DHANJI JADRA RAMJI VS COMMISSIONER OF PRISONS AND ATTORNEY GENERAL

2.    The 2nd Defendant filed an Amended Statement of Defence and Counterclaim dated 7th July, 1999,  where it denied the contents of the Plaint and sought  the following orders:

3.    PW1, Gibson Wahome Werugia, a licensed Land Surveyor trading as Wahome Werugia Licensed Land Surveyors, testified that he used to be a Government Surveyor and had been instructed by the plaintiff to identify LR No. 452/1/4 as compared to parcel No. 514 in Block 21, whereby he discharged his mandate.

4.    He further testified that Plot No. 452/1 was more than 300 acres and that it had been subdivided into 4 portions.  It was his testimony that he got the Registry Index Map (RIM)  for Block 21 and stated  that the two plots 452/1/4 and 514 were separated by a road.  Further,  plot No. 514 had never been part of LR No. 452/1/4.

5.    According to PW1 Parcel No. IR (Block 21) was created as a result of the subdivision of 451/1/4, and that FR No. 110/118 referred to parcel No. 112 as Government land, which was a result of the conversion  from RTA to RLA. Mr Werugia told the court that he had established the extent of prison land and that there  was no connection between LR No.  514 and 112.  It was his evidence that FR 26/146  was referred to as part of Nakuru Township Reserve and that the parcels only converged upon conversion into Block 21. PW1 testified that 452/2/15, 452/2/14, 452/2/23 are  parcels that surrounded the land formerly known as LR.452/1/4 and  produced the maps from Survey of Kenya as PExh.1A, 1B, and 1C and the Report as PExh. 1(D).

6.    Upon cross-examination by Ms. Shirika,  PW1  confirmed that he visited the land but that there was no physical road in between the parcels on the ground.  He stated that the road was encroached upon and that  LR. No. 452/1/4 was subdivided, and the Gazette was published in 1961.

7.    He was referred to page 91 of the RIM in the  plaintiff’s bundle  and confirmed that there was a road between 514 and 112.  He stated that his job was to establish whether LR No.  514 fell into 452/1/4 and confirmed that the land fell on parcel No. 514 on the right side of Kirinyaga Road.  He further stated that   Parcel No.  514 has never been part of LR No. 452/1/4 and that he  did not know the owner.

8.    PW1 was referred to the original map, PExh. 1A, where he confirmed that the area of 452/1/4 was authorized and that Nakuru Township Reserve bordered LR.  No. 452/1/4 and Menengai Estate, whereby the  reserve was LR. No. 451 and that  LR. No.  452/1/4  measured  628 acres.

9.    On re-examination, he stated that there was a relationship since LR No.  514 sat on the side where 451 was on the map. He further stated that there was a grid line on the map, which  was not a boundary but for drawing the map. PW1 was shown the Gazette Notice at   page 49 of the plaintiff’s bundle, where he confirmed that the same had nothing to do with the land but only the buildings.

10.    PW2, Charles Muigai Kariuki, a Valuer/Building Surveyor since 1983, and  produced the original Report as PExh.1E.

11.    Upon cross-examination, PW2 stated   that he could not tell the origin of  the  parcel of land,  admitted having not seen the boundaries, but was  shown around by the caretaker.   It was his evidence that  the property was adjacent to the prison, but there was no road between the parcel and the prison. PW2 clarified to the court that there was a road between plot  No. 882 and  No.  112, but that the road was not indicated on the map. He stated that the land above plot No. 514 should be prison land since it had a prison fence.

12.    PW3 Dhanja Jadra Ranji adopted his witness statement dated 4th August, 2021,  together with his list of documents dated 30th January, 2021, which  he produced as  Pex. No. 1 to 13.  It was his testimony that he had applied for allocation of the suit land and was issued an allotment letter.   He also stated that  he paid the requisite fees and was issued with a Certificate of Lease  and took possession  but the Defendant trespassed in 1988.  It was his testimony that the allotment letter was in the name of Prudential Construction Company Ltd, but the lease was in his name.

13.    He further testified that the prison authorities got onto his land and claimed  the same  as the plot  was  600 meters  from the prison land.  It was his evidence that he built go-downs, which the 1st Defendant never complained of and that the  1st Defendant wrote a letter at page 73 where they had proposed an extension of the prison and suggested that he be given an alternative land, of which he did not agree to the proposal.

14.     According to PW3, he engaged a surveyor who did a report stating that the plots were different and distinct. He further testified that the gazette notice dated 22nd June, 2016, was for the establishment of the prison and not for his parcel of land.

15.    On cross-examination, PW3 confirmed that he had been issued with an allotment letter together with a lease certificate for land measuring 2.006 hectares. He confirmed that his plot was No. 451, having been excised from Plot No. 452/1/4. PW3 denied that the land was prison land and added that there was a 6-meter road between his plot and prison land.  He also stated that the 1st Defendant built a timber house after he had taken possession and that the  Regional Commander’s house was outside his plot.

16.    Upon re-examination, PW3 stated that the allotment letter stated the approximate area, that the difference was 006 hectares, and that the  surveyor’s map gave the history of the land.

17.    DW1, Peter Wanyama, the Regional Surveyor, Rift Valley, produced documents in respect of parcel No. Nakuru Municipality Block 21/514 contained in Survey Plan Folio No. 234 registration No. 37. He further produced the documents for  the  parcel of land known as LR No. 452/1/4 survey plan, Folio No. 26 register No. 146, and the RIM for Nakuru Municipality Block 21 as Exhibits Nos. 14a, b & c.

18.    Upon cross-examination by Mr. Kahiga, he confirmed that for the survey plan Folio No. 234, Register No. 37. (14 ‘a’) The acreage was 2.006 Hectares, which plot  existed  in the survey department records.   He further stated that  every plan folio No. 26 Register No. 146 (14 ‘b’) related to LR No. 482/1/4 which measured 628 acres, was land from Nakuru GK Prison.

19.    DW1 admitted that from the maps, he could not tell whether Plot No. 514 formed part of the Prison land, and from  its presentation, it did not appear to be part of the Prison Land. He confirmed that the RIM for Block 21 showed the existence of plot No. 514, and there was  an access road that separated plot No. 514 and the parcels of land.

20.    DW1 was referred to the Survey Report  by Mr. Werugia, PW1,  and stated that  parcel No. Nakuru Municipality Block 21/514 has neither  been part of LR No. 452 nor 452/1/4 as described in the Gazette Notice.

21.    On cross-examination by Ms. Shirika, he stated that the Director of Land Administration was well placed to discuss the origin of the parcel.

22.    DW2, Sammy Okwaro Miyeya adopted his witness statement dated 25th July, 2025,  as his evidence in chief, and stated that he was an Assistant Director  and a Physical Planner in Nakuru, South Rift Region.  He was  referred to page 18 of the Plaintiff’s trial bundle, and testified that the PDP was not from their office since it did not have a PDP reference number. He further testified that it  neither had the  name of the person who prepared it nor the use or scale of the land.

23.    He testified that they prepare PDPs when given  authority to prepare by the National Land Commission, and an allotment letter could not be issued without a PDP from their office.

24.    Upon cross-examination by Mr. Kahiga, he stated that he was transferred to Nakuru in 2012, and that he had not  received any witness summons to give evidence. He stated that he had been instructed to give evidence on the process of preparing the PDP and that he  was giving evidence on behalf of the Defendant and as an expert witness. He admitted that he had not attached his professional qualification or the status of his expertise.   He told the court that there was communication between the department and the Commissioner of Lands when there was an allocation.  When referred to page 18 of the documents, he  stated that the allotment letter had a reference number, though faint, and that it had a correlation with the one on the PDP.

25.     It was his evidence that  there was no forensic report prepared on the PDP, and that  he had not come across  any correspondence that the PDP was irregular.  Further, he had not written any letter or complaint that there was an error and that the issue was never escalated to the Commissioner of Lands.

26.    He referred to page 108 – from the survey office, where he stated that the conclusion was correct, as there was no  correlation with parcel number 514, and that he had not visited the suit land.

27.    Counsel for the Plaintiff filed submissions dated 7th November, 2025,  and identified the following issues for determination:

28.    On the first issue, counsel submitted  that the  Plaintiff was allocated the suit property Nakuru/Municipality Block 21/514 by the Commissioner of Lands vide a letter of allotment dated 10th April  1991, after he had made an application for allotment It was his submission that the suit land was located approximately 600m from the Nakuru G.K Prison, measuring approximately 2.006 Hectares  for a term of 99 years.

29.     Mr Kahiga further submitted that the  Plaintiff paid the requisite fees and was issued with a Certificate of Lease, took possession and constructed go-downs in 1998,  but the 1st Defendant alleged that the said property belonged to Nakuru G.K Prisons and proceeded to encroach into the suit land. Counsel submitted that the RIM showed that the suit land was not located inside the prison but next to it, with a boundary of about 600m separating the two parcels.

30.    It was  counsel’s   submission that the Defendants’ witness, Samuel Okwaro (DW2) brought up novel issues relating to the PDP which were not pleaded in their Amended Defence and Counterclaim. He relied on the case of Independent Electoral and Boundaries Commission & Another V Stephen Mutinda Mule & 3 Others (2014) eKLR, which cited with approval the Supreme Court case in Nigeria in Adetoun Oladeju (NIG) V Nigeria Breweries PLC SC 91/2002.

31.    He submitted that the witness never produced a PDP that was in the correct format, despite alleging that the Plaintiff’s allotment letter had a PDP that did not emanate from their office and  cited Sections 107 and 109 of the Evidence Act.

32.    Counsel submitted that the Defendants did not adduce any evidence to show that the Plaintiff’s allotment of the suit land was obtained through fraud, misrepresentation, or illegal, unprocedural means. He further submits that the Plaintiff was a bona fide owner of the suit property and relied on Section 24(a) and 26 of the Land Registration Act. He also relied on the case of Kamoye V Tipango & 2 Others (2024) KEELC 4227 (KLR)

33.    On the second issue  as to whether the 1st Defendant trespassed on the suit land, counsel submitted that the Plaintiff has adduced evidence to show that he was allocated the suit land, which does not form part of prison land, hence the 1st Defendant is a trespasser as they entered the suit land without the Plaintiff’s permission. Counsel  relied on the cases of Kenya Power & Lighting Company Limited V Fleetwood Enterprises Limited [2017] eKLR and Chief Land Registrar & 4 Others V Nathan Tirop Koech & 4 Others [2018] eKLR, John Kiragu Kimani Vs. Rural Electrification Authority [2018]eKLR,

34.    On the third issue, counsel relied on Section 16 of the Government Proceedings Act and submitted  that the Plaintiff is the legal owner of the suit land and that the Defendants have infringed upon his rights. He submitted that the Plaintiff was therefore entitled to an order of permanent injunction restraining the Defendants from use and occupation of the suit parcel.

35.    On the fourth issue, counsel submitted that the Defendants being trespassers, an order of eviction ought to issue to protect the Plaintiff’s rights, and  relied on the case of Mariko Ndwiga V Edith Muthanje [2020] eKLR.

36.    On the final issue of costs, counsel relied on the case of Orix Oil Limited V Paul Kabeu (2014) eKLR and submitted that the Plaintiff, having proved that he is entitled to the reliefs sought, is equally entitled to the costs of the suit.

37.     The Defendants were given an opportunity to file their submissions, but they never did.

38.     I have considered the pleadings, the evidence on record, and find that the issues for determination that emanate from the above are as follows:

39.    It is unfortunate that this case has been in court for more than 27 years. The court also notes that it has had a checkered history, which shows that it had proceeded ex parte in 2001 and a Judgment delivered in favour of the Plaintiff which was later  set aside by  the  Court of Appeal   who and ordered that the matter be heard afresh. The same was heard and a Judgment delivered on 13th October 2011, where the Judge dismissed the Plaintiff’s case. The Plaintiff, being aggrieved, filed an appeal to the Court of Appeal. The Court of Appeal heard the Appeal and issued orders on 13th May 2020 directing that the matter be heard afresh.

40.     From the pleadings, the documentary and the oral evidence, the Plaintiff laid down how he acquired the suit land through an application for allotment of a plot.  The Plaintiff further told the court that he was allotted the suit plot  parcel No. Nakuru/Municipality Block 21/514, vide Allotment letter dated 10th April, 1991. It was his case that  he was issued with an allotment letter and later with a  Certificate of Lease on 20th September, 1995. It is the Plaintiff’s case that he met the requirements stipulated in the allotment letter and  followed the due process in acquiring the  suit land. The Plaintiff produced the documents as exhibits before the court.

41.    The  1st Defendant claimed that the suit land belonged to Nakuru G K Prison as it had been gazetted as such vide Legal Notice No 371 of 1961. This led to the Plaintiff instructing his lawyers to write a demand letter dated 2nd May 1998,   on the encroachment on the suit land.  It is on record that the Provincial Prisons Commander, Rift Valley Province, responded to the Plaintiff’s letter vide a letter dated 18th May, 1998,  as follows:

42.     The RIM, the  Survey  Report, and the evidence from the Plaintiff and the Defence witnesses  debunked  this notion that the suit land was part of the prison land. The evidence from the maps and the Surveyor and DW2 shows that the Prison land and the suit land are distinct and separate from each other, ostensibly  600 meters apart. There was no evidence to suggest that the land fell within the prison land. The letter by the Provincial Prison Commander suggested that the prison needed an extension of the prison land but did not confirm that the land belonged to the Nakuru G K prison. They only had a desire to extend the land as it was near their land.  There was no evidence of any response from the Commissioner of Lands to actualize the correction of the supposed error as per the Provincial Prison Commander.

43.    There are elaborate procedures laid down for the acquisition of private land for a public purpose through compulsory acquisition. If the prison desired to acquire  this land to be part of the prison land for a public purpose,   then  why did they not engage the  relevant institutions to trigger the process of compulsory acquisition with compensation to the owner of the private land? By the time of allocation of the land by the Commissioner of Lands, this land was vacant, and that is why the Plaintiff took possession and built go-downs as was shown in the photographs produced by  PW1. The 1st Defendant was not in occupation of the suit land.

44.    The Defendants also claimed that the land had been  reserved as prison land vide a  Legal Notice No  371 of 1961 which was produced  by the Plaintiff, which stated as follows:

“In exercise of the powers conferred by section 3 of the Prison’s  Ordinance and delegated to the Permanent Secretary for defence , the Permanent Secretary for Defence hereby declares:

45.      The legal Notice No. 371 of 1961 which the Defendant hinged its counterclaim on  specifically  declares that the prison camp buildings situate on Plot No L R. No. 452/1/4 to be prisons, which is indicative of  what was declared as prisons.  As earlier stated and admitted  by the defence witness that   L R No 452/1/4 is distinct from the suit land plot No  514. The legal Notice also declared prison camp buildings on Plot No L R No 452/1/4 as prisons and it should be noted that Plot No. 514 was vacant when the plaintiff took possession; therefore, no buildings could have been declared to be a prison camp.

46.    It is instructive to look at the   Survey Report  produced in court as Pex No. 1 D, which  gave an elaborate description and history  of the suit land together with the prison land, attaching the maps and survey plans.  The conclusion was as follows:

47.     The Regional Surveyor gave evidence on behalf of the Defendant and stated that the suit land has never been part of LR No 452 or 452/1/4 as described in the Gazette Notice.

48.    The Defendants’ witness Samuel Okwaro’s testimony was on the issuance of PDPs and stated that the Plaintiff’s PDP did not originate from their office, which issue had neither been raised in the pleadings nor structured in the examination in chief. He later admitted that there was a reference number that was similar to the one on the allotment letter Ref. no. 30884/XXX1/11 and therefore was in compliance with  the legal and procedural requirements of acquisition of land.

49.    In the case of  ROSEMARY WANJIRU NJIRANI vs. OFFICER IN CHARGE OF STATION, MOLO POLICE STATION & ANOTHER (2017) eKLR the court held that:

50.    Further, at paragraph 20 of the above  Judgment,  further held that:

“Various cases were referred to me by counsel for the respondent and I have looked at them, but the same are clearly distinguishable from the circumstances of this case. In the case of Norbixin Kenya Limited vs Attorney General (supra), there was also a dispute as to whether the land in issue was police station land. In that case, the Attorney General produced a development plan No. 309,  which recognized the existence of a police station on the suit property. There had also been two allotment letters, one issued to the police, and the other to the plaintiff’s predecessors in title. The court held that there was evidence that the land had been planned and reserved for use as a police station. I do not have such evidence in this case, in that no PDP was produced, and no allotment letter or document of title in favour of the police station, was tendered. In the case of Nelson Kazungu Chai & 9 Others vs Pwani University (supra), the issue was whether certain land belonged to the individual plaintiffs or to the defendant which is a public university. Evidence was tendered that the land had been reserved for public use and affirmed as such through a PDP. The same was the position in the case of Henry Muthee Kathurima vs Commissioner of Lands & Others where the question was whether certain land had been reserved for use by the National Youth Service. In the suit, there was produced a PDP No. 167 /89/8 to demonstrate that the land was indeed reserved for use by the Service. This is not what we have in this suit. There is no document whatsoever, whether in the form of a PDP, or survey map, or indeed anything, to show that the suit land was ever part of the land belonging to the Molo Police Station. In fact, I have no evidence to inform me of what the police station land is, or how big it measures. For a court to cancel a title, it must be fully convinced that such title is a bad title that cannot be protected. A court cannot cancel a title on the mere statement, without anything more, that the land comprised therein is public land".

51.     I agree with the reasoning in the above case, as it is similar to this case. No evidence was brought forth to demonstrate that the suit land was part of the land reserved for the prison or that the acquisition of the land fell short of the required standards, hence tainted.

52.      The court is cognizant of the provisions of the  Government Lands Act  Cap 280,  which stipulates the procedures of acquisition or alienation of government land.  The Act gave the Commissioner of Lands power to allocate ‘unalienated Government land and also provided the  procedure for the same.  Unalienated Government land is defined in the Act as: ‘Government land which is not for the time being leased to any other person, or in respect of which the Commissioner had not issued any letter of allotment.’

53.    Section 7 of the Government Lands Act provided  that:

54.    The foregoing Section clearly limited the power of the Commissioner of Lands to execute leases on behalf of the President and that it is the  President who had sole discretion to alienate unalienated Government land under Section 3 of the Government Lands Act.

55.    Having found that the suit land was not part of prison land, it follows that the Plaintiff is entitled to an order of eviction of the 1st Defendant from the suit land, as it entered the same unlawfully.

56.    On the issue whether the Plaintiff is  entitled to an order of a permanent injunction, in the case of  Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR where the court held as  follows:

57.    Section 24 of the Land Registration Act provides that subject thereto:—

58.    Section 25 of the Land Registration Act states as follows:-

59.    Section 26 states as follows;-

“(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all Courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

60.     The Plaintiff, having proved that he is the legal owner of the suit land, is therefore entitled to partial orders sought in the Plaint together with costs. The Plaintiff has been in court for over 27 years seeking justice for a declaration that he is the rightful owner of the suit land.  The Defendant made it difficult for him to enjoy peaceful occupation of the suit land by the act of trespass. The Plaintiff sought general damages and mesne profits.

61.    Mesne profit is  a special damage which must be specifically pleaded and specifically proved.  Although the  plaintiff pleaded  mesne profits  in the plaint, he neither specifically pleaded the amounts he was claiming nor led evidence to prove as required. The court cannot conjure figures from the blues to award the plaintiff.

62.    In the case of Luva v Kimbio & 3 others [2023] KEELC 16462 (KLR),    the court held as follows:

63.     Similarly, in  the  case of Karanja Mbugua & another v Marybin Holding Co. Ltd [2014] eKLR  Nyamweya J stated as follows with regard to mesne profits:-

64.     As to the claim for general damages, it is trite law that trespass is the act of unauthorized and unjustifiable entry upon the land in another’s possession.  Trespass is  actionable per se, regardless of the extent of the incursion and without any necessary showing of injury or damage to the claimant. The moment trespass is proved, then you do not need  to show the injury or damage that has been caused to you.  In the case of  Park Towers Ltd V John Mithamo Njika and 7 Others 2014 eKLR where Mutungi J stated as follows:

“I agree with the learned judges that where trespass is proved a party need not prove that he suffered any specific damage or loss to be awarded general damages. The court in such circumstances is under a duty to assess the damages awardable depending on the unique circumstances of each case”

65.    Further, in the case of Duncan Nderitu Ndegwa V Kenya Power and Lighting Company Limited & Another (2013) eKLR Nyamweya J held that once trespass to land is established, it is actionable per se and indeed no proof of damage is necessary.  I therefore consider an award of Kshs. 10,000,000/  (Ten  Million Shillings only)to be adequate compensation for the defendant’s infringement of the plaintiff’s right to use and enjoy his land for more than 27 years.

66.    I have considered the pleadings, the evidence of the parties, the submissions by counsel and the relevant judicial authorities and find that the Plaintiff has proved his case on  a balance of probabilities and give the following specific orders: