Introduction
The Plaintiff commenced this suit vide an amended plaint dated 30th October, 2018 against the 1st Defendant
seeking the following orders:
a) An order that he is the lawful lessee from the government of all that plot known as Nakuru Municipality Block 17/16 and the Defendant has no right or title at all over the same.
b) A permanent injunction restraining the Defendant by himself, servants and or agents from interfering with the Plaintiffs lease and possession of the above plot.
c) An order of eviction or vacant possession.
d) Mesne profits of Kshs. 26,050, 987/=
e) Mesne profits accumulated from the year 2018 up to the date of delivery of judgment in this matter.
f) Valuation costs of Kshs. 307,400/=
g) Costs of this suit and interest.
The 1st Defendant filed his amended defence and counterclaim on 20th November, 2018 where he denied the claims in the amended plaint. He sought for the following orders:
a) Declaration that the defendant now the plaintiff is the bonafide owner of the Land Title No. Nakuru Municipality Block 17/61 and the subdivisions being:
i. Nakuru Municipality Block 17/762
ii. Nakuru Municipality Block 17/763
iii. Nakuru Municipality Block 17/764
iv. Nakuru Municipality Block 17/765
v. Nakuru Municipality Block 17/766
vi. Nakuru Municipality Block 17/767
vii. Nakuru Municipality Block 17/768
b) A permanent injunction restraining the Plaintiff (Defendant in the Counterclaim) from invading, trespassing, alienating, disposing off, charging or whatsoever interfering with the Defendant’s now Plaintiff’s land parcel numbers aforesaid.
c) Costs.
Plaintiffs’ Case
Gideon Kiptarus Toroitich testified as PW1 where he produced his witness statement dated 26th July, 2018. He testified that he was present on behalf of the Plaintiff by virtue of a specific Power of Attorney dated 11th March, 2019 and registered on 13th March, 2019. He produced the Power of Attorney and receipt which was marked as MFI “1a &b”. He also produced 3 sets of documents dated 6th August, 2013, 14th December, 2017 and 30th October 2018 as PEX1, 2 and 3 as bundle as numbered. He also produced his list of documents filed on 21st July, 2020. He testified that the Plaintiff called him in 2012 and requested him to confirm that he had received the title. He further testified that the Plaintiff informed him that he had given Stephen Chumo a discharge to process registration on his behalf. He went on to testify that the title looked too new but still kept it. He testified that sometime in 2013, the Plaintiff informed him that somebody had encroached onto his land. He testified that he confirmed at the site that there was a hotel (Capital Hill) next to the plot.
He testified that the Plaintiff instructed a lawyer to obtain a restraint order after which he liaised with Ikua advocate who filed a suit. He further testified that through a letter he sought the National Land Commission to verify ownership of land parcel Nakuru municipality 17/61. He testified that the Plaintiff lodged investigations with the DCI after which the third party was charged with fraud relating to the suit property. PW1 was referred to the certificate of lease in respect of Nakuru Municipality/Block 17/61 in the Plaintiff’s name where he confirmed that the lease was dated 16th November, 1990. He testified that land rent collections record from 1991 to 2001 showed the Plaintiff as the owner.
Upon cross examination by Karanja for the Defendant, he stated that he signed the statement on 26th July, 2019 and that the power of Attorney was registered on 9th July, 2020. He stated that the power of Attorney was not registered at the time he did the statement. He further stated that the land was allocated to the Plaintiff in 1990. He admitted that he did not have the allotment letter or any application. He also admitted that he did not have the certificate of lease in court. He confirmed that he paid the rent after the discharge of charge in 2012. He also confirmed that he never paid any rent as the title was under charge. He admitted that he did not have the discharge. He stated that the land was discharged at Citi- Finance which was under liquidation. He admitted that he never did any search and added that the title was charged. He stated that after registration they discovered other parcel titles. He further stated that there was a parallel title registered earlier than the one for 12th September, 1989. He stated that the title was in the name of Jimmy Musyoka Sila. He confirmed that he never used the land though it was fenced. He further confirmed that he never developed the land and that no one ever chased them from the land. He stated that the Defendant was not in possession. He further stated that he paid rent to National Government and the Municipal council of Nakuru. He added that the Defendant’s title was revoked. He also stated that he was in possession and that they had received a letter from NLC confirming that they owned the land
PWI was referred to the green card where he stated that the same was expunged. He further stated that they had complained to the DCI where the third party was arrested and charged. He stated that the 1st Defendant was never arrested nor charged. He stated that the third party committed the fraud and not the 1st Defendant. He admitted that they had not sued the third party. PW1 was referred to the sale agreement at page 90 and the consent at Page 99 where he confirmed that the Defendant bought the suit property from the third party. He admitted that despite the charge registered on the 23rd January, 1991 he did not have any evidence of a loan. He also stated that he got the presentation book from lands after he applied. He admitted that he did not have the application. He also stated that the investigating officer applied for the presentation book.
Upon cross examination by Wanjeri for the 1st and 3rd Defendants, PW1 stated that he complained against the land registrar who transferred their land to 3rd parties. He stated that they have not sued the Land Registrar.
On re-examination, he stated that when he filed the case, the title was in the 1st Defendant’s name. He also stated that the charge had regulation at page 133. He stated that there was an entry for charge with no charges. He further stated that there was a status quo order on 21st November, 2023. He stated that the Plaintiff later applied for subdivision. That marked the close of the Plaintiff’s case.
Defendant’s case
Jayen Motichand Dodhia testified as DW1 where his statement dated 3rd December, 2020 and list of documents filed on 9th December, 2020 and 7th October, 2023 marked as DEX1-DEX14 was adopted as his evidence in chief. He testified that he resides in section 58 Nakuru and that the suit land is Nakuru Municipality Block 17/61. It was his testimony that he bought the property after being approached by Mr. Mwiko. He testified that upon doing the search he noticed a restriction in the title and informed Mr. Mwiko. He testified that they met the seller, the third party who told him that the restriction was on his instruction to the Land Registrar. He testified that that they then met with the District Land Registrar who told him that there was no issue as the restriction was by the third party. He testified that he was shown a copy of the title in the third party’s name. He further testified that Mr Nyanduka gave him the go ahead after which they signed the agreement in 2009. He testified that he paid stamp duty. He added that there was caveat but the title was transferred to his name and the restriction removed. It was his testimony that he subdivided the land into 7 portions between 2009 and 2012. He testified that as soon as he got the title, he erected a wall. He testified that he was going to build 7 maisonettes but was stopped from constructing. He testified that no one complained between 2009 and 2013 and that currently the land was vacant with no activity. He testified that the Plaintiff claimed the land and that he had been reissued with the title. DW1 testified that their title was entered Jimmy Sila for 1989 and Gideon Moi 1990. He further testified that the statement from the Land Registrar stated that both titles were issued by the government and were genuine. He testified that the 2nd green card was not available when he bought the suit land. He added that there was a letter by the National Land Commission that requested the Land Registrar to expunge his title from record. He testified that he land was valued at Kshs.70,000,000/= in 2013 and Kshs100,000,000/= in 2018. He further testified he did valuation in 2021, and that it was Kshs. 138,000,000. He urged the court to confirm his title and in the alternative if the Plaintiff’s title is confirmed he be compensated. He stated that he did not know why the title was re-issued.
Upon cross examination by Ogola for the Plaintiff, DW1 confirmed that the third party sold him the suit land. He confirmed that there was a restriction after the first search. He stated that he was satisfied with the search conducted by Mwiko and Kakai. He further stated that his title emanated from the third party’s title. He confirmed that the third party was charged for having fraudulently sold the suit land. He further confirmed that he was not aware of the court outcome. He stated that he had recorded a statement at CID as there was a case against the third party. He stated that his title was genuine while the Plaintiff’s was fake as it was fraudulently obtained. He admitted that he did not have any document which showed that the third party placed any restriction. He went on to state that the Commissioner of Lands found there was supposed fraud. He stated that the third party had the titles and added that he did not have a copy of the cancelled title. He further stated that the 1st agreement was on 20th August, 2009 and that there was restriction on the title. He also stated that the land was sold free of encumbrances and the agreement was dated 1st August, 2009. He added that he was aware of the restriction and a subsequent encumbrance. He also stated that the agreement was reviewed on 5th October, 2009. He stated that he was not sure whether the procedure for removal of restriction was followed. He went on to state that on 16th November, 1990 a leave was presented for registration in the Plaintiff’s name.
He confirmed that he did not have any documents until Jimmy Musyoka was issued with a lease in 1989. He further confirmed that the third party’s title was issued on 12th January, 2000. He added that there was no entry of the third party’s title in the presentation book. He also stated that he was not aware of the registrar testified that the third party’s title was fraudulent. He stated that he bought the property and took possession. He also stated that the land was subdivided and that there were new files. He stated that in 2020, he took possession of the land and was currently in possession.
Upon cross examination by Ochang for the 3rd Plaintiff, DW1 stated that he did due diligence and later purchased the land from the third party. He admitted that there was a restriction placed by the third party. He stated that he had sought clarification from the third party, the Land Registrar and Mr Nyatika. He stated that he had visited the Land Registrar’s office and that he had no reason to doubt the explanation given by the Land registrar. He further stated that the previous owner was Mr Jimmy Musyoka Sila and that no one questioned his title. He confirmed that he had done a search at Nakuru Land office and he took possession. He added that there was nothing owing to the third party. He also stated that he had been paying land rates. He further stated that their lawyer did the transfer and land was smoothly transferred. He added that the property had title and that all the documents were in the third party’s name. He stated that the Plaintiff’s title was issued in 2012. He also stated that he was informed that the National Land Commission advised the land Registrar to expunge his document but he had not been invited to a hearing. He stated that Mr Nyatika had dealt with the issue and that he did not know how the restriction was removed. He stated that the third party placed and later removed the restriction. He further stated that his claim was against the Land Registrar.
DW1 stated that he was approached by an agent who showed him the land. He stated that he did a search on 5th June, 2009 and purchased the property on 1st August, 2009. He stated that there was a restriction entered on 5th January, 2009. He further stated that he bought the property since the restriction was placed by the vendor. He added that the Land Registrar had placed a restriction and that he only had the title. He stated that he purchased the property with the restriction but that it was to be removed to pave way for transfer. He stated that he paid the purchase price and that the balance was 5.5 million.
He went on to state that he was not aware of any issue and that the restriction was released on 1st June, 2009. He admitted that he did not know that the Plaintiff was the owner of the property. He stated that after subdivision, they did not have the new leases. He stated that he was an innocent purchaser and that the restriction was removed by the Land Registrar. He added that the restriction was placed on 5th January, 2009 and removed on 6th October, 2009. He also stated that he had placed a restriction on 27th April, 2010. He stated that Mr. Nyatika ensured removal of the restriction. He further stated that he was aware that the land was available and that he had no claim against the third party.
Upon re-examination, he stated that the restriction had been placed by the third party and was removed by the District Land Registrar. He further stated that if the District Land Registrar had not given him a go ahead, he could not have proceeded with the transactions. He added that he had requested the registrar to place a restriction on the land so as to protect it from Land grabbing. He also stated that the 2nd green card was never brought his attention. He admitted that he had not gone for presentation book and that the clearance documents were obtained. He stated that he was in possession between 2001 and 2013 and there was no claim on the land by the Plaintiff. He added that the court-maintained the status quo. He stated that he blamed the land registrar but also confirmed that he had never gone to the land’s offices. He also stated that the documents were expunged when he sued them. DW1 was recalled where he stated that his agent was Mr. Peter Njoroge. Mr Mwikohad recorded a statement on 20th November, 2018. He produced the statement as DEX 14.
Jane Gitari the Land Registrar Nakuru testified as DW2. She testified that she had received a letter from the Attorney General dated 29th April, 2024 which required him to testify. She testified that the suit property was Nakuru Municipality Block 17/61 with the white card opened on 12th June, 1989. She also testified that she had the waiting card opened on 16th November, 1990 and the lease document registered on the same date. She further testified that the charge document was registered on 23rd January, 1991 and a discharge of charge on 5th November, 2014. She added that the third party gave her the valuation report, letter of consent and rent clearance certificate from the municipal council of Nakuru. It was her testimony that the National Land Commission investigated the matter and found that the Plaintiff’s allotment was valid. She testified that 1st Defendant’s records were expunged. She went on to testify that there was a restriction on 5th January, 2009 while the lease was dated 16th November, 1990. She produced certified copies of documents as a bundle 1st and 3rd DEX 1.
Upon cross examination by Ogola, she stated that she had received a lease document from the chief Land Registrar dated 16th November, 1990. She explained that when a lease document was received, payment should have been made after which the Land Registrar receives the document and causes it to be executed. She went on to explain that an entry is then made in a presentation book. She stated that from the presentation book, the document was received on 16th November, 1990. She stated that a lease document must be entered in the presentation book. DW2 stated that she did not find any lease registered under Jimmy Musyoki Sila. She further stated that she had the cards for 1989 and 1990 and that she needed to consult on the presentation book.
She confirmed that it was possible to open a register with the lease. She further confirmed that she needed to check the presentation book for 12th September, 1989. She stated that the documents she had, came from one parcel file which did not have any documents produced by Jimmy Musyoki Sila. She further stated that there were no transfer documents duly executed, charges for rates and rent nor any valuation form. She added that there were no receipts for payment or consent from the Commissioner of Lands. She stated that the agreement was not required for transfer. She also stated that there was a requirement for cancellation of certificate of lease of Jimmy Musyoki Sila. DW2 further stated that a transfer of title was uploaded in the presentation book. She confirmed that the transfer of land to the third party on 12th January, 2000 was not captured in the presentation book. She further stated that the book was from 11th January, 2000 to 13th November, 2000. She added that on 12th January, 2000 there was no entry for Nakuru Municipality block 17/61. She also stated that the card was expunged on 17th February, 2014. DW2 stated that she was not aware that the act of expunging was challenged. She admitted that she needed more information as to how the leases were obtained. She stated that she could not register a lease without a presentation book.
Upon cross examination by Karanja, she stated that from the white card, the registered owner was the Plaintiff. She added that the acreage was 1.338 acres. She further stated that the title was re-issued on 15th November, 2012. She stated that a title was re-issued once it’s lost and there had to be an application and gazettement. There is supposed to be an application for re-issue. She added that there was no gazettement or application for re-issue. DW2 stated that the discharge of charge was registered on 5th November, 2012 by Jamii Bora Bank.
She went on to state that the company registration number was C.5/2001 and that it was registered in 2001. She confirmed that the charge was registered on 23rd January, 1991. She further confirmed that from the two cards, was Musyoka’s lease was registered first. She admitted that she did not have a letter that forwarded the lease to the Plaintiff. She stated that the 1989 card came earlier and that the Plaintiff’s lease ran from 1st April, 1990. She confirmed that a lease was not to be issued for land that is registered in another person. She further confirmed that a white card was supposed to be in the binder. DW2 admitted that there were parallel documents in the file. She stated that the staff in the registry kept the documents. She added that the registry was not open to members of the public. She stated that the documents were placed by staff at the Land Registry. She further stated that lands office was responsible for the register and that the restriction dated, 5th January, 2009 was entered by the Land Registrar. She further stated that instructions could be given orally and that the District Land Registrar lifted the restriction. She went on to state that the property was transferred to the third party and added that they had gotten a letter that expunged and removed the title.
She stated that many documents were missing but that the green card was still available. She further stated that she did not know who removed them. She stated that where there were cards, the Director of Land Adjudication ought to have given direction. She also stated that if there was another card, she would not have accepted the transfer. She stated that the Plaintiff was issued with a new title without following the procedure. She added that the presentation book was normally prepared by the officer at the counter. DW2 was referred to the presentation book where she confirmed that it sometimes had errors and that it was not conclusive proof. She confirmed that she had a valuation form, consent to transfer and the third party’s title. She admitted that she did not find a transfer document.
Upon cross examination by Ochang, DW2 confirmed that she had documents that supported the transfer to the 1st Defendant. She further confirmed that the transfer documents were missing but the others were in the file. She stated that the letter by National Land Commission showed that Gideon Moi was the owner of the land. She stated that she did not believe that the Plaintiff was the owner since some of the documents were missing. She stated that she did not know how the Plaintiff acquired the land. She further stated that there were two titles for the Plaintiff in the parcel file. She explained that a card was re-opened in 1989 for Jimmy Sila and that the record changed in the year 2000. She confirmed that she did not have a transfer from Jimmy to the third party. She stated that the parcel file was maintained in the registry and that there was a possibility that they were recovered. DW2 stated that staff at the registry could remove the documents. She stated that the fact that there were no transfer documents did not denounce transfer. She added that the entire document was expunged and added that there was no provision for expunging a title. She stated that the 1st Defendant was the owner at the time of expunging.
Ojwang Omolo Patrobas an Assistant Director of Land Administration in the Directorate of Land administration testified as DW3. He testified that he had the register for the suit land and the correspondence file number 10879/1 with 48 folios. He testified that they had the proposed subdivision as proposed by the 1st Defendant. He further testified that there was a PPA2 for Nakuru County dated 20th May, 2010. PPA 2 refers to the parcel. It is dated 20/5/2010. It was his testimony that there were conditions from the provincial Surveyor dated 18th January, 2010. He added that he had a proposed subdivision that had been approved by the Commissioner of Lands on 28th June, 2010 subject to 6 conditions. He further testified that he had the rent and rates clearance certificate dated 21st February, 2010, an official search which showed that the property belonged the 1st Defendant.
He testified that upon survey, the parcels were 762-768. He added that the letter dated 20th June, 2012 was a complaint by the 1st Defendant. DW3 testified that the property was valued, a subdivision scheme letter issued and files were opened. He testified that the leases were processed and that they could not find the allotment letter from the records. He further testified that they traced the record from subdivision but did not find any document from the Plaintiff. It was his testimony that the registered owner of the land was the 1st Defendant.
Upon cross examination by Karanja, DW3 stated that he got the documents from the Land Registrar before subdivision. He further stated that they had an official search dated 4th May, 2010, the rent clearance certificate and a physical plan register PPA 2. He went on to stated that they had an approved sketch plan by Municipal council of Nakuru. He stated that there was also a letter of no objection and a caution by the provincial surveyor. He stated that the District Land Officer was to be satisfied about ownership. He added that the provincial surveyor was satisfied on ownerships. He further stated that the 1st Defendant was the registered owner. He confirmed that from the search there was an encumbrance. He went on to stated that there was a restriction registered on 27th April, 2010 by the owner. He also confirmed that there was no document for the Plaintiff.
Upon cross examination by Kipkoech, he stated that the extract he found in the correspondence file was what he availed in court. He further stated that the correspondence file as extracted started from 2010. He admitted that he did not know the date the certificate of lease was issued. He confirmed that he did not have the records from 1989 to 2009. He also added that there should have been correspondence. He confirmed that entry number one was the lease to Jimmy Musyoki Sila as per the original lease. He confirmed that he did not have correspondence forming the lease to Jimmy Musyoki Sila. That marked the close of the Defendants case.
Submissions
None of the parties filed their submissions.
Analysis and Determination
This court has carefully considered the pleadings and the evidence on record and is of the view that the issues for determination are:
a) Who is the lawful owner of the suit property?
b) Whether the Plaintiff is entitled to the prayers in his plaint.
c) Whether the 1st Defendant is entitled to the prayers in his counter-claim.
d) Who is to bear the costs of the suit.
It was the Plaintiff’s case that he was allocated the suit land in 1990. It as further his case that he was in occupation of the suit land after NLC confirmed that he was the rightful owner of the suit property. Upon cross examination, he admitted that he did not have the allotment letter or the application for allotment. He did not have the application for the presentation book at lands office.
The 1st Defendant on the other hand testified that he bought the suit property from the third party. He admitted that he bought it with a restriction placed by the third party which was later removed by the District Land Registrar. DW1 testified that the third party had been charged with fraud but stated that he did not know the outcome of the case. DW2 the Land Registrar gave evidence to the effect that records confirmed that that the Plaintiff was the owner of the suit property. However, upon cross examination, she confirmed that a card had been re-opened in 1989 for Jimmy Sila which later changed in 2000. She also confirmed that Musyoka’s lease was registered first. She also confirmed and admitted that there was no letter forwarding the lease to the Plaintiff. She further confirmed that the 1989 card came earlier and that the Plaintiff’s lease ran from 1st April, 1990.
It was DW2’s evidence that she could not confirm how the Plaintiff acquired the land. She also confirmed that there were two titles for the Plaintiff in the parcel file. DW2 confirmed that she did not have a transfer from Jimmy to the third party but added that the parcel files being maintained in the registry, there was a possibility that they were tampered with. DW2 confirmed that in as much as there were no transfer documents, the same did not denounce transfer. She gave evidence that the entire document was expunged despite there being no provision for expunging a title. She confirmed that the 1st Defendant was the owner at the time of expunging. DW3 the Assistant Director of Lands Administration confirmed that entry number one was the lease to Jimmy Musyoki Sila as per the original lease. He also confirmed that he had no documents for the Plaintiff.
Section 26(1) of the Land Registration Act provides:
“…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—
a) on the ground of fraud or misrepresentation to which the person is proved to be a party
b) Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.”
The Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) cited the case of Munyu Maina V Hiram Gathiha Maina [2013] KECA, where it held as follows:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”[Emphasis mine]
This court finds that the root of the dispute arises from the lease issued to Jimmy Musyoki Sila on 12th September, 1989 and that issued to the Plaintiff dated 16th November, 1990. The Plaintiff alleged that the lease issued to Jimmy Musyoki Sila was fraudulently issued. I have keenly looked at the Plaintiff’s pleadings and it is not in contention that fraud was never pleaded. The Plaintiff testified that the third party was charged with acts of fraud but it is noteworthy that the outcome of the same was never presented before this court. In addition, it is trite law that parties are bound by their pleadings and this court shall not address what was never pleaded by the parties.
The 1st Defendant claimed that he bought the suit land from the third party which emanated from the original lease issued to Jimmy Musyoki Sila. There is evidence of a sale agreement dated 12th August, 2009, transfer form dated 14th September, 2009, consent of transfer and receipt of payment of the rent. There is also evidence of the lease in the 1st Defendant’s name dated 7th October, 2009. This court has perused the green card certified on 24th July, 2017 and it is a fact that entries number 1 and 2 did not corroborate the evidence by DW2, the land registrar. It is this court’s view that it was clear from the testimonies and documentary evidence adduced that there were some discrepancies in the register as produced by the parties. It is noteworthy that both the Plaintiff and 1st Defendant claimed their leases were valid and, in the circumstance, this court shall be inclined to consider this as a case of two competing titles on the same property.
In the case of Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General, James Ndirangu, Joseph Ndiritu Mugi, Annah Wangari Ndiritu & Lydia Muthoni Ndiritu [2017] KECA 700 (KLR) the court held as follows:
“As at the date of the trial, the appellant was still holding a valid Title Deed to the suit property, which title was issued to him in 1992. The 2nd respondent was allegedly issued with a Title Deed for the same property in 1996. A property cannot have two valid title deeds. Even assuming that the second title had been issued by mistake, the first in time prevails; [Emphasis mine]
The above principle on the first registered title was also applied in the case of Epaphrus Muturi Kigoro V William Mukui Nyaga [2015] KECA 953 (KLR)
Section 143(1) of the Registered Land Act provides as follows:
“Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than the first registration) has been obtained, made or omitted by fraud or mistake.”
Further in David K. Kipsang –vs- James Kipchenger, - Civil Appeal No. 214 of 2001 the court held:
“This makes it clear that even if fraud had been established in obtaining of the appellant’s first registration (which we do not think it has) the registration could not have been cancelled or amended”.
In line with the above, it trite law that the first registered title usually takes dominance over subsequent titles. In the present case, Jimmy Musyoki Sila’s lease was registered on 12th September, 1989 while that of the Plaintiff was registered 16th November, 1990. It is therefore this court’s finding that the lease issued to Jimmy Musyoki Sila was valid as opposed to that issued to the Plaintiff. Consequently, the 1st Defendant’s lease suffices as the valid lease having emanated from Jimmy Sila’s lease. I therefore find that the 1st Defendant is the lawful owner of the suit property. In view of the above, the Plaintiff is therefore not entitled to the prayers sought in his plaint.
Having already established the 1st Defendant is the lawful owner of the suit property together with its subdivisions, he is therefore entitled to the prayers as sought in his counterclaim.
On the final issue of costs, the general rule is that costs follow the event, however this court has to consider the circumstances of each case and looking at the value of the property and when the suit was filed, it would be fair that each party bears its own costs to the suit. It is so ordered.
JUDGMENT DATED AND DELIVERED ELECTRONICALLY THIS 3RD DAY OF OCTOBER 2024.
The Plaintiff commenced this suit vide an amended plaint dated 30th October, 2018 against the 1st Defendant
seeking the following orders:
a) An order that he is the lawful lessee from the government of all that plot known as Nakuru Municipality Block 17/16 and the Defendant has no right or title at all over the same.
b) A permanent injunction restraining the Defendant by himself, servants and or agents from interfering with the Plaintiffs lease and possession of the above plot.
c) An order of eviction or vacant possession.
d) Mesne profits of Kshs. 26,050, 987/=
e) Mesne profits accumulated from the year 2018 up to the date of delivery of judgment in this matter.
f) Valuation costs of Kshs. 307,400/=
g) Costs of this suit and interest.
The 1st Defendant filed his amended defence and counterclaim on 20th November, 2018 where he denied the claims in the amended plaint. He sought for the following orders:
a) Declaration that the defendant now the plaintiff is the bonafide owner of the Land Title No. Nakuru Municipality Block 17/61 and the subdivisions being:
i. Nakuru Municipality Block 17/762
ii. Nakuru Municipality Block 17/763
iii. Nakuru Municipality Block 17/764
iv. Nakuru Municipality Block 17/765
v. Nakuru Municipality Block 17/766
vi. Nakuru Municipality Block 17/767
vii. Nakuru Municipality Block 17/768
b) A permanent injunction restraining the Plaintiff (Defendant in the Counterclaim) from invading, trespassing, alienating, disposing off, charging or whatsoever interfering with the Defendant’s now Plaintiff’s land parcel numbers aforesaid.
c) Costs.
Plaintiffs’ Case
Gideon Kiptarus Toroitich testified as PW1 where he produced his witness statement dated 26th July, 2018. He testified that he was present on behalf of the Plaintiff by virtue of a specific Power of Attorney dated 11th March, 2019 and registered on 13th March, 2019. He produced the Power of Attorney and receipt which was marked as MFI “1a &b”. He also produced 3 sets of documents dated 6th August, 2013, 14th December, 2017 and 30th October 2018 as PEX1, 2 and 3 as bundle as numbered. He also produced his list of documents filed on 21st July, 2020. He testified that the Plaintiff called him in 2012 and requested him to confirm that he had received the title. He further testified that the Plaintiff informed him that he had given Stephen Chumo a discharge to process registration on his behalf. He went on to testify that the title looked too new but still kept it. He testified that sometime in 2013, the Plaintiff informed him that somebody had encroached onto his land. He testified that he confirmed at the site that there was a hotel (Capital Hill) next to the plot.
He testified that the Plaintiff instructed a lawyer to obtain a restraint order after which he liaised with Ikua advocate who filed a suit. He further testified that through a letter he sought the National Land Commission to verify ownership of land parcel Nakuru municipality 17/61. He testified that the Plaintiff lodged investigations with the DCI after which the third party was charged with fraud relating to the suit property. PW1 was referred to the certificate of lease in respect of Nakuru Municipality/Block 17/61 in the Plaintiff’s name where he confirmed that the lease was dated 16th November, 1990. He testified that land rent collections record from 1991 to 2001 showed the Plaintiff as the owner.
Upon cross examination by Karanja for the Defendant, he stated that he signed the statement on 26th July, 2019 and that the power of Attorney was registered on 9th July, 2020. He stated that the power of Attorney was not registered at the time he did the statement. He further stated that the land was allocated to the Plaintiff in 1990. He admitted that he did not have the allotment letter or any application. He also admitted that he did not have the certificate of lease in court. He confirmed that he paid the rent after the discharge of charge in 2012. He also confirmed that he never paid any rent as the title was under charge. He admitted that he did not have the discharge. He stated that the land was discharged at Citi- Finance which was under liquidation. He admitted that he never did any search and added that the title was charged. He stated that after registration they discovered other parcel titles. He further stated that there was a parallel title registered earlier than the one for 12th September, 1989. He stated that the title was in the name of Jimmy Musyoka Sila. He confirmed that he never used the land though it was fenced. He further confirmed that he never developed the land and that no one ever chased them from the land. He stated that the Defendant was not in possession. He further stated that he paid rent to National Government and the Municipal council of Nakuru. He added that the Defendant’s title was revoked. He also stated that he was in possession and that they had received a letter from NLC confirming that they owned the land
PWI was referred to the green card where he stated that the same was expunged. He further stated that they had complained to the DCI where the third party was arrested and charged. He stated that the 1st Defendant was never arrested nor charged. He stated that the third party committed the fraud and not the 1st Defendant. He admitted that they had not sued the third party. PW1 was referred to the sale agreement at page 90 and the consent at Page 99 where he confirmed that the Defendant bought the suit property from the third party. He admitted that despite the charge registered on the 23rd January, 1991 he did not have any evidence of a loan. He also stated that he got the presentation book from lands after he applied. He admitted that he did not have the application. He also stated that the investigating officer applied for the presentation book.
Upon cross examination by Wanjeri for the 1st and 3rd Defendants, PW1 stated that he complained against the land registrar who transferred their land to 3rd parties. He stated that they have not sued the Land Registrar.
On re-examination, he stated that when he filed the case, the title was in the 1st Defendant’s name. He also stated that the charge had regulation at page 133. He stated that there was an entry for charge with no charges. He further stated that there was a status quo order on 21st November, 2023. He stated that the Plaintiff later applied for subdivision. That marked the close of the Plaintiff’s case.
Defendant’s case
Jayen Motichand Dodhia testified as DW1 where his statement dated 3rd December, 2020 and list of documents filed on 9th December, 2020 and 7th October, 2023 marked as DEX1-DEX14 was adopted as his evidence in chief. He testified that he resides in section 58 Nakuru and that the suit land is Nakuru Municipality Block 17/61. It was his testimony that he bought the property after being approached by Mr. Mwiko. He testified that upon doing the search he noticed a restriction in the title and informed Mr. Mwiko. He testified that they met the seller, the third party who told him that the restriction was on his instruction to the Land Registrar. He testified that that they then met with the District Land Registrar who told him that there was no issue as the restriction was by the third party. He testified that he was shown a copy of the title in the third party’s name. He further testified that Mr Nyanduka gave him the go ahead after which they signed the agreement in 2009. He testified that he paid stamp duty. He added that there was caveat but the title was transferred to his name and the restriction removed. It was his testimony that he subdivided the land into 7 portions between 2009 and 2012. He testified that as soon as he got the title, he erected a wall. He testified that he was going to build 7 maisonettes but was stopped from constructing. He testified that no one complained between 2009 and 2013 and that currently the land was vacant with no activity. He testified that the Plaintiff claimed the land and that he had been reissued with the title. DW1 testified that their title was entered Jimmy Sila for 1989 and Gideon Moi 1990. He further testified that the statement from the Land Registrar stated that both titles were issued by the government and were genuine. He testified that the 2nd green card was not available when he bought the suit land. He added that there was a letter by the National Land Commission that requested the Land Registrar to expunge his title from record. He testified that he land was valued at Kshs.70,000,000/= in 2013 and Kshs100,000,000/= in 2018. He further testified he did valuation in 2021, and that it was Kshs. 138,000,000. He urged the court to confirm his title and in the alternative if the Plaintiff’s title is confirmed he be compensated. He stated that he did not know why the title was re-issued.
Upon cross examination by Ogola for the Plaintiff, DW1 confirmed that the third party sold him the suit land. He confirmed that there was a restriction after the first search. He stated that he was satisfied with the search conducted by Mwiko and Kakai. He further stated that his title emanated from the third party’s title. He confirmed that the third party was charged for having fraudulently sold the suit land. He further confirmed that he was not aware of the court outcome. He stated that he had recorded a statement at CID as there was a case against the third party. He stated that his title was genuine while the Plaintiff’s was fake as it was fraudulently obtained. He admitted that he did not have any document which showed that the third party placed any restriction. He went on to state that the Commissioner of Lands found there was supposed fraud. He stated that the third party had the titles and added that he did not have a copy of the cancelled title. He further stated that the 1st agreement was on 20th August, 2009 and that there was restriction on the title. He also stated that the land was sold free of encumbrances and the agreement was dated 1st August, 2009. He added that he was aware of the restriction and a subsequent encumbrance. He also stated that the agreement was reviewed on 5th October, 2009. He stated that he was not sure whether the procedure for removal of restriction was followed. He went on to state that on 16th November, 1990 a leave was presented for registration in the Plaintiff’s name.
He confirmed that he did not have any documents until Jimmy Musyoka was issued with a lease in 1989. He further confirmed that the third party’s title was issued on 12th January, 2000. He added that there was no entry of the third party’s title in the presentation book. He also stated that he was not aware of the registrar testified that the third party’s title was fraudulent. He stated that he bought the property and took possession. He also stated that the land was subdivided and that there were new files. He stated that in 2020, he took possession of the land and was currently in possession.
Upon cross examination by Ochang for the 3rd Plaintiff, DW1 stated that he did due diligence and later purchased the land from the third party. He admitted that there was a restriction placed by the third party. He stated that he had sought clarification from the third party, the Land Registrar and Mr Nyatika. He stated that he had visited the Land Registrar’s office and that he had no reason to doubt the explanation given by the Land registrar. He further stated that the previous owner was Mr Jimmy Musyoka Sila and that no one questioned his title. He confirmed that he had done a search at Nakuru Land office and he took possession. He added that there was nothing owing to the third party. He also stated that he had been paying land rates. He further stated that their lawyer did the transfer and land was smoothly transferred. He added that the property had title and that all the documents were in the third party’s name. He stated that the Plaintiff’s title was issued in 2012. He also stated that he was informed that the National Land Commission advised the land Registrar to expunge his document but he had not been invited to a hearing. He stated that Mr Nyatika had dealt with the issue and that he did not know how the restriction was removed. He stated that the third party placed and later removed the restriction. He further stated that his claim was against the Land Registrar.
DW1 stated that he was approached by an agent who showed him the land. He stated that he did a search on 5th June, 2009 and purchased the property on 1st August, 2009. He stated that there was a restriction entered on 5th January, 2009. He further stated that he bought the property since the restriction was placed by the vendor. He added that the Land Registrar had placed a restriction and that he only had the title. He stated that he purchased the property with the restriction but that it was to be removed to pave way for transfer. He stated that he paid the purchase price and that the balance was 5.5 million.
He went on to state that he was not aware of any issue and that the restriction was released on 1st June, 2009. He admitted that he did not know that the Plaintiff was the owner of the property. He stated that after subdivision, they did not have the new leases. He stated that he was an innocent purchaser and that the restriction was removed by the Land Registrar. He added that the restriction was placed on 5th January, 2009 and removed on 6th October, 2009. He also stated that he had placed a restriction on 27th April, 2010. He stated that Mr. Nyatika ensured removal of the restriction. He further stated that he was aware that the land was available and that he had no claim against the third party.
Upon re-examination, he stated that the restriction had been placed by the third party and was removed by the District Land Registrar. He further stated that if the District Land Registrar had not given him a go ahead, he could not have proceeded with the transactions. He added that he had requested the registrar to place a restriction on the land so as to protect it from Land grabbing. He also stated that the 2nd green card was never brought his attention. He admitted that he had not gone for presentation book and that the clearance documents were obtained. He stated that he was in possession between 2001 and 2013 and there was no claim on the land by the Plaintiff. He added that the court-maintained the status quo. He stated that he blamed the land registrar but also confirmed that he had never gone to the land’s offices. He also stated that the documents were expunged when he sued them. DW1 was recalled where he stated that his agent was Mr. Peter Njoroge. Mr Mwikohad recorded a statement on 20th November, 2018. He produced the statement as DEX 14.
Jane Gitari the Land Registrar Nakuru testified as DW2. She testified that she had received a letter from the Attorney General dated 29th April, 2024 which required him to testify. She testified that the suit property was Nakuru Municipality Block 17/61 with the white card opened on 12th June, 1989. She also testified that she had the waiting card opened on 16th November, 1990 and the lease document registered on the same date. She further testified that the charge document was registered on 23rd January, 1991 and a discharge of charge on 5th November, 2014. She added that the third party gave her the valuation report, letter of consent and rent clearance certificate from the municipal council of Nakuru. It was her testimony that the National Land Commission investigated the matter and found that the Plaintiff’s allotment was valid. She testified that 1st Defendant’s records were expunged. She went on to testify that there was a restriction on 5th January, 2009 while the lease was dated 16th November, 1990. She produced certified copies of documents as a bundle 1st and 3rd DEX 1.
Upon cross examination by Ogola, she stated that she had received a lease document from the chief Land Registrar dated 16th November, 1990. She explained that when a lease document was received, payment should have been made after which the Land Registrar receives the document and causes it to be executed. She went on to explain that an entry is then made in a presentation book. She stated that from the presentation book, the document was received on 16th November, 1990. She stated that a lease document must be entered in the presentation book. DW2 stated that she did not find any lease registered under Jimmy Musyoki Sila. She further stated that she had the cards for 1989 and 1990 and that she needed to consult on the presentation book.
She confirmed that it was possible to open a register with the lease. She further confirmed that she needed to check the presentation book for 12th September, 1989. She stated that the documents she had, came from one parcel file which did not have any documents produced by Jimmy Musyoki Sila. She further stated that there were no transfer documents duly executed, charges for rates and rent nor any valuation form. She added that there were no receipts for payment or consent from the Commissioner of Lands. She stated that the agreement was not required for transfer. She also stated that there was a requirement for cancellation of certificate of lease of Jimmy Musyoki Sila. DW2 further stated that a transfer of title was uploaded in the presentation book. She confirmed that the transfer of land to the third party on 12th January, 2000 was not captured in the presentation book. She further stated that the book was from 11th January, 2000 to 13th November, 2000. She added that on 12th January, 2000 there was no entry for Nakuru Municipality block 17/61. She also stated that the card was expunged on 17th February, 2014. DW2 stated that she was not aware that the act of expunging was challenged. She admitted that she needed more information as to how the leases were obtained. She stated that she could not register a lease without a presentation book.
Upon cross examination by Karanja, she stated that from the white card, the registered owner was the Plaintiff. She added that the acreage was 1.338 acres. She further stated that the title was re-issued on 15th November, 2012. She stated that a title was re-issued once it’s lost and there had to be an application and gazettement. There is supposed to be an application for re-issue. She added that there was no gazettement or application for re-issue. DW2 stated that the discharge of charge was registered on 5th November, 2012 by Jamii Bora Bank.
She went on to state that the company registration number was C.5/2001 and that it was registered in 2001. She confirmed that the charge was registered on 23rd January, 1991. She further confirmed that from the two cards, was Musyoka’s lease was registered first. She admitted that she did not have a letter that forwarded the lease to the Plaintiff. She stated that the 1989 card came earlier and that the Plaintiff’s lease ran from 1st April, 1990. She confirmed that a lease was not to be issued for land that is registered in another person. She further confirmed that a white card was supposed to be in the binder. DW2 admitted that there were parallel documents in the file. She stated that the staff in the registry kept the documents. She added that the registry was not open to members of the public. She stated that the documents were placed by staff at the Land Registry. She further stated that lands office was responsible for the register and that the restriction dated, 5th January, 2009 was entered by the Land Registrar. She further stated that instructions could be given orally and that the District Land Registrar lifted the restriction. She went on to state that the property was transferred to the third party and added that they had gotten a letter that expunged and removed the title.
She stated that many documents were missing but that the green card was still available. She further stated that she did not know who removed them. She stated that where there were cards, the Director of Land Adjudication ought to have given direction. She also stated that if there was another card, she would not have accepted the transfer. She stated that the Plaintiff was issued with a new title without following the procedure. She added that the presentation book was normally prepared by the officer at the counter. DW2 was referred to the presentation book where she confirmed that it sometimes had errors and that it was not conclusive proof. She confirmed that she had a valuation form, consent to transfer and the third party’s title. She admitted that she did not find a transfer document.
Upon cross examination by Ochang, DW2 confirmed that she had documents that supported the transfer to the 1st Defendant. She further confirmed that the transfer documents were missing but the others were in the file. She stated that the letter by National Land Commission showed that Gideon Moi was the owner of the land. She stated that she did not believe that the Plaintiff was the owner since some of the documents were missing. She stated that she did not know how the Plaintiff acquired the land. She further stated that there were two titles for the Plaintiff in the parcel file. She explained that a card was re-opened in 1989 for Jimmy Sila and that the record changed in the year 2000. She confirmed that she did not have a transfer from Jimmy to the third party. She stated that the parcel file was maintained in the registry and that there was a possibility that they were recovered. DW2 stated that staff at the registry could remove the documents. She stated that the fact that there were no transfer documents did not denounce transfer. She added that the entire document was expunged and added that there was no provision for expunging a title. She stated that the 1st Defendant was the owner at the time of expunging.
Ojwang Omolo Patrobas an Assistant Director of Land Administration in the Directorate of Land administration testified as DW3. He testified that he had the register for the suit land and the correspondence file number 10879/1 with 48 folios. He testified that they had the proposed subdivision as proposed by the 1st Defendant. He further testified that there was a PPA2 for Nakuru County dated 20th May, 2010. PPA 2 refers to the parcel. It is dated 20/5/2010. It was his testimony that there were conditions from the provincial Surveyor dated 18th January, 2010. He added that he had a proposed subdivision that had been approved by the Commissioner of Lands on 28th June, 2010 subject to 6 conditions. He further testified that he had the rent and rates clearance certificate dated 21st February, 2010, an official search which showed that the property belonged the 1st Defendant.
He testified that upon survey, the parcels were 762-768. He added that the letter dated 20th June, 2012 was a complaint by the 1st Defendant. DW3 testified that the property was valued, a subdivision scheme letter issued and files were opened. He testified that the leases were processed and that they could not find the allotment letter from the records. He further testified that they traced the record from subdivision but did not find any document from the Plaintiff. It was his testimony that the registered owner of the land was the 1st Defendant.
Upon cross examination by Karanja, DW3 stated that he got the documents from the Land Registrar before subdivision. He further stated that they had an official search dated 4th May, 2010, the rent clearance certificate and a physical plan register PPA 2. He went on to stated that they had an approved sketch plan by Municipal council of Nakuru. He stated that there was also a letter of no objection and a caution by the provincial surveyor. He stated that the District Land Officer was to be satisfied about ownership. He added that the provincial surveyor was satisfied on ownerships. He further stated that the 1st Defendant was the registered owner. He confirmed that from the search there was an encumbrance. He went on to stated that there was a restriction registered on 27th April, 2010 by the owner. He also confirmed that there was no document for the Plaintiff.
Upon cross examination by Kipkoech, he stated that the extract he found in the correspondence file was what he availed in court. He further stated that the correspondence file as extracted started from 2010. He admitted that he did not know the date the certificate of lease was issued. He confirmed that he did not have the records from 1989 to 2009. He also added that there should have been correspondence. He confirmed that entry number one was the lease to Jimmy Musyoki Sila as per the original lease. He confirmed that he did not have correspondence forming the lease to Jimmy Musyoki Sila. That marked the close of the Defendants case.
Submissions
None of the parties filed their submissions.
Analysis and Determination
This court has carefully considered the pleadings and the evidence on record and is of the view that the issues for determination are:
a) Who is the lawful owner of the suit property?
b) Whether the Plaintiff is entitled to the prayers in his plaint.
c) Whether the 1st Defendant is entitled to the prayers in his counter-claim.
d) Who is to bear the costs of the suit.
It was the Plaintiff’s case that he was allocated the suit land in 1990. It as further his case that he was in occupation of the suit land after NLC confirmed that he was the rightful owner of the suit property. Upon cross examination, he admitted that he did not have the allotment letter or the application for allotment. He did not have the application for the presentation book at lands office.
The 1st Defendant on the other hand testified that he bought the suit property from the third party. He admitted that he bought it with a restriction placed by the third party which was later removed by the District Land Registrar. DW1 testified that the third party had been charged with fraud but stated that he did not know the outcome of the case. DW2 the Land Registrar gave evidence to the effect that records confirmed that that the Plaintiff was the owner of the suit property. However, upon cross examination, she confirmed that a card had been re-opened in 1989 for Jimmy Sila which later changed in 2000. She also confirmed that Musyoka’s lease was registered first. She also confirmed and admitted that there was no letter forwarding the lease to the Plaintiff. She further confirmed that the 1989 card came earlier and that the Plaintiff’s lease ran from 1st April, 1990.
It was DW2’s evidence that she could not confirm how the Plaintiff acquired the land. She also confirmed that there were two titles for the Plaintiff in the parcel file. DW2 confirmed that she did not have a transfer from Jimmy to the third party but added that the parcel files being maintained in the registry, there was a possibility that they were tampered with. DW2 confirmed that in as much as there were no transfer documents, the same did not denounce transfer. She gave evidence that the entire document was expunged despite there being no provision for expunging a title. She confirmed that the 1st Defendant was the owner at the time of expunging. DW3 the Assistant Director of Lands Administration confirmed that entry number one was the lease to Jimmy Musyoki Sila as per the original lease. He also confirmed that he had no documents for the Plaintiff.
Section 26(1) of the Land Registration Act provides:
“…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—
a) on the ground of fraud or misrepresentation to which the person is proved to be a party
b) Where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.”
The Supreme Court in the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (21 April 2023) cited the case of Munyu Maina V Hiram Gathiha Maina [2013] KECA, where it held as follows:
“We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.”[Emphasis mine]
This court finds that the root of the dispute arises from the lease issued to Jimmy Musyoki Sila on 12th September, 1989 and that issued to the Plaintiff dated 16th November, 1990. The Plaintiff alleged that the lease issued to Jimmy Musyoki Sila was fraudulently issued. I have keenly looked at the Plaintiff’s pleadings and it is not in contention that fraud was never pleaded. The Plaintiff testified that the third party was charged with acts of fraud but it is noteworthy that the outcome of the same was never presented before this court. In addition, it is trite law that parties are bound by their pleadings and this court shall not address what was never pleaded by the parties.
The 1st Defendant claimed that he bought the suit land from the third party which emanated from the original lease issued to Jimmy Musyoki Sila. There is evidence of a sale agreement dated 12th August, 2009, transfer form dated 14th September, 2009, consent of transfer and receipt of payment of the rent. There is also evidence of the lease in the 1st Defendant’s name dated 7th October, 2009. This court has perused the green card certified on 24th July, 2017 and it is a fact that entries number 1 and 2 did not corroborate the evidence by DW2, the land registrar. It is this court’s view that it was clear from the testimonies and documentary evidence adduced that there were some discrepancies in the register as produced by the parties. It is noteworthy that both the Plaintiff and 1st Defendant claimed their leases were valid and, in the circumstance, this court shall be inclined to consider this as a case of two competing titles on the same property.
In the case of Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v Attorney General, James Ndirangu, Joseph Ndiritu Mugi, Annah Wangari Ndiritu & Lydia Muthoni Ndiritu [2017] KECA 700 (KLR) the court held as follows:
“As at the date of the trial, the appellant was still holding a valid Title Deed to the suit property, which title was issued to him in 1992. The 2nd respondent was allegedly issued with a Title Deed for the same property in 1996. A property cannot have two valid title deeds. Even assuming that the second title had been issued by mistake, the first in time prevails; [Emphasis mine]
The above principle on the first registered title was also applied in the case of Epaphrus Muturi Kigoro V William Mukui Nyaga [2015] KECA 953 (KLR)
Section 143(1) of the Registered Land Act provides as follows:
“Subject to subsection (2), the court may order rectification of the register by directing that any registration be cancelled or amended where it is satisfied that any registration (other than the first registration) has been obtained, made or omitted by fraud or mistake.”
Further in David K. Kipsang –vs- James Kipchenger, - Civil Appeal No. 214 of 2001 the court held:
“This makes it clear that even if fraud had been established in obtaining of the appellant’s first registration (which we do not think it has) the registration could not have been cancelled or amended”.
In line with the above, it trite law that the first registered title usually takes dominance over subsequent titles. In the present case, Jimmy Musyoki Sila’s lease was registered on 12th September, 1989 while that of the Plaintiff was registered 16th November, 1990. It is therefore this court’s finding that the lease issued to Jimmy Musyoki Sila was valid as opposed to that issued to the Plaintiff. Consequently, the 1st Defendant’s lease suffices as the valid lease having emanated from Jimmy Sila’s lease. I therefore find that the 1st Defendant is the lawful owner of the suit property. In view of the above, the Plaintiff is therefore not entitled to the prayers sought in his plaint.
Having already established the 1st Defendant is the lawful owner of the suit property together with its subdivisions, he is therefore entitled to the prayers as sought in his counterclaim.
On the final issue of costs, the general rule is that costs follow the event, however this court has to consider the circumstances of each case and looking at the value of the property and when the suit was filed, it would be fair that each party bears its own costs to the suit. It is so ordered.
JUDGMENT DATED AND DELIVERED ELECTRONICALLY THIS 3RD DAY OF OCTOBER 2024.