he has not exhausted rights to appeal.
Case for the 3rd and 4th defendants
74. The case for the 3rd and 4th defendants was advanced by DW3, TIMOTHY KIMANI, the head of legal department of the 3rd defendant. He adopted his witness statement dated 9.2.2021 as his evidence. He also produced the documents in their bundle dated 28.5.2021 as their exhibits 1-25. His testimony is that the 1st defendant was a customer of the bank. They offered him a credit facility of Ksh 65 million with the suit land as security. The bank had conducted due diligence and established that the 1st defendant was the owner of the suit property. However, the 1st defendant defaulted on the payments despite several demands. Thus as at 3.3.2013, the outstanding amount was Ksh 13, 425 705 and the bank had no otherwise than to embark on realizing the security. That is why the bank issued the statutory notice of 24.7.2013, and since there was no compliance, the bank instructed the 4th defendant to proceed with the sale of the suit property. He avers that the bank cannot be restrained from selling the suit land.
75. The 1st and 2nd defendants did not cross examine Dw3. On cross examination by counsel for plaintiff in 870 of 2016, Dw3 stated that when they did a search dated 29.9.2011, they found that the 1st defendant was the registered owner of the suit property and that the bank had no other duties to consider if there were other claimants or to fish for other encumbrances. The mortgage is dated 6.10.2011 and from where they stand, the bank is holding a good title.
76. Dw3 further stated that the suit plot is graded and used by the 6th defendant as a parking lot as per photographs availed at page 31 of their bundle, but that is not an adverse claim. They did not find out under what circumstances the 6th defendant was using the suit property.
77. On cross examination by counsel for the 6th and 7th defendants (also holding brief for counsel for the 5th defendant), Dw3 stated that he is an advocate since 1998, and has been in the banking sector. He contended that the purpose of the loan was for the 1st defendant to purchase a parcel known as Sabuk/ Komarock/553 in Machakos as seen in the document at page 16 and 15 of the bundle of the 3rd and 4th defendants. That over and above the charge over the suit property, the borrower also executed a personal guarantee for the loan. The bank found no anomaly with the documents at page 32 of the 3rd and 4th defendants’ bundle which is a Conveyance document “ between Gumchem Kenya Ltd to John Peter Kamau Ruhangi” of which the registration particulars of the title are in documents at page 31 of their bundle. However, Dw3 did not visit the suit property. The bank gave out the loan in October of that year and it did not bother them that the title had been acquired two months earlier, nor that a property acquired for 6 million was being valued at Ksh 100 million, though the government valued the suit land at Ksh 30 million.
78. Dw3 contends that what they disbursed to the 1st defendant was Ksh 6.5 million and nothing more, but the bank undertook to disburse the balance. That after the loan was disbursed, the 1st defendant only paid Ksh. 323 000. Thereafter, he never paid a single cent, that is why they initiated the recovery process. They however do not have a counterclaim and they have not sold the security.
79. Dw3 is aware that the 1st defendant was charged with the offence of forgery, of which, Dw3 recorded a statement with the DCI which is at page 177 of the bundle of 6th & 7th defendants and he also testified in the criminal case. Still, Dw3 holds that the 1st defendant had a genuine title. He does not have evidence of payment of stamp duty for the charge, as the receipt at page 68 of their bundle is for the conveyance, adding that the consent to charge the land was not required.
80. On re-examination, Dw1 stated that the bank did not register a charge over the Sabuk property, as this is the property the customer (the 1st defendant) wanted to purchase with the loan and they had no reason to believe that the title was fraudulent. He was also not bothered that the property was bought at sh.6 million but was valued at Ksh 65 million. He avers that there were orders restraining the bank from realizing the security, but such orders were vacated by the court. Still, the bank has not sold the property.
81. On the criminal proceedings, Dw3 stated that lawyer Kingori who was advocate for the 1st defendant during the loan transaction had denied registering the deed of conveyance. He contends that the initial disbursement of 6.5 million was sent to Kingori advocates. He avers that the property was a freehold one, hence no consent was required. He contends that they only paid out 6.5.million as this was the 10% required as deposit to purchase the property at Kshs. 65 million. The rest of the monies was not disbursed.
Case for the 6th and 7th defendants
82. The case of the 6th defendants was advanced by 3 witnesses. DW4 is STEPHEN GATHUITA MWANGI, the County Executive Committee (CEC) of the 5th defendant in charge of burrows. Previously, he was in charge of Housing, Urban Planning, Land and Built Environment. He produced the documents in the bundle of the 6th & 7th defendants as follows; page 182-204 as 6 exhibits, page 19 as exhibit 7, page 20 as exhibit 8, page 22 as exhibit 9, and pages136-149 as exhibit 10.
83. He contends that he authored the letter at page 182 in the bundle of the 6th and 7th defendants which was a response to the queries by the County Assembly of the 5th defendant in regard to the suit parcel. He avers that the suit land is owned by the 5th defendant, the same having been surrendered after subdivision of parcel 27/8.
84. Dw4 avers that the 5th defendant never allocated the suit land to any one, although they gave the T.O.L to the 6th defendant who is in occupation of the suit land. He referred to the document at page 19 of the 6th & 7th defendants bundle which is the letter from the 5th defendant conveying the resolution of the committee, that the 6th defendant acknowledged the letter and has been paying the licence fees as per documents at page 22 and 23. That the council had also resolved to issue a lease of 25 years to the 6th defendant as per the minutes of the general purpose committee at page 200 of the aforementioned bundle of which the lease was executed, the one at page 188-197 of the same bundle. By then, the 6th defendant had occupied the suit property for 4 years.
85. Dw4 stated that the letters at pages 31 and 32 of the 1st and 2nd defendants bundle do not amount to an allocation. That for an allocation to occur, there must be a committee which sits and agrees to do the allocation through minutes, of which he has not seen such minutes.
86. On cross-examination by counsel for the 1st and 2nd defendants, Dw4 stated that at page 187 of the bundle of the 6th and 7th defendants, the cabinet resolved to write to NLC for revocation of title of the suit land. That the letters at page 31 and 32 of the 1st & 2nd defendants have letter heads of the 5th defendant, but he never saw any re-allocation of the suit land back to the 1st defendant though in the letter at page 27 of the same bundle, the 1st defendant is asking for re-allocation of the suit land and the letter refers to subdivisions. For the document no 7 in plaintiffs list in Elc 870 of 2016, the letter is dated 5.12.2001, where the Commissioner of lands is giving a “no objection” which is not an allocation.
87. Dw4 stated that the suit parcel was surrendered and reserved for a public purpose, that is a nursery school, but the 6th defendant uses the land for entertainment and as a public parking. He avers that in the bundle of the 6th and 7th defendant, there is a search indicating that the 1st defendant is the registered owner of the suit land, but the 5th defendant did instruct NLC to revoke the title issued fraudulently. The letter at page 75 in the bundle of the 6th and 7th defendant is dated 10.10.2017 and is from N.L.C instructing 5th defendant to cancel the T.O.L. The matter was also referred to the County Assembly.
88. In reference to the documents at page 52 of 1st and 2nd defendants’ bundle, Dw4 identified them as rate demands for the suit property, but added that the county issues invoices, though not necessarily to the registered owners. Thus after subdivision, demand for rates can even be done to the original owner. To this end, he has seen rate demands made to Bonacode and the 1st defendant. He avers that the 6th defendant got a T.O.L in year 2011, and has a lease. However, Dw4 does not know if the 6th defendant has a title.
89. For the T.O.L., Dw4 stated that the same has no limits and does not need an allocation, the same is given until the time when the County needs the land, adding that a T.O.L cannot be given on private land. A person needs to apply for a T.O.L to be given the same, of which, Dw4 did not see the application for 6th defendant, only the acceptance. He averred that there was nothing irregular about the regularization of occupation document at page 198 of the bundle of the 6th and 7th defendants, as the 6th defendant had been in occupation of the suit land for 4 years and the place was marshy. That the 6th defendant did get a lease of 25 years, the one dated 2.9.2017 at page 190 of the aforementioned bundle. It commenced on 1.1.2008 less five days. He has nothing to show why the lease was not executed in year 2011. He is aware that a lease is a registrable document, and for the lease to the 6th defendant, it was presented at the ministry of Lands as per the document at page 189 in the bundle of the 6th and 7th defendants. While at page 203 thereof, is the application for the registration of the lease. He avers that as per the documents availed, the 6th defendant does not have a valid lease.
90. On cross-examination by counsel for the 3rd and 4th defendants, Dw4 stated that there is a difference between a lease and a license, where by a lease has a specific period. That what was initially given to the 6th defendant was a T.O.L., then it was converted into a lease as seen in the document at page 198 in the bundle of 6th defendant.
91. On re-examination, Dw4 stated that for the documents of the 1st and 2nd defendants at pages 31 & 32, save for the letter heads, he cannot guarantee that they are from the 5th defendant. That the said documents are addressed to the Commissioner of lands and have no receiving stamps from the said entity. Similarly with regard to the document at page 27 of the same bundle, there is nothing to show that the letter was received by the 5th defendant.
92. Dw4 reiterated that he is not aware of any application for re-allocation. Further, in the bundle of plaintiffs in Elc 870 of 2016, the letter dated 5.12.2001 is addressed to Town clerk, but has no stamp. That the “no objection” letter of 5.12.2001 by Commissioner of Lands, the parcel referred to is 23/326, which appears to be a different parcel. Adding that the prerogative to allocate the land fell upon Nairobi City Council.
93. Dw4 reiterated that the condition for approval was the surrender of a portion of land to be reserved for public use, that is a nursery school. He further stated that the reversionary rights in a lease belong to the 5th defendant. The fact that there is no nursery school does not mean that the 5th defendant cannot have one. On the lease, Dw4 stated that the same was signed by both parties and was for a specific period and was presented for registration. The fact that it was not completed does not nullify the lease. He reiterates that the registration of the suit land to the 1st defendant was done fraudulently.
94. Dw4 is not aware of any clarification sought by NLC from the 5th defendant regarding the letter by Emma, and he was never summoned at NLC, adding that NLC has no mandate to deal with matters which are pending in court and that the 5th defendant does not seek guidance from NLC on matters of T.O.L. He also does not know where the 9 months period for a T.O.L mentioned by N.L.C came from. Thus the opinion of NLC is not binding.
95. Dw4 contends that the 5th defendant has a counterclaim to have the title and conveyancing records in favour of the plaintiffs and 1st defendant cancelled, and for issuance of a title in the name of the 5th defendant.
96. DW5, JACOB MUGENI ODOUL introduced himself as a senior forensic document examiner working with Ethics and Anti Corruption Commission. Previously, he was working as a Chief Inspector forensic laboratory at Director of Criminal Investigations headquarters. He examined the documents forwarded to him at page 150, 152-153 in the bundle of the 6th defendant which were; The deed of conveyance dated 8.7.2011 for parcel 27/326, specimen signature of David Githere and Maara vis a vis their known signatures, which were forwarded via an exhibit memo. He did the analysis and found that none of the provided specimen signatures could have been used to sign the conveyancing document by Githere and Maara. Dw5 is not aware of any criminal proceedings emanating from those documents. He left the DCI, a year after he did the report.
97. On cross examination by counsel for the 1st and 2nd defendants, Dw5 stated that it is one Corporal Onyango who asked for the report pursuant to investigation that led to the charges of year 2015. It is not the 6th defendant who asked for the report. The two signatures in question related to Githere and Mara who were the complainants in the charge sheet, but he is not aware that the two complainants later withdrew the case. He is aware from experience that a person can have varying signatures. He doesn’t remember having testified in the criminal case and he does not know the status of the said case.
98. On re-examination, Dw5 stated that the charges against the 1st defendant was forgery, and he has not come across any documents indicating that the charges were withdrawn.
99. DW6 is ISAAC MAINA WANDERE, the 7th defendant. He avers that he is the founder and C.E.O of the 6th defendant. He is in court because of cases Elc 748 of 2013, 870 of 2016 and 754 of 2013. He adopted his witness statement filed in Elc 870 of 2016 at pages 78-96 of his trial bundle as his evidence.
100. He avers that in year 2007, he embarked on purchasing the parcels adjacent to the suit land where he was dealing with his friend, the late Mburu Githere. That the land was owned by Githere, Maara and Ruhangi. He bought 4 parcels, that is 27/323, 27/324, 27/325 and 27/329. The enticement was that there was a public utility plot 27/326, of which Githere told him that he could talk to the council though there was no title for parcel 326.
101. That when Dw6 went to the City Council, they told him to do some work on the land which was swampy. Then he was approached by the 1st defendant who offered to sell the suit land to him at Ksh 30 million. The transaction however did not materialize as Dw6 came to learn that the suit land belonged to the 5th defendant. Thus Dw6 applied for a T.O.L. from the 5th defendant which entity recognized the occupation, investments and improvements made by the 6th defendant for a period of 4 years. That on 7.9.2011, the 5th defendant regularized the occupation of the 6th defendant by granting it a T.O.L in form of a 25 years lease over the suit property for use as a garden for recreation purposes, weddings, conferences and car sheds.
102. That since year 2008, the 6th defendant has remained in possession of the suit land and has been paying annual rent of Ksh 38 000 to the 5th defendant. However, on 24.6.2013, the 6th and 7th defendants found that the suit land had been advertised for sale in the Daily Nation by the 4th defendant with particulars that the land was registered in the name of the 1st defendant. That is what prompted the 6th and 7th defendants to file the suit Elc 754 of 2013, while the two plaintiffs (Githere and Maara) also upon seeing the advertisement filed the suit Elc 748 of 2013, where each claimant was seeking injunctive orders to stop the sale. The said orders were granted in Elc 748 of 2013.
103. That subsequently thereafter, the 1st defendant was charged with the offence of forging documents of title to land in criminal case no. 351 of 2015 in Milimani. The plaintiffs later attempted to withdraw the charges but the court declined.
104. That thereafter, and in an attempt to validate the invalid title, the plaintiffs herein and the 1st defendant allegedly entered into a consent where they were agreeing inter alia to sell the suit property, share the proceeds and then the 1st defendant was also to pay the outstanding loan from his share.
105. That the plaintiffs and the 1st defendant then resulted to violence whereby on 13.3.2016, they ambushed the suit premises with about 50 armed persons while brandishing a gun and destroyed properties worth Ksh 20 000 000, of which the criminal case is ongoing. The 2nd defendant duly informed the 5th defendant that the 1st defendant was claiming to be the owner of the suit land. Thus the 5th defendant pursued investigations through NLC and requested for revocation of the title. It also pursued the matter through its County Assembly, of which the latter confirmed that indeed the land belonged to the 5th defendant.
106. The 6th and 7th defendants maintain that the conveyance dated 8.7.2011 is a forgery and a fraudulent document and asserts that the 5th defendant is the legitimate owner of the suit land, while the 6th and 7th defendants are the tenants. Dw6 avers that he is still in occupation of the suit land.
107. On cross examination by counsel for the 1st and 2nd defendants, Dw6 reiterated that the deed of conveyance was a forgery and nothing was conveyed to the 1st defendant, even though the search at page 21 of his bundle indicates that as at 29.9.2011, the registered owner of the suit land was the 1st defendant. He avers that the suit land was the surrendered portion out of parcel 27/8, of which a nursery school was to be constructed. That he indeed purchased 4 parcels out of the resultant subdivisions of parcel 27/8 in year 2007, though he has no sale agreements. He contends that he entered the land via permission from the person he bought the parcel’s from who is David Githere (1st plaintiff). The vendor did not show him the other partners, however Githere is the one who told him that he could use the suit land for parking, then take him to the 5th defendant to get the lease. He avers that he used Ksh 10 million to reclaim the suit land.
108. He contends that indeed the 1st defendant had offered to sell the suit land to him in year 2008 at Ksh 30 000, but again he also applied for the land from the 5th defendant in an attempt to hit two birds with one stone. The sale did not go through as there was no documentation. He is not sure if the application to the 5th defendant is in his bundle. He applied for the land for a public purpose. He got a T.O.L on 8.4.2011 after the meeting of the General Purpose Committee, which granted the T.O.L. Later on, he went for the signing of the lease dated 8.8.2011, but it was executed on 2.9.2017 as per documents in his bundle at pages 188-197. However, the registration of the lease became problematic as the 5th defendant was not the registered owner of the suit land.
109. He avers that the 1st plaintiff (Githere) gave him original copies of all the survey deed plans of year 2002. However, the deed plan found with the 3rd defendant was for year 2011 in the name of the 1st defendant, which was used to get the loan hence the discrepancy.
110. Dw6 is sure that the 1st defendant was charged with the offence of forgery, but was not convicted as the file got lost. He was not there when the plaintiffs and the 1st defendant entered into a consent. In another case 409 of 2016 cited at pages 104-105 of his bundle, Dw6 was the complainant while those charged were 1st defendant, 2nd plaintiff and a son of the 1st plaintiff. The case was dismissed by the trial court but DPP applied to go to the High Court.
111. Dw6 contends that he is claiming the suit land as a tenant and no one has ever asked him to leave the land though he is attacked with machetes and guns by goons.
112. On cross examination by counsel for the 3rd and 4th defendants, Dw6 stated he acquired the suit land when it was swampy, it was next to the parcels he had also acquired, and he proceeded to rehabilitate the same with authority from Mburu Githere, but had no written authority from the City Council. He was to later establish that the land belonged to the City Council, that was after he had embarked on purchasing the suit land from the 1st defendant. He avers that the land was a surrender to the 5th defendant as per the letter written as a condition for the surrender. That in the letter at page 198 of his bundle, the 5th defendant was doing regularization of the suit land where 5th defendant recognized that he had rehabilitated the suit land.
113. When asked the question; As at now who is the owner?, Dw6 replied; “ I also ask myself that question; if it is Ruhangi, Githere, Paramount as at 2008, but for now it is City Council of Nairobi”. He reiterated that the land was reserved for a public purpose, a nursery school. That he got the T.O.L based on the letter at page 198 of his bundle. Then he executed the lease dated 2.9.2017. However, the land is registered to 1st and 3rd defendants as there was a loan.
114. On cross examination by counsel for the 5th defendant, Dw6 stated that the suit land is owned by the 5th defendant, but he occupies the same on the basis of a T.O.L, of which he regularly pays rates. He is not aware of any other allocation of the suit land.
115. On re-examination, Dw6 stated that the deed of conveyance is not a proper document, it was not original, the original one had three names and not one individual and was dated 17.9.2002, the one with 1st defendant was dated 27.5.2011, that is why the deal between him and 1st defendant collapsed. He reiterated that Githere is the one who initially gave him permission to occupy the suit land. He explained that the parcels of land were divided into 3 sections. Section A which is to his right are the parcels for the 1st defendant, the middle section belonged to David Mburu Githere, and that is where Dw6 bought the 4 parcels of land, while on the left where there is clyde motors, the land belonged to George Jonathan Maara. His parcels go downwards from Total petrol station on Kiambu road, and so the suit parcel was on that section and by the time he was occupying the same with permission from Githere, he was not aware that any one else had an interest in that land.
116. Then in year 2008, the 1st defendant offered to sell the suit land to him, but Kingori Kariuki advocates disclosed to him that the original deed plan was with Okongo Mogeni advocates, and he also learnt that the suit land had been surrendered to the 5th defendant. He has been allocated the land by the 5th defendant to develop the same as a parking area. He deems the document at page 198 of his bundle as his T.O.L. as he has no other license. It was also the authority on the issuance of the lease, which lease was signed on 2.9.2017. The document at page 200 of his bundle are the minutes of the 5th defendants General Purpose Committee.
SUBMISSIONS
117. The submissions of the 1st and 2nd defendants are undated. They frame the issue for determinations as; Whether the 1st Defendant is the legal owner of the Suit property to the exclusion of the 5th, 6th and 7th Defendants. They have given an account of how the suit land was surrendered to the 5th defendant after subdivision, then on 15.2.2000, the 1st defendant applied for allocation of the said land.
118. That the Deed of conveyance as well as the copy of the Official Search confirms that the 1st Defendant is the registered owner of the Suit property. It is further submitted that the law as set out under Section 26 of the Land Act (they must have meant The Land Registration Act) creates a presumption in favour of the 1st Defendant’s ownership of the title to the exclusion of the 5th, 6th and 7th Defendants claim over the suit property. That the 1st Defendant’s proof of ownership of the suit property by virtue of his registration automatically shifts the evidentiary burden of proof to the 5th, 6th & 7th Defendants as the parties alleging otherwise in line with the provisions of Sections 107 and 109 of the Evidence Act.
119. In support of their arguments, the 1st and 2nd defendant relied on the cases of Daudi Kiptugen v Commissioner Of Lands Nairobi Lands & 4 others [2015] eKLR and Muthemba v Gachara (Environment & Land Case 266 of 2016)[2023] KEELC 18868 (KLR) (19 July 2023) (Judgment) amongst other cases.
120. The submissions of the 3rd and 4th defendants are dated 24.10.2025. They frame the following issues for determination; Whether the suit property was lawfully surrendered and legitimately reallocated to the 1st and 2nd defendants, whether the resulting title is legitimate and indefeasible, whether the 3rd defendant is a bonafide charge for value and who should bear the costs of the suit?.
121. On the 1st issue, the 1st-3rd defendants have set out the law that governed subdivision of the land which was the Physical Planning Act Cap 286 as well as Rule 15 of the Physical Planning (Subdivision) Regulations of 1998 which required that some land be reserved for public utilities during subdivision. That in the case of parcel 27/8 which was measuring 21 acres, the condition for the approval of subdivision was the surrender of 2 acres of land to the 5th defendant for a public purpose, a nursery school. The case of Ngimu Farm Limited v Attorney General (2019) KEELC 1099 ( KLR) has been cited to buttress the issue of surrender.
122. On the 2nd issue, the 3rd and 4th defendants contend that there were numerous correspondences between the 1st defendant, the 5th defendant and the Commissioner of lands which clearly point to an intention by the 5th defendant to re-allocate the land to the 1st defendant.
123. They cite the provisions of section 26 (1) of the Land Registration Act to state that the proviso creates a presumption of validity in favour of the registered owner of the land. It is argued that the 5th defendant made rate demands upon the 1st-3rd defendants, hence the doctrine of legitimate expectation takes effect. On this point the defendants cited the case of Fanikiwa Limited & 3 Others v Sirikwa Squatters Group & 17 Others (2023) KESC 105 ( KLR) .
124. On the 3rd issue, the 3rd and 4th defendants contend that the 3rd defendant is a bonafide chargee for value without notice of any defect in the title, adding that the credit facility was disbursed on the strength of the investigations and documents at lands office. It is argued that the land registration system in Kenya mirrors the torrens system where the information set out in the register is taken to be correct. Thus the bank was guaranteed of the correctness of the title after conducting due diligence.
125. The submission of the 6th and 7th defendants are dated 17.10.2025. They frame the following issues for determination; Whether the surrendered portion of 0.8 Ha now LR NO. 27/326 was ever reallocated to the 1st defendant and or 1st defendant ever obtained a legitimate Title. Whether there was any proper Title for the 3rd and 4th defendants to charge and whether the 1st defendant charged the suit land, LR NO. 27/326 for genuine reasons. Whether the 5th defendant had the legal mandate to issue a TOL and Lease to the 6th and 7th Defendants. Who is the rightful owner of LR. 27/326 and what orders should issue.
126. On the 1st issue, the defendants contend that there is no dispute that the suit land was surrendered to the 5th defendant as public land. That reallocation of such land entails conversion of public land to private land as set out under Section 9 of the Land Act, 2012. That despite the surrender, it is not clear as to why the initial proprietors did not formally execute and submit the surrender documents to the 5th defendant and the land’s registry.
127. That there is no evidence as to how the suit land was reallocated back to the 1st defendant. That the suit land being public land after being surrendered to the 5th defendant was no longer available for the plaintiffs and or the 1st and 2nd defendants to transact on it as if it were private land. The defendants urge the court to find that the title held by the 1st defendant is as a result of fraudulent dealings and is void ab initial. The defendants relied on the cases of Gatarakwa Farmers Company Limited v National Land Commission (Enviromental and Land Originating Summons 001 of 2022) [2025] KEELC 725 (KLR) (11 February 2025) (Judgment).
128. On the second issue, the defendants contend that only a sum of Ksh 6 million was advanced, yet the land was charged for the amount of Ksh 65 million. It is submitted that there was no proper title to be charged.
129. On the third issue, it was submitted that once the land was surrendered to the 5th defendant, it ceased to be private land and became absolute property of the 5th defendant. Any dealings thereafter were at the whims of the 5th defendant, of which the 5th defendant had the mandate to issue a Temporary Occupation Licence to the 6th defendant. That the granting of the T.O.L. and the Lease as well as the execution of the lease in respect of LR NO. 27/326 were done through the relevant committees and received full approvals even of the County Assembly. That it is not in contention that the 6th defendant has been in possession and actual occupation of the suit land since year 2008 and they have made various improvements thereon, adding that the procedure was followed to the letter.
130. On the fourth issue, it is submitted that the title in the name of the 1st defendant should be cancelled as it was acquired fraudulently and the suit land to revert to the 5th defendant, adding that fraud was pleaded and proved by the 5th and 6th defendants. To this end, the defendants relied on the cases of Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR and Mas Construction Limited v Sheikh & 6 others (Civil Appeal E789 of 2023) [2025] KECA 349 (KLR) (28 February 2025) (Judgment) amongst other cases.
DETERMINATION
131. Having considered the pleadings, the evidence adduced and the rival submissions proffered by the parties, I deem it fit to frame the issue for determination as follows; Who as between Githere, Maara, Ruhangi, the Bank, the County and Wandere is the rightful owner of the suit property and what orders are appropriate to be given in the circumstances.
132. Before I delve into the determination of ownership, I must point out from the onset that Githere and Maara did not turn up for the hearing of their cases, hence their claims were dismissed on 7.2.2023.
133. In determining the question of ownership, I find that all the parties who gave evidence before this court that is Ruhangi, the Bank, the County and Wandere tend to be in agreement that the suit land parcel 27/326 measuring 2 acres resulted from the subdivision of the 21 acres original parcel 27/8, of which the suit land was to be surrendered to the County Council of Nairobi as public land reserved for a nursery school. Nevertheless, the court will still re-examine the status of the suit parcel as well as the nature of rights and interests in that land as claimed by the rival parties.
Status of parcel L.R.27/326
134. The competing interests of the parties herein are rooted to this parcel. Ruhangi is the registered owner of the said land, as at 29.9.2011 going by the copy of official search availed at page 51 of his bundle and at page 21 of Wandere’s bundle. The claim of the bank is intricately intertwined with that of Ruhangi’s title where by the suit land was mortgaged for the sum of Ksh.65 million in favour of the bank going by the copy of the charge at page 41 of the bank’s bundle. The subject land is occupied by Wandere with permission from the County through an arrangement identified as a Temporary Occupation Licence (T.O.L) and a lease.
135. The status of the suit land is first and foremost a matter of law, See; Pati Limited v Funzi Island Development Limited & 4 others [2021] eKLR. Thus it is pertinent to establish how the suit land came to be. As stated earlier, the land was birthed from a larger parcel L.R 27/8 during subdivision. The applicable law in relation to subdivision of the land at the material time was the Physical Planning Act of 1996 (Repealed). The provisions of Section 41(5) provided that;
“A local authority may approve with or without such modifications and subject to such conditions as it may deem fit, or refuse to approve, an application made under subsection”.
136. Rule 15 of the Physical Planning (Subdivision) Regulations, 1998 further provided that;
“In any scheme of subdivision of land within the area of a local authority the following conditions shall be complied with—
(e) Where required by the local authority and the Director of Physical Planning, land suitable and adequate shall be reserved at no cost to the local authority for open spaces, amenities, recreational facilities, road reserves, public purpose relative to the area to be subdivided and for road widening”
137. The notification of approval by the predecessor of the County dated 28/1/2000 at page 20 of Ruhangis bundle states at paragraph 9 that the “ area of land coloured in red (0.8 ha) on the deposited plan to be reserved for public purpose (Nursery school) and to be surrendered to Nairobi City Counsel free of costs”. The subsequent approval by the Commissioner of lands dated 11.2.2000 at page 21 of the same bundle had the same condition at number 10. The said documents have also been availed by the County, while Wandere has availed the notification of approval at page 131 of his bundle.
138. This far, it is clear that the predecessor of the County was the local authority at the material time which had the legal mandate to give conditions during subdivision of land, of which the 2 acres of land was to be surrendered to the City Council and was reserved for public use as a nursery. The bank has rightly submitted and cited the case of Ngimu Farm Limited v Attorney General ( 2019) KEELC 1099 ( KLR) that; “ Once surrendered, the land is reinstated back to the grantee, the Government of Kenya…” .
139. This far, there is no doubt that the suit land became government land reserved for a specific purpose that is the setting up of a nursery school by the 5th defendant. Any disposal of such land by the local authority had to adhere to the applicable law including the Government Lands Act and the Local Government Act (both repealed).
Re-Allocation and Registration of the suit land to Ruhangi
140. Was the suit land lawfully allocated to Ruhangi? In Niaz Mohamed Jan Mohamed v. Commissioner for Lands & 4 Others [1996] eKLR, the court stated that such public land reserved for a specific purpose was held in trust for the public in accordance with the law. Similarly in the case at hand, the suit land, having been reserved for a specific public purpose, which purpose had not been achieved was not available for reallocation. That makes the claim of Ruhangi to be dead on arrival.
141. However, even if this land was available for re-allocation (which is not the case), the aphorism of Murphy’s law where “anything that can go wrong will go wrong anyway” appears to apply in this claim. To start with, any perceived flow of an interest in the suit land from the County to Ruhangi ought to have followed the law and procedures. The applicable law on allocation of public land was mainly the Government Lands Act. Such an allocation of government land would require the applicant to surmount various steps captured in a legion of decisions including; Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (Constitutional and Human Rights) (21 April 2023) (Judgment) Neutral : [2023] KESC 30 (KLR), Registered Trustees of Sheik Bayed Bin Sultan Al Nahyan v Pelican Engineering & Construction Company Limited & 4 others (Environment & Land Case 639 of 2015) [2024] KEELC 6534 (KLR) (3 October 2024) (Judgment) Neutral citation: [2024] KEELC 6534 (KLR), Ali Mohamed Dagane (Granted Power of Attorney by Abdullahi Muhumed Dagane, suing on behalf of the Estate of Mohamed Haji Dagane) v Hakar Abshir & 3 others [2021] eKLR; Nelson Kazungu Chai & 9 Others v Pwani University ( 2014) Eklr. The steps include; i) An approved Part Development Plan (PDP)
ii) Making an application alloacation
iii) Confirmation of availability of the plot
iv) Issuance of the letter of allotment to the applicant
v) Payment of the requisite fees
vi) Survey of the plot
vii) Issuance of the deed plan by Director of survey
viii) Processing and execution of the new grant by Commissioner of lands
ix) Registraton by Registrar of titles.
142. It is pertinent to note that the County Council was holding the land in a fiduciary relationship with the residents, thus the land was held in trust by the council. In such a scenario, the City Council also needed to ratify such allocations/ allotments through minutes. In the case of County Council of Meru & 2 others v P.C.E.A thro’ the Registered Trustees [2020] eKLRs [2020] eKLRT, the court stated that;
“In the Pre-2010 regime, County Council land could be acquired through allotment, whereby Minutes of the relevant Council had to sanction the process. In addition, the allotment process had terms of engagement like offer and acceptance which had to be followed”
143. In Fungicha & 3 others v Musa & another (Environment & Land Case 019 of 2021) [2025] KEELC 3306 (KLR) (23 April 2025) (Judgment) Neutral citation: [2025] KEELC 3306 (KLR), the court gave a step by step account of how council trust land was allocated; A person desirous to be allocated such land had to make an application, the council would convene a meeting and come up with minutes indicating approval or no approval of the application. In case there was approval, the requisite letter of allotment would be issued.
144. The land in question was not trust land, but the same principles would apply given the fact that the City Council was the custodian of the suit land and held it in trust for the residents. It is therefore clear that the City council was obligated to convene a meeting and come up with minutes approving re- allocation of the suit land.
145. The document at page 27 of the 1st defendant is apparently the application for reallocation of the land to Ruhangi. There after, there is nothing to indicate that any other step was followed in respect of that application. There is no evidence of a meeting by the City Council to discuss and approve the re-allocation, there is no letter of allotment either. The letter from the county at page 31 of the 1st defendants bundle dated 14/11/2001 appears to be the one the 1st defendant is anchoring his claim of approval. The same is directed to the Commissioner of lands stating; “ I recommend that you process the titles for subplots 4,5,6,10,15,16 and the school plot”. That is certainly neither an approval from the relevant council committee, nor is it an offer by way of an allocation/allotment.
146. Of great concern is the fact that the suit land appears not even to have been surrendered in the first place!. There is no document confirming that the suit land was actually surrendered. The notification of approval of the subdivision by the 5th defendant is dated 28.1.2000, while the one by the Commissioner of lands is dated 11.2.2000. It is clear that by the time Ruhangi was making an application to the 5th defendant for reallocation of the suit land on 15.2.2000, the interest in the land had not transitioned to the 5th defendant, thus there was no land to apply for re-allocation.
147. In his own testimony, the 1st defendant admitted that he did not formally execute the surrender documents to the 5th defendant because he had worked with the said entity and he was aware of what happens when land is surrendered, that the same is grabbed and sold. And this is exactly what he did, grabbing the suit land even before surrendering it to the 5th defendant. However equity deems as done that which ought to be done, see Willy Kimutai Kitilit v Michael Kibet (2018) eklr on application of equitable doctrines. Thus in the case at hand, upon subdivision of the 21 acres of parcel 27/8, there was equitable conversion of 2 acres in favuor of the 5th defendant which is the subject suit parcel 27/326. It is therefore immaterial that Ruhangi had stolen the said land in advance. The suit land is deemed to have been surrendered to the City Council of Nairobi.
148. Another point of interest is the document being referred to as the Deed of Conveyance dated 8.7.2011 availed at page 43 of Ruhangi’s bundle. In the said document Githere and Maara are the vendors conveying the suit land to Ruhangi at a price of Ksh. 6 million. Paragraph (b) reads as follows; “The vendors have caused the said property to be surveyed and subdivided into several subdivisions and have agreed to sell and convey to the purchaser one such sub plot being L.R 27/326 (Original Number 27/8/26)……”. The suit land having been surrendered to the 5th defendant, how then did Githere and Maara recapture the interest in that land so as to be capable of selling the same land to Ruhangi?. The logical conclusion to make is that this is but one of the many ways in which Ruhangi had embarked on getting the suit land unlawfully. The court terms the said document (deed of conveyance as an illegal and invalid document.
149. It is not lost to this court that the said deed of conveyance availed by Ruhangi at Page 43 of this bundle is the same one he apparently availed to the bank at page 28 of the bundle of 3rd and 4th defendants. However, the latter one has the cover page stating that the conveyance is between Gemchem Kenya Limited to John Peter Kamau Ruhangi dated 8.7.2011. How is it that Ruhangi was transferring the land from his company to himself? Again these discrepancies have not been explained.
150. The registration of the suit land in the name of Ruhangi is itself a mystery. The search simply states that as at 29.9.2011, Ruhangi was the registered owner of the suit land. As indicated earlier, registration of land comes at the tail end of acquisition of rights and interests in land requiring supporting documents. In his own testimony, Ruhangi stated that; “I am the one who registered the land at lands office using the deed plan for that plot L.R.27/326”. However, there is not the slightest evidence to indicate how Ruhangi came to be registered as the proprietor of the suit land, there is no title document that has been availed to capture, known as the Government Lands Act- GLA, so as to be in tandem with the copy of the search which bears a heading “Government Lands Act Cap 280”. The deed plan dated 19.9.2002 appears to have sprung up from nowhere and its owner is unknown. Ruhangi simply stated that “ We didn’t surrender the deed plan. There was an existing deed plan for that land ( 326) and it was in my possession”
151. The charging of the suit land by Ruhangi is yet another tell tale sign of the crafty machinations engineered by Ruhangi to dispose off the suit land. In his witness statement, Ruhangi states that “ having registered the conveyance in my name and minded that the plot was to be utilized in establishing public utility enterprises, I decided to source for funds to construct a school for the local community…. Therefore I approached Paramount bank who agreed to advance me monies which were secured with the suit plot title as security…”.
152. However, the banks evidence as at page 16 of their bundle is that; “The term loan facility for Ksh. 65 million was to facilitate purchase of a property plot L.R. N. Sabuk /Koma Rock Block 1/553, Machakos”. It is worthy to note that even if Ruhangi had put up a school on the suit land, that would still not have cured the illegality. This is because in the Constitutional architecture at Article 61 (2), land in Kenya is categorized into 3; public, private or community land. Thus putting up a school on private land does not in anyway convert such land from private to a public utility plot! It would remain private land for private gains.
153. Still on the charge, it is noted that the loan facility was for Ksh. 65 million, but the amounts advanced was Ksh.6.5 million according to the bank. During cross examination, Ruhangi denied that he only received Ksh 6 million, that he had withdrawn Ksh 15 million. He is conspicuously mute on the loan amount in his witness statement, and he has not availed any loan statement to confirm what was advanced to him. However, the records indicate that he presented a consent before this court for the suit property to be sold so as to pay a loan!. That is clearly a manifestation of the illegalities relating to the dealings in the suit land.
154. Another misadventure relating to the illegalities of the charge is the speed at which Ruhangi had set out to dispose off the subject land. The document which Ruhangi was presenting to the bank to get the loan is the deed of conveyance dated 8.7.2011 which purportedly transferred the land interest to him. Hardly 3 months later on 6.10.2011, Ruhangi was alienating the land off to the bank. Speed in land transactions is not always a mark of efficiency, it can be a red flag of sham land transactions as it was in this case.
155. The Consent dated 2.7.2014 and adopted in court on 11.7.2014, is yet another pointer to the Machinations of Ruhangi to get the suit land by whatever means. In the said consent, the court was urged to make an order that the suit land was jointly owned by Githere, Maara and Gumchem, that the same be sold to offset the outstanding loan with the bank, and further proceeds be shared between them. Again if the re-allocation of the land was only made by Ruhangi, how then did the three come to own the same land all over again?. It was not until 15.9.2017 that the said consent was set aside by the court.
156. As for the suit Elc 870 of 2016, it is clear beyond peradventure that the same was filed as a red herring to convolute the dispute further thereby diverting issues and delaying determination of the real issues in dispute. It is noted that the said suit was filed by Githere, Maara and Ruhangi, 3 years after the filing of the other suits Elc 748 and 754. In the said suit (ELC 870 of 2016), the plaintiffs were seeking a declaration that they are entitled to excusive rights of possession to the suit property and for cancellation of the T.O.L held by Wandere. What was so difficult in amending their pleadings in Elc 748 of 2013 so as to combine the claims of Ruhangi and his company Gumchem with those of Githere and Maara. By filing the suit 870 of 2016 whose script was certainly different from the one in Elc 748 of 2013 (where Githere and Maara had sued Ruhangi and others), it becomes clear that the intention of these parties, particularly Ruhangi was that they were intent on creating a conundrum in the dispute. It is no wonder that at the hearing of the case Dw2, (Ruhangi) in his evidence in chief was led by his advocate, one Mwenda, but still went ahead to cross examine himself through the same advocate, ostensibly as a plaintiff in Elc 870 of 2016, the case where he adduced no evidence!
157. The red herring is also clearly visible from the filing of the application for injunction contemporaneously with the suit in Elc 870 of 2016 seeking orders to have possession of the suit land and for eviction of Wandere, which application was dismissed vide the ruling of the court dated 28.4.2017. It is noted that a similar application for injunction had been filed by Githere and Maara dated 26.6.2013 in Elc 748 of 2013 which was dismissed 6 years later on 11.6.2019, where the court noted that it was not clear as to how the plaintiffs ( read Githere and Maara) had retained proprietary interests in a parcel which had been surrendered to the 5th defendant as a public utility. It follows that the filing of another application for injunction in another suit was another shot by Ruhangi to have a second bit of the cherry.
158. Still on this suit Elc 870 of 2016, the pleadings therein are inconsistent with the evidence tendered by Ruhangi. In the said Suit, the claimants contend as follows at paragraph 5-8 of their plaint;
(5) “at all material times relevant to this suit, the plaintiffs ( read Ruhangi, Maara and Githere) are the registered owners of the property known as L.R 27/326 ( Original 27/8/26).
(6)The plaintiffs aver that on or about July 2011 after the purchase of the said property of 21 acres, the plaintiffs subdivided the subject property into 0.5 acres.
(7) The plaintiffs aver that upon the subdivision of the suit property herein they sold a portion to the 2nd defendant (read Wandere)
(8) That a further portion was surrendered to the defunct Nairobi City Council by then which was a condition precedent to the subdivision which portion was to be used as a public utility”
159. The evidence tendered by Ruhangi is completely at variance with these pleadings, Since Ruhangi’s testimony and indeed the testimony of all the other parties was that parcel 27/326 was the surrendered subject property emanating from the subdivision of the 21 acres identified as L.R 27/8, of which the subdivision happened sometime in year 2001 or thereabout culminating in the deed plan for the suit parcel in year 2002. The impression made in the pleadings in Elc 870 of 2016 is that the purchase and subdivision of the 21 acre parcel occurred in 2011, of which there is introduction of the large parcel as 27/326 (Original 27/8/26)! Clearly, such averments were meant to convolute and confuse issues.
160. The post 2010 Constitution has brought about new jurisprudence where the central question is no longer “who is the registered owner” but “How did you become the registered owner”. In Daudi Kiptugen v Commissioner of Lands & 4 Others [2015] eKLR the court stated that:
“…the acquisition of title cannot be construed only in the end result; the process of acquisition is material. It follows that if a document of title was not acquired through a proper process, the title itself cannot be a good title.”
161. In Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment) Neutral citation: [2025] KESC 21 (KLR), the Supreme Court of Kenya cited its earlier decision of Dina Management Limited vs. County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR), where the court stated that;
“Indeed, the title or lease is an end product of a process. If the process that was followed prior to issuance of the title did not comply with the law, then such a title cannot be held as indefeasible.
162. In Chemey Investment Limited v Attorney General & 2 others [2018] eKLR, the court cited a raft of decisions whose effect was that the sanctity of title was never intended or understood to be a vehicle for fraud, illegalities or un just enrichment at public expenses. The court stated thus;
“Decisions abound where courts in this land have consistently declined to recognize and protect title to land, which has been obtained illegally or fraudulently, merely because a person is entered in the register as proprietor”.
163. In Alice Chemutai Too v Nickson Kipkurui Korir & 2 others [2015] eKLR, the court stated that;
“Having considered all arguments I frankly do not see how the title of the 1st respondent, the star fraudster, can be upheld, and having nothing to charge, I do not see how the charge in favour of the bank can be upheld”.
164. Similarly, the 1st defendant herein appears to be the star fraudster. The re-allocation of the suit land unto him was out rightly illegal and unlawful, thus the registration of the suit land in his favour is invalid, and so is the charge.
The Charge
165. The case of the bank is that the charge over the suit property is valid and lawful. However, the court has already pronounced itself on the validity of the claim of Ruhangi, thus by extension, the claim of the bank too is dead on arrival. I must however add that the bank was not an innocent chargee in the transaction relating to the suit land.
166. The first point of call relates to the title of the suit land. The Agreement in the charge between the parties indicate that the loan was advanced “upon receipt by the bank of the original title….”. As noted earlier, the title of the suit land is “missing in action” in the entire proceedings. The court has already termed the deed of conveyance where Githere and Maara were selling the land to Ruhangi as an illegal and invalid document as there is no explanation as to how public land had reverted back unto Githere and Maara. Thus even as the bank was purporting to advance the loan facility to Ruhangi, there was no security anchored unto the suit property.
167. Secondly, it is noted that the bank obtained a valuation report which indicated that “The plot is graded and used by Wonder joy as a parking area”. In his evidence, Dw3 confirmed that the photographs in their valuation report reflect wonder joy in the back ground and there was a sign “Wonder Joy”. However, according to Dw3, the bank did not find out the circumstances under which Wonder Joy was using the land. This means that the bank was well aware that the land was encumbered in terms of possessory use by another entity and not the alleged registered owner.
168. In the case of Torino Enterprise Limited v Attorney General (Petition 5 (E006) OF 2022) (20230 KESE 79 KLR, the Supreme Court of Kenya had this to say on due diligence in regard to a party who was buying land occupied by the military;
“Therefore, if the appellant was a diligent purchaser, it ought to have at least known of this fact. An innocent purchaser for value would also denote one was aware of what they are purchasing by inspecting the suit premises. This takes us to the question of whether the appellant had visited the suit premises and if so, what was its impression of the military installations on the suit premises? The fact that the suit land was occupied must have sounded a warning of “buyer be aware” to the appellant. We therefore find that it was not an innocent purchaser for value entitled to orders for restoration or compensation.”
169. Similarly, I find that the bank was not a bonafide chargee for value, though its case is one of ignoring the due diligence rather than lack of it.
170. On the value of the suit land, the valuation report proffered by the bank pegged the same at Ksh. 100 million as at 21.9.2011. Ruhangi had allegedly bought the said land at Ksh 6 million 2 months earlier on 8.7.2011. When Dw3 was cross examined on the disparities of the aforementioned figures, he stated that ; “ it didn’t bother me that a property acquired for Ksh 6 million was being valued at Ksh. 100 million”. It is certainly clear that all was not well in the valuation of the property going by the wide disparity of the aforementioned figures.
171. Another point for consideration relates to the amounts disbursed. Dw3 stated that what was actually given to Ruhangi was Ksh. 6.5 million and this is confirmed in the loan statement at page 91 of the bundle of the bank. However, the loan facility as per the charge document is Ksh. 65 million. The question begging for an answer is; The bank was selling the land on the basis of which credit facility? The fact that the bank had embarked on realizing the security yet they had only advanced a small fraction of the same is another indicator of fraudulent dealings between Ruhangi and the bank.
172. Finally, it is noted that the bank has advanced the jurisprudence of the torrence system of registration to buttress their claim that the credit facility was given lawfully, based on registration status of the suit land. However and as noted elsewhere in the body of this judgment, the jurisprudence has shifted to interrogation of the root of the title; See the Supreme Court decisions in; Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment) Neutral citation: [2025] KESC 21 (KLR), Dina Management Limited vs. County Government of Mombasa & 5 Others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR),
This far, the claim of the bank must fail.
The Temporary Occupation Licence (T.O.L) & Lease of the 6th and 7th defendants
173. Wandere’s claim to the suit property is anchored on the T.O.L and lease issued to him by the 5th defendant. Wandere contends that upon purchasing the plots adjacent to the suit property, he applied for a T.O.L in respect of the suit land from the 5th defendant, of which the latter recognized the occupation, investments and improvements made for a period of 4 years, thus on 7.9.2011, the occupation was regularized though the T.O.L. on condition that a lease would be issued for 25 years. In the entire bundle of documents of Wandere running upto 202 pages, i have not come across the document termed as a T.O.L, or the application of the same for that matter. The document which apparently gave Wandere permission to occupy the suit land or recognition of such occupation is the one dated 7.9.2011, and todate, Wandere has been utilizing the suit land. On the lease, there are minutes of the General purpose Committee at page 24 of Wandere’s bundle which reads; “signing of leases; L..NO.27/326/Kiambu road (Wonder Joy)”.
174. Currently the National Land Commission is the entity empowered to manage public land on behalf of the National and County Governments going by the provisions of Article 67 (2) (a) of the Constitution. The primary statute on this subject is the National Land Commission Act which came into force on 2.5.2012. Thus as at the time the 5th defendant was embarking on giving Wandere permission to use the suit land, National Land Commission was not in the picture. The applicable law was the Local Government Act (repealed) which gave local authorities sweeping powers on land acquisition as well as land dealings.
175. The provisions of Section 144 of the said statute (Local Government Act) provided that;
“(1) A local authority may, for the purpose of any of its functions under this or any other written law, by agreement acquire, whether by way of purchase, lease, exchange or gift, any land, whether situate within or without the area of the local authority, notwithstanding that the land is not immediately required for that purpose; and where land is so acquired notwithstanding that it is not immediately required for the purpose for which it was acquired, it may, until so required, be held and used for the purpose of any other functions of the local authority.
(3) Any land belonging to a local authority and not required for the purpose for which it was acquired may, with the approval of the Minister and subject to such conditions as he may think fit to impose, be appropriated for any other purpose for which the local authority is authorised to acquire land
(5) A local authority may let, or grant to any person a licence to occupy, any land which it may possess— (a) with the consent of the Minister for any term; (b) without the consent of the Minister, unless such consent is required by section 177 or by any other written law, for a term not exceeding seven years.”
(6) (2) (a) sell any land which it may possess and which is not required for the purpose for which it was acquired or being used.
(8) Nothing in this section shall authorise the disposal of land by a local authority, whether by sale, lease or exchange, in breach of any trust, covenant or agreement binding upon the local authority” Emphasize added.
176. It is clear that local authorities such as the City Council of Nairobi had the legal mandate under the aforementioned statute to permit occupation of their land. The word “MAY” is constantly used in the cited section of the law denoting permissiveness rather than a mandatory process, which buttresses Dw1’s evidence that the process of issuance of a T.O.L was done administratively.
177. It is noted that the challenge to the T.O.L. was made by the plaintiffs in Elc 870 of 2016, but as noted earlier, no evidence was adduced in respect of the said suit. Thus as the matter stands, there is no adequate evidence to impeach the occupation of the suit land by Wandere through the permission granted by the County.
178. That notwithstanding, it is quite apparent that the issue of public trust was a feature in the land dealings by a local authority in the aforementioned statute. The position still holds todate under the current legal regime in land matters. Thus permitting Wandere to use the land for years on the basis of permission adversely affects the fiduciary relationship that the 5th defendant has with the residents.
179. On the lease issued unto Wandere, Dw4 has rightly stated that the same is a registrable document. It is the precursor to a title, thus the same is a gateway to acquisition of rights of proprietorship in land. Wandere was purportedly granted a lease by the County. However, I did not come across any provision of the law and none was cited which allowed the crystallization of a licence or permission to occupy land into a lease which would in essence elevate the status of Wandere to an owner of the suit land. In that regard, any lease given by the County to Wandere is hereby termed as illegal and invalid. Thus Wandere has no proprietary interests in the suit land despite the permission given to him by the county to occupy the suit land.
The claim of the 5th defendant
180. The messy litigation saga has by and large been fuelled by the 5th defendant, who happens to be the lawful owner of the suit land. This is the entity which was purporting to alienate the land to both Ruhangi and Wandere and even imposing rates and other charges to both parties. In the Court of Appeal case of Chemey Investment Limited v Attorney General & 2 others [2018] eKLR, the opening statement reads as follows;
“There was a time in the history of this country, not too long ago, when public officers appeared to have been bitten by a bug that infested them with a malignant and shameless craving to acquire for themselves, their friends or relatives, public property in respect of which they were trustees or custodians”.
181. This is the scenario in the case of public officers of the 5th defendant who were entrusted to guard the subject land “in those days”, but failed to do so. There is no evidence to indicate that the public need for a nursery school was satisfied, there is no word from the 5th defendant as to whether it still needs the land. Thus the manner in which the 5th defendant is dealing with the said land can be challenged even if it is the owner of the suit land.
182. As I conclude, the court desists from delving into the cited criminal proceedings for the reason that this is an Environment and Land Court where proceedings are civil in nature. The criminal proceedings run independently of the civil process. Similarly, the proceedings (if any) undertaken by the County Assembly of the 5th defendant and the National Land Commission have no bearing in this suit as no parallel proceedings could certainly be legally undertaken when the case was ongoing before this court.
RENDITION
183. This court hereby delivers judgment in the following terms;
a) The counterclaim of the 5th defendant is hereby allowed such that; An order is hereby issued declaring the 5th defendant as the legal owner of parcel Land Reference Number 27/326.
b) An order is hereby issued declaring that CATHERINE KIBUI MBURU, GEORGE JONATHAN MAARA, JOHN PETER KAMAU RUHANGI, GUMCHEM KENYA LIMITED, PARAMOUNT UNIVERSAL BANK LIMITED, WONDERJOY PARTY LIMITED AND ISAAC MAINA WANDERE do not have any proprietary interests in the land parcel L.R. 27/326.
c) The permission to occupy the suit land given to the 6th defendant by the 5th defendant can continue until the unholy alliance between the two entities is properly and legally challenged.
d) An order is hereby issued declaring that the registration of parcel L.R. 27/326 in the name of John Peter Kamau Ruhangi is illegal, null and void and the said registration is hereby cancelled.
e) An order hereby issued for the cancellation of any title document or indenture of conveyance or any entries made at the Lands Registry stating that David Mburu Githere, George Jonathan Maara, John Peter Kamau Ruhangi and Gumchem Limited have any interest in the parcel of Land Reference Number 27/326.
f) An order is hereby issued for the rectification of the title document and entries at the Land Registry so as to reflect the registration of parcel L.R 27/326 in favour of the 5th defendant, the NAIROBI CITY COUNTY.
g) All transactions relating to the charge for parcel 27/326 including the purported sale of the said land L.R 27/326 between John Peter Kamau Ruhangi and Paramount Universal Bank Limited are declared to be illegal and invalid.
h) On costs, I find that all parties herein are crooked, with varying degrees of crookedness. I therefore direct each party shall bear their own costs of the suit.
DATED, SIGNED AND DELIVERED AT NANYUKI THIS 25TH DAY OF MARCH 2026 THROUGH MICROSOFT TEAMS.
LUCY N. MBUGUA
JUDGE
In the presence of:
James Njengo for 1st and 2nd defendants.
Njanjwa for 3rd and 4th defendants
Kirimi for 6th and 7th defendants
Nyauchi for 5th defendant (muted)
Nancy Mwangi – Court Assistant
| Page 106 of 107ELC 748 OF 2013 |