a
JUDGEMENT
1. By way of a Plaint dated 01/12/2019, the Plaintiff seeks the following orders;
a) A declaration that the suit parcel L.R No. 783 ZEA SETTLEMENT SCHEME measuring approximately 3.7 Ha belongs to the Plaintiff.
b) An injunction order permanently restraining the Defendants by themselves, their servants and/or agents from claiming, trespassing, occupying and/or in any other way interfering with the Plaintiff’s suit parcel of land.
c) Costs of the suit.
d) Any other or further relief this Honourable court may deem fit and just to grant.
2. The 3rd and 4th Defendants entered appearance and filed a joint Statement of Defence dated 04/06/2018 but stamped on 13/07/2018. They denied all the allegations in the Plaint. Then the vide a Counterclaim, the 3rd Defendant (now the Plaintiff by way of Counterclaim prayed against the Plaintiff (now the Defendant in the Counter-claim) a permanent injunction restraining him from interfering with the 3rd Defendants’ quiet possession of Plot No. 832 ZEA SETTLEMENT SCHEME measuring 4.1 Hectares now known as title No. KWANZA/ZEA/832.
3. The matter proceeded for hearing on 09/03/2020 with the evidence of the Plaintiff.
The Plaintiff’s Case
4. The Plaintiff testified as PW1. He adopted his witness statement dated 08/07/2019 as evidence in chief. He stated that he purchased the plot LR No. 783 ZEA SETTLEMENT SCHEME from the Dean, Moi University; Joshua Kwonyike, after it was allocated to him in 2008. He further testified that he had a problem with his neighbor, the owner of plot no. 783, who complained that her land documents read a larger side than what she occupied. He then asked officers in the Land Settlement Office for the original documents. They took his original receipts and allotment letter and asked to have them for a week. It was the Plaintiff’s testimony that he confirmed that there was a plan to allocate his neighbor a plot of 5 Acres. Later the Adjudication office told him his plot was bigger on the ground and called on him to buy the extra portion of land.
5. The Plaintiff testified that in 2015, the 3rd Defendant came and tried to occupy his farm. The new plot was 783 and 832 was the plot in between. It was about 12 acres and belonged to the 3rd Defendant. That the 4th Defendant came with building materials. He told the Plaintiff the land number that he had been sold was not genuine. The Plaintiff then wrote to the Land Adjudication and Settlement office to complain about the officers who were trying to deprive him of his land, and produced the letter as P-Exh.1. He produced a copy of the letter of offer dated 02/02/02 as P-Exh 2. He produced as P-Exh 3 the letter allocating the property to Joshua Kwonyike. It was dated 03/04/97. He also produced the demand letter as P-Exh.4. Additionally, he produced the agreement dated 13/06/2008 between himself and Joshua as P-Exh.5 He produced the letters to the Senior Officer at Lands dated 03/02/15, 25/11/14 and 21/11/2016 as p-Exh.6 (a), (b) and (c). He prayed the court grant him the prayers sought.
6. During cross examination, he stated that the three land officers gave him an offer to purchase the extra land in a closed door meeting. Further, that there was consideration of Kshs. 6500 per acre which he had paid in 2008. He produced a receipt for Kshs 98,000/- which was paid for the same parcel.
7. PW2 was Joshua Kwonyike. He adopted his witness statement dated 08/07/2019 as evidence in chief. He testified that he had known the applicant from the time he was a student. Further, that the suit parcel was originally allotted to him in 1996 by the Settlement Fund Trustees ADC. He was issued with an allotment letter dated 03/04/1997 which he produced as P-Exh.3. He was also issued with a letter of offer which he produced as P-Exh 2. Further, that he made a payment of Kshs. 98,000/- which was the full purchase price in the letter of offer dated 02/02/2022. He produced the receipt as P-Exh.7. He described the neighboring plots and their owners and stated that the Defendants’ claim of their plot lying between 783 and 782 is untrue. He denied the existence of Plot No. 832, stating that it could not have been added to the sequence from 779 to 788 and urged the court to refer to the original maps.
8. During cross examination, he stated that the in the letter dated 03/04/1997, no plot number was identified. The letter only stated the acreage. Further, when he paid KShs 6500 he was topping it up per acre. He did not pay as he was out of the country. He was to pay the full purchase price in three installments within 12 months failure to which the offer would be cancelled. He then paid the full purchase price on 31/05/2010 when he received the letter from the Settlement Fund Trust, 8 years after the offer. He stated that going by the conditions of the offer letter, it implies that by the time he paid the offer had lapsed. He was shown P-Exh 5 which he stated was the sale agreement he entered into with the Plaintiff and that he had not paid the purchase price by that time.
9. He confirmed that he sold the land on 13/06/2008 and made the payment on 31/05/2010. He, however, stated that for one to say that he had no interest to transfer when he sold the land would be wrong. He was then shown P-Exh 3 and he testified that it indicated that parcel No. 783 measured 3.7 Ha which when converted to acres is slightly less than 10 acres. In addition, he stated that he did not know when the plot was generated.
The Defendants’ Case
10. The 3rd Defendant testified as DW1. She adopted her witness statement dated 04/06/2018 as evidence in chief and testified that she was allocated the suit land by the government when she applied for it in 2013. She visited the Lands Office on 12/01/2015 and was given a letter of offer referring to the parcel no. 832 which measured 4.1 Ha, about 10 acres. She produced the letter as P-Exh1 and stated that she paid Kshs. 66,300/- and was issued a receipt which she produced as P-Exh.2 She was then given a surveyor but when she arrived at the parcel of land the Plaintiff prevented her from surveying the property. She produced an official land search as P-Exh 3. She testified further that when she went to the lands office for a title she was told that one could not be issued as there was a case in court. She further stated that in 2016 she sold 5 acres of the land to the 4th Defendant and when they went to the survey office they were chased away. She had sold the land to the 4th Defendant. The witness was then stood down for the County Surveyor to testify.
11. The County Surveyor, Boaz Atai Onduso, testified as DW3. It was his testimony that pursuant to an order dated 27/07/2022 he visited the grounds on 12/09/2022 to ascertain the measurements of TRANS-NZOIA/ZEA/SETTLEMENT SCHEME/783 and 832 and prepared the report dated 19/09/2022. This was in the presence of the Plaintiff and the 3rd Defendant. The Plaintiff showed him the beacons and he was able to establish that parcel No. 783 was 4.57 Ha. The other parties could not show him the boundaries for parcel no. 832, further, it had no boundaries. He also noticed a difference in the scale and distances of the plot on the Registry Index Map (RIM) and the ground. He compared the acreages on the RIM and on the ground and found a deficit of 3.23 Ha. He further found that parcel no. 832 did not exist on the ground. He produced a copy of the report as P-Exh 8.
12. The witness testified that the acreage of 783 was 4.57 Ha and on the ground, it was fenced with barbed wire. He stated that he found that parcel 783 borders 784 and 782 and gave this as scenario 1 in a sketch. Then, referring to the Registry Index Map, he gave scenario 2 where it was shown that 783 borders 784 and 832. After picking the ground situation, he compared it with the RIM then drew scenario 3. His conclusion was that the acreage on the ground did not conform with the records. Further, that only 783 existed on the ground.
13. During cross examination he confirmed that he was a county surveyor with the county and stated that he had been a surveyor for 11 years. Further, that he conducted the survey pursuant to a court order. Referring to the findings of his report, he pointed out that the 2nd table shows that the acreage of 783 varied from the registered acreage of 3.70 Ha with a positive deviation of 0.675 Ha, approximately 2 acres. He acknowledged that there could be a possibility that the 2 acres could have been part of 832. He testified that 783 and 832 existed in the land registry records as properties in the Zea Settlement Scheme and when he visited the Settlement Fund Trust, they were also in their records. He stated that where the ground acreage and RIM differ, it is the ground boundaries that are corrected.
14. He stated that when compiling scenarios 1 and 3, the shaded area was the difference. The fenced part in scenario 1 was in excess by 2 acres. Additionally, that if the ground was to be corrected, he could not have arrived at the combined acreage. He also stated that the 3rd Defendant was present during the exercise.
15. When the court enquired about the sketch scenario 1 and the ground position, he stated that it was the barbed wire part and it was the one of 4.57 Ha. Further, that when compared with scenario 3 the unshaded part forms scenario 1 where the shaded area is 3.62 Ha and the unshaded area is 8.19 Ha. He stated that the owner of 783 uses all of the land up to the river, including the Riparian land.
16. He referred to his report and stated that Pt.33 (point 33) was the position of the river on the RIM whereas Pt.3 was the position on the ground and that the same applied to Pt.44 and Pt.4. Further, that Pt.3-33 and Pt.4-44 is the excess area on the map as confirmed on the ground. When the RIM is looked at, there is an excess in Hectares not reflected on the ground. From the diagram, that excess affects the two parcels of land as shown. When the excess is removed from 783, its size would be reduced to 1.88Ha and for 832 it is supposed to be 2.75 Ha. He concluded by stating that the map could be amended to show the land eaten by the rived off the parcels.
17. DW1 was recalled and she disputed the results of the survey, stating that the Plaintiff had a private surveyor and had his people attack her when survey was done. As such, she was not given a chance to show surveyors the boundaries that she was shown by the SFT.
18. During cross examination, she stated that she did not agree with the report and further, that when she got the land in 2015, she went with the surveyors who showed her the ground. When they arrived, the Plaintiff chased them. She further stated that she received her allotment letter dated 12/01/2025, paid for the parcel and when she was allotted, there was no one occupying it. The plot is neighbored by 783 and 782 and is approximately 10 acres. She additionally stated that she sold the land to Davison and could not recall when it was but stated that she sold 5 acres for 3,250,000/-. She urged that when it rains the river floods and that it takes a lot of her land and further, that the survey was conducted when it was dry.
19. DW2 was the 4th Defendant. He adopted his witness statement dated 04/04/2018 and stated that DW1 sold him 10 acres out of ZEA/SETTLEMENT SCHEME/832 but he paid half the sum being Kshs. 1,625,000/- He produced the sale agreement as D-Exh4. In cross examination, he stated that he did not know of the dispute before buying and he was never shown the beacons. He paid for half of the land and later, the Plaintiff built on the land he was shown by the seller. He conceded that he did not conduct an official search but from the search at the SFT, the 3rd Defendant was registered as the owner.
20. Crescentia Atieno testified as 2DW1. She was a Lands Settlement officer in Trans Nzoia County and she had the files for parcel no. 783 and 832 Zea Settlement Scheme for which the acreages were approximately 3.7 Ha and 4.1 Ha respectively. That 783 was allocated to the Plaintiff and has not been discharged and there was no transfer between the Plaintiff and Joshua Kibiego Kwonyike. The parcel file was produced as 2D-eXh.1. She further testified that parcel no. 832 was allocated to the 3rd Defendant and was discharged in 2016 which discharge was given when the Settlement Fund Transfer loan was repaid. The SFT signed a transfer form in favor of Eunice on 09/09/2016. She produced the panel file as 2Dexh2.
21. The witness further testified that she had the final list for Zea area settlement scheme and there were plot parcels between nos. 783 and 832 in the initial allocation. She produced the area list as 2DExh-3. She stated that the map bears both plots and was prepared in October 2003 before allocation. She produced the map as 3DExh-4.
22. It was her further testimony that she had read the surveyors’ report and stated that the discrepancy, while referring to the diagram in the report, was that the shaded part is shown as the river position on the ground and when the acreage shown above the river is added to the unshaded land, it adds up to the acreage that the allottee of 783 was given and Pt 33 is described as the position of the river on the RIM. While Pt3 is described as the position of the river on the ground at the time of the report. Further, that at the time of allotment the river had moved from the position when the RIM was prepared in the year 2003. This caused parcel 783 to lose 2.07 Ha and 832 to lose 1.55 Ha. She stated that 832 should not be lost due to meandering.
23. During cross examination, she stated that allotment letters were issued to the parties and Joshua Kipyego was issued with a letter of offer dated 02/12/2002 for 3.7Ha. he paid Kshs. 98,000/- but the same was not discharged as he still had a balance which was Kshs. 23,527 as at 15/06/2016 which is unpaid to date. All earlier allottees were issued with allotment letters and no. 832 was allotted in 2015. The sum of Kshs. 66,300/- was paid on 12/01/2015 by the 3rd Defendant who additionally paid a penalty of Kshs. 69,500/- and was given a discharge on 19/09/2016. She stated that the riparian land was 30 meters from the river and the acreage was not supposed to include it. She differed with the surveyors’ finding that 832 was not on the ground and laid out the procedure for allotment as follows; that first the Director of Land Adjudication and Settlement acquires the land and then informs the Director of physical planning to make a physical development plan.
24. The Director then asked the director of survey to survey the land and after that the Department of Land Adjudication moves in to allocate. There were 822 allottees from the ADC but he informed them that there were more parcels for allocation including 832 to 845. Further, that the plot was between 782 and 783. She denied any records of the Plaintiff existing and stated that the SFT allocated 832 measuring 4.1 Ha to the 3rd Defendant. In re exam she clarified that each plot had old numbers given by ADC and new numbers given by the SFT and further, that plots 823 – 845 only had new numbers.
25. At the close of the pleadings, the 3rd and 4th Defendants filed submissions supporting their position whereas the Plaintiff did not file any submissions. This does not affect the determination of the suit on the merits. Submissions only amount to a marketing language of parties when they attempt to convince the Court to buy their view of the issues between parties. They only seek to enlighten the court on the parties’ perspectives. They do not constitute evidence or the law hence whether they are filed or not or considered or not it is neither here nor there.
Analysis & Disposition
26. This Court has considered the claim and counterclaim herein based on the parties’ pleadings, evidence and submissions. Only three issues lie for determination before me:
a) Whether Zea Settlement Scheme/783 and Zea Settlement Scheme/832 are the same plot
b) Whether the claim and counterclaim respectively are merited
c) Who to bear the costs of either or both the claim and counterclaim
I start with determining the issues that will lay ground for considering the rest easily.
a) Whether Zea Settlement Scheme/783 and Zea Settlement Scheme/832 are the same plot
27. This Court starts with this issue because by it it will be in a position to find if the parties are claiming the same ground or piece of earth. According to the Lands Settlement officer, the two parcels exist and on the contrary, according to the Surveyor, parcel Zea Settlement Scheme/832 only exists in the records and not on the ground. The findings of the Surveyor were based on the site visit he conducted and the report that he tabled pursuant to the orders of the court. He stated that there was a discrepancy of the acreage on the ground and in the Rim whereby there was a difference of 3.79 Ha. The Lands settlement officer’s explanation was that the plot emerged after movement of the river, as the survey was conducted in 2003. She further explained that the plot 832 was among the new numbers that were given to the plots, referring to the register. However, upon perusing the same, I noted that 832 was among those that did not have an old number, thereby raising doubts as to its existence.
28. Given that the 3rd Defendant was unable to show the boundaries for her land on the ground, and that the Surveyor conducted his survey and arrived at the conclusion that 832 did not exist, I am inclined to agree with the report of the surveyor. In any event, even if the plot existed, by virtue of the fact that the 3rd Defendant failed to comply with the conditions of the offer letter, she cannot claim to have acquired the parcel of land procedurally as discussed below. Sdsdff 783
b) Whether the claim and counterclaim respectively are merited.
29. The Plaintiff’s claim originates from the allegation that PW2, Joshua Kwonyike, sold him the parcel of land known as L.R No. 783 ZEA SETTLEMENT SCHEME vide a sale agreement dated 13/06/2008. PW2 produced a letter of offer that was dated 02/12/2002. The letter of offer was conditional, stating that he was to pay the full purchase price of within 12 months, in three installments. It emerged during cross examination that he paid the full amount on 31/05/2010, which was 8 years after the date of the offer. Evidently, this was a breach of the terms of the offer and as at the time of payment, the offer stood rescinded. He did not produce another letter or communication from the Land Adjudication Officer to show that the parcel of land was offered to him once again.
30. Additionally, PW2 sold the land to the Plaintiff on 13/06/2008 vide the sale agreement which he produced as P-Exh 5. The question that arises therefrom, is whether he had a transferrable interest in the land. He did not have title to the land by the time the transaction was entered into. Further, he had not paid any part of the purchase price and therefore could not sell any portion of the land to anyone.
31. The significance of offer letters and allotment letters was discussed in Philma Farm Produce & Supplies & 4 Others –vs- The Attorney General & 6 Others [2012] eKLR where it was held
“The petitioners’ claim is grounded on 2 letters of allocation of the suit properties. These letters do not confer proprietary rights but only a right to receive property or to be allowed on complying with terms and conditions stated therein. The right to be allocated the property is a contractual right and must be determined in accordance with ordinary rules and contracts…. it is in this respect that the Petitioners’ claim must fail………”
32. The Supreme Court affirmed this position in the recent decision of Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment) by holding that an allotment letter is incapable of conferring interest in land being nothing more than an offer awaiting the fulfilment of conditions stipulated. That an allottee in whose name the allotment letter is issued must perfect the same by fulfilling the conditions therein. He does so when he completes the conditions and obtains a title deed or certificate of lease to the land.
33. Joshua Kwonyike, having failed to fulfil the conditions stipulated in the offer letter, did not gain ownership of the property and consequently, could not have sold the land to the Plaintiff. Additionally, he could not be considered a bonafide purchaser for value in the circumstances. In Lawrence Mukiri v Attorney General & 4 Others [2013] eKLR a bonafide purchaser for value was defined as
... a bona fide purchaser for value is a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly. For a purchaser to successfully rely on the bona fide doctrine, he must prove the following:
a.He holds a certificate of Title.
b.He purchased the Property in good faith;
c.He had no knowledge of the fraud;
d.The vendors had apparent valid title;
e.He purchased without notice of any fraud;”
34. The Plaintiff failed to meet these conditions. The upshot of the foregoing is that PW2 did not have any interest to transfer to the Plaintiff. Therefore, the Plaintiff’s claim to ownership of the same lacks merit.
35. On her part, the 3rd Defendant produced an allotment letter issued on 12/01/2015 with regards to Zea Settlement Scheme/832. The conditions of the letter were that she was to pay a full purchase price of Kshs. 66,300/- within 90 days. She paid the amount on 15/10/2015 which was 9 months after the date of the offer letter. It follows that she equally or by the same token failed to comply with the conditions of the letter. That notwithstanding, however, a transfer was effected on 15/09/2016. It was evidenced by the production of a transfer form which was unsigned by the 3rd Defendant.
36. It is my considered view that she failed to perfect the letter by not complying with the conditions therein. I note that the Crescentia Atieno testified that the Defendant had paid a penalty of of Kshs. 69,500/-. However, there was no provision for a penalty and there was no evidence of payment of said penalty. There was no issuance of a demand or call for a penalty to show a renewal of the offer. Section 3(3) of the Law of Contract Act is clear that transactions relating to depositions of land ought to be evidenced in writing in the manner prescribed save for the two exceptions the law creates. It provides,
“No suit shall be brought upon a contract for the disposition of an interest in land unless—
(a)the contract upon which the suit is founded—
(i)is in writing;
(ii)is signed by all the parties thereto; and
(b)the signature of each party signing has been attested by a witness who is present when the contract was signed by such party:”
37. Consequently, the 3rd Defendant too has no claim to parcel number Zea Settlement Scheme/832.
38. It follows that both the Plaintiff’s Claim and the Counterclaim fail in their entirety. The upshot of the foregoing is that the Claim and Counterclaim are dismissed in their entirety.
39. If the parties desire to pursue their interest in the claimed parcel(s) of land and on which they settle, they are at liberty to follow the proper legal procedures on allocation of land.
C) Who to bear the costs of either or both the claim and counterclaim
40. I see no reason to depart from the general import of Section 27 of the Civil Procedure Act, Chapter 21 Laws of Kenya. Costs follow the event. In this case both events have shown failure of the claims put forth. Thus, each party shall bear its own costs.
Judgment dated, signed and delivered at Kitale Via the Teams Platform this 12th Day of June, 2025
Hon. Dr. iur Nyagaka
Judge
In the presence of,
Dr. Changorok (the Plaintiff)