1.This suit was instituted by way of the plaint dated 5th September 2017. The Plaintiff avers that he is the registered proprietor of land parcel Ikutha/Kitute II/90 (hereinafter referred to as the suit land) measuring approximately 20.45 hectares. The Plaintiff avers that in 2016, he had an ownership dispute over the suit land with the 1st defendant who is the father of the 2nd Defendant and who then instructed the 2nd defendant to enter into the land and establish a homestead therein.
2.The plaintiff claims that he is entitled to absolute ownership of the land and protection of the security of land rights and that the defendants are acting jointly and severally with a common intention of using, occupying and/or possessing his land in total disregard to the rule of law. Despite having given notice to the defendants to vacate the suit premises, they have refused, failed and/or ignored the notice. The plaintiff therefore prays for a declaration that he is entitled to security of land rights to the suit land and a declaration that the defendants do give him vacant possession and costs of the suit.
The 1st and 2nd Defendants’ defence and counterclaim
3. The defendants filed a defence denying that the plaintiff is the registered owner of the suit parcel of land and if the said parcel number exists, it was fraudulently registered in the name of the plaintiff and such registration is null and void ab initio.
4.The defendants accused the plaintiff of conspiring with the 1st defendant’s mother to falsify documents to have him registered as the owner of the suit land during the arbitration stage of the adjudication process.
5.The defendants also filed a counterclaim where they aver that the 1st defendant settled on and became owner of the plot of land which later after adjudication came to be known as Plot number 52 in Kitute between the years of 1984 and 1985. After the adjudication process, the records were forwarded to the director of surveys and the registrar of lands for purposes of issuance of title deeds but later on in 2010, the plaintiff and others colluded with the land demarcation officer to falsify documents and extracted a plot number 90 and transferred it to one Nduku Wambua. They particularized the alleged fraud as follows inter alia reopening the adjudication register without following legal channels, extracting plot number 90 from plot number 52 without following legal process, making alterations to the map, selling the extracted plot number 90 illegally and unprocedurally, conspiring to deny the defendants proceedings in appeal number 87 of 2016.
6.The defendants prayed that the plaintiff’s suit be dismissed with costs and judgment entered in their favour against the plaintiff declaring that the suit parcel’s title deed was acquired fraudulently, an order that the title to the suit property be cancelled and/or revoked and the Land Registrar Kitui County be ordered to process a new title deed to the suit property in the name of the 1st defendant as well as costs of the suit.
The Hearing of The Suit
7.Hearing of the suit began on 20th February 2024 and Joseph Gichugu Kariuki, the Plaintiff testified as PW1. He adopted his witness statement dated 29th June 2018 and produced in evidence his bundle of documents.
8.He stated that he came to the Kitui region between 2009-2010 while working with a group of farmers known as Mukau farmers based in Kibwezi. He befriended the chairman of the group, one Johnstone Mulinge and he had an interest in acquiring a piece of land to plant and grow Mukau trees.
9.The Plaintiff was introduced to the family of Nduku Lina Wambua who showed him a portion that was available for sale. They met at a lawyer\'s office in Machakos to draft the sale agreement in August 2010. He planted 1400 seedlings of Mukau and Muarubaini trees and constructed a temporary structure to house a herdsman who looked after his goats on the shamba. Later a gang led by the 2nd defendant chased the herdsman away and took some goats.
10.The plaintiff came to learn that land parcel 90 was carved out from parcel 52 which was awarded to Nduku Lina, the seller. During land adjudication, he got the land adjudicated in his name but the 1st defendant filed an objection. The 1st defendant won the objection but the plaintiff appealed to the Minister and the land was registered in his name and later title deed was issued to him.
11.Since 2016, the 2nd defendant invaded his land constructed a temporary hut and has been cultivating, and cutting down all his trees. The Plaintiff prays that the 2nd defendant be removed from the land. He testified that the court cannot grant the orders sought by the defendants in their counterclaim unless the Minister’s decision has been quashed and set aside. He told the Court that he had information that the 1st defendant was deceased.
12.The Plaintiff produced documents including photographs showing a temporary house on the suit land that was burnt by the 2nd defendant, the agreement for the sale of the suit property dated 25/8/2020, objection proceedings and the appeal to the Minister.
13.PW 2 Wambua Mwania, the 1st defendant’s brother adopted his statement dated 19th November 2019 as evidence. He testified that he was born in Kinakoni, Voo location of Kitui County but they later migrated to Taita-Taveta together with the 1st defendant in 1968. The 1st defendant moved to Mombasa while PW 2 and his mother moved to Kambu at Ndaranjani. While there, his mother heard that people were being given land at Kitute II. They met with some elders and were taken around a piece of land at Athi River and their mother was asked to give the elders porridge to show gratitude.
14.They formally moved to Kitute II in March 1978 into their parcel of land, constructed houses cleared and prepared a shamba and started farming. They stayed in possession, occupation and use of the land in Kitute II 1983 when the adjudication exercise came to the area. The 1st defendant demanded that the land should be adjudicated in his name as the eldest son and their mother had wanted the land to be surveyed in her name. On the morning of the adjudication exercise, the 1st defendant got himself adjudicated as the land owner.
15.In 2006, the 1st defendant sold a portion of the land and their mother summoned the clan in July 2007. The 1st defendant finally agreed that the portion of land he had sold should be his share and the remaining portion should be the share of his other siblings and mother. He signed the decision of the clan in his presence.
16.After the agreement, he and his mother visited the land\'s office and a portion measuring 20 acres was carved out and named Parcel 52 in the name of the 1st defendant and the other portion was known as Parcel 90 recorded in the name of their mother.
17.Later on, their mother was introduced to the plaintiff who was an investor and sold the said parcel 90 to him. However, the 1st defendant changed his mind and lodged an objection and was granted the entire property but their mother appealed to the Minister and won the appeal and the title was granted to her.
18. The witness identified the 2nd defendant as Kikuyu John or Kasee Kikuyu and is the 1st defendant\'s son and therefore his nephew currently he is imprisoned as he was convicted of murder.
19.PW 3 Joseph Bernard Kimuli adopted his witness statement dated 15th October 2019 as evidence. He stated that he was the secretary of the clan and had received a report from Lina Nduku that her son, the 1st defendant had secretly registered himself as the owner of her land. He was already aware that Lina Nduku was the one who acquired the land in Kitute II and moved her family there.
20. The witness summoned the members of the clan under the instructions of the chairman. They met on the 27th and 28th of July 2007 and decided that the portion approximately measuring 20 acres of the original land that was sold by the 1st defendant should be his portion and the rest of the land would be for his younger brothers. They left Lina Nduku with the agreement to take to the adjudication officer to implement. He later came to know that the portion sold by the 1st defendant was given parcel No.52 and the other part No. 90 was issued in the name of Lina Nduku. The witness identified Lina Nduku as his aunt and the 1st defendant as his 1st cousin as well as the 2nd defendant who is also known as Kasee Kikuyu John who was present in court.
21.PW 4 Nduku Lina Wambua adopted her witness statement dated 15th October 2019. She stated that the 1st defendant is her son and that the 2nd defendant is the 1st defendant\'s son. She got married in Kisasi Village in Kinakoni, Voo location, Kitui County but her husband passed away in 1966. They suffered famine and financial problems in Kisasi village therefore she moved to Taita Taveta where her brother-in-law lived since there was plenty of food. She lived there for 2 and a half years and then moved to Kambu at Ndarajani for 5 years.
22.Her sons PW 2 and the 1st defendant acquired a flock of cows and goats and she heard that people were being given land in Kitute II. She instructed PW 2 to move and start looking for land. She acquired land in the area and gave the elders what is known as porridge for Ksh.400/= and settled on the land. At the time, the 1st defendant worked in Mombasa at Severin Sea Lodge.
23.In 1983, land adjudication started in their area and the 1st defendant secretly went to see the land adjudicators and the land was adjudicated in his name. After some time, the 1st defendant sold land and she called the clan who decided that the portion approximately measuring 20 acres of the original land that was sold by the 1st defendant should be his portion and the rest of the land would be for her and her other children. The decision was presented to the land adjudication office. The 20 acres sold by the 1st defendant were allocated parcel number 52 and she was issued with parcel 90 in her name.
24. She sold her land parcel 90 to the plaintiff who was interested in planting Mikau seedlings on it. She later on learnt that the 1st defendant invaded the plaintiff\'s land destroyed and demolished his house and chased away his workers. The 1st defendant lodged an objection in adjudication but she won at the appeal to the Minister.
The Defendants Case
25.The law firm of B. M. Musyoki & Co. Advocates then acting for the two defendants filed an application to cease acting for the defendants and the said application was allowed on 18th April 2022.
26.On 5th July 2022, the court confirmed that the 1st defendant was deceased and made orders marking the suit against him and the counterclaim filed by him as having abated.
27. The 2nd Defendant was subsequently served with court documents through the Officer-in-Charge Kitui Prison. When he attended court he claimed that he was not the person sued as the 2nd Defendant since his name was not Kikuyu Imu Wambua but his name was Kasee Kikuyu John and he had never been served with court documents relating to this case.
28.The court on 21st September 2023 directed that the 2nd Defendant be served with pleadings in this case and he was given time to file documents in reply. The court record shows that at the time of the hearing of the suit he had not filed any documents.
29. When the Plaintiff closed his case, the 2nd defendant, Kikuyu Imu Wambua alias Kasee Kikuyu John declined to give any evidence stating that this was not his case and he was not aware of it. The Court deemed the defence case as closed.
The Plaintiff’s submissions
30.Counsel for the plaintiff summarized the plaintiff’s case and the documents filed and produced in court. He submitted that the 1st defendant is the father of the 2nd defendant. Midway through the trial proceedings, the 1st defendant passed away and the 2nd defendant was arrested, charged and convicted with murder and was serving his sentence at the time of hearing of the suit. The suit against the 1st defendant abated and the law firm acting for the defendants ceased acting for them. Counsel submitted that the 2nd defendant was duly served with the pre-trial bundle as per the directions of the court but denied being the same person named as the 2nd defendant. However, relatives confirmed his identity during the hearing.
31.Submitting on the issues raised for determination, the plaintiff referred to the history behind the acquisition and proprietorship of the suit land by the plaintiff, as given by the plaintiff’s witnesses’ testimonies and exhibits produced. Counsel referred to the decision of the Minister’s appeal.
32.Counsel stated that the plaintiff issued notice dated 29th August 2017 to the 2nd defendant to cease trespassing on his land. The plaintiff submits that this was an invasion of the security of his land rights under Article 60(1)(b) of the Land Act No.6 of 2012 and Section 4(2)(c) of the Land Act No.6 of 2012. They also referred to sections 24, 25 and 26 of the Land Registration Act. Counsel relied on the cases of Willy Kipsongok Mosogo v. Albert K. Morogo(2017)eKLR and Philip Ayaya Aluchio v. Crispinus Ngayo(2014)eKLR.
33.On the prayer for eviction, counsel relied on the holding in the cases of Eliud Njoroge Gachiri v. Stephen Kamau Ng’ang’a(2018)eKLR and WW v. Severin Kinyanjui Njoroge & another(2021)eKLR and submitted that the violation of the aforestated rights and privileges of a proprietor is protected vide the issuance of eviction orders which eject the trespasser or intruder from the suit land.
Analysis and Determination
34.The Court has considered the Plaintiff’s claim against the defendant, the defence filed by the Defendants, the evidence adduced during the trial and submissions by Counsel. The Court considers the following as the issues arising for determination.
A)Whether the Plaintiff is the absolute proprietor of the suit parcel of land Ikutha/Kitute II/90 and if so what rights accrue from such proprietorship.
B)Whether the Plaintiff acquired the title deed to the suit land fraudulently and if so the consequences of such a finding.
C)Whether the Defendants interfered with the Plaintiff\'s ownership and possession of the suit land.
D)Whether the Plaintiff is entitled to the orders sought in the Plaint and whether the 2nd defendant is entitled to the orders sought in the counterclaim.
E)Who shall bear the costs of this suit$1
ISSUE 1: Whether the Plaintiff is the absolute proprietor of the suit parcel of land Ikutha/Kitute II/90 and if so what rights accrue from such proprietorship.
35.The Plaintiff’s complaint against the Defendants was for occupying and/or taking illegal possession of his parcel of land known as Land Parcel No. Ikutha/Kitute II/90 measuring approximately 20.45 hectares. The Plaintiff produced a title deed to the suit land showing that he is the absolute proprietor of the land without any encumbrances. He stated that he acquired the parcel of land after having purchased it from one Nduku Lina Wambua who was a witness in this case as PW 4.
36.He produced proceedings of the Appeal to the Minister Appeal number 87 of 2016 Kitute II Adjudication Section in which Nduku Wambua and Joseph Gichuki Kariuki (the Plaintiff herein) were the Appellants while John Imu Wambua (the 1st defendant herein) was the respondent. The findings and final determination of the said appeal were that “The Appeal to the Minister case No. 87 of 2016 is allowed and plot number 90 is awarded to the Plaintiff Joseph Gichuki Kariuki.”
37. Section 29 of the Land Adjudication Act CAP 284 Laws of Kenya makes provision for the Appeal to the Minister in the adjudication process. the Minister’s appeal is the final stage of the entire process of ascertainment and recording of land rights as was held in the case of Lepore Ole Maito –vs- Letwat Kortom & 2 Others [2016] eKLR that:
\"The Land Adjudication Act sets an elaborate procedure through which the rights and interests of all persons is to be established and once that process and procedure is followed and completed the determination of such rights and interests is final. The Act provides an appropriate mechanism for the resolution of any disputes. The Minister is the apex in that dispute resolution mechanism and once an appeal is made to the Minister and determined under the provisions of Section 29 of the Act, such determination is deemed final and is not subject to any appeal.
38.Sections 27 and 28 of the Land Adjudication Act provide that after the decision of the Minister’s appeal is made, the adjudication register for the area is forwarded to the Director of Land Adjudication where it is then forwarded to the Chief Land Registrar to enforce the Ministers decision. In particular, Section 28 states that:
Upon receiving the adjudication register under section 27 of this Act, the Chief Land Registrar shall cause registrations to be effected in accordance with the adjudication register:
Provided that, where the land is affected by an appeal under section 29 of this Act, a restriction shall be made and registered in respect of that land expressed to endure until the determination of the appeal, and on such determination, the register shall if necessary be altered in accordance with the determination.
39. From the evidence adduced in court, the decision in the Minister’s appeal was not challenged. The Plaintiff was issued with the title deed on 9th February 2017 a copy of which was produced in court. Section 26 of the Land Registration Act provides that:
“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; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme
40. Section 24 provides for the interest conferred by the registration of a person as the absolute owner of the land and states that;
(a)the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto; and
(b)the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest described in the lease, together with all implied and expressed rights and privileges belonging or appurtenant thereto and subject to all implied or expressed agreements, liabilities or incidents of the lease. Rights of a proprietor.
41.Section 25 sets out the rights conferred to a proprietor of land and states that;
(1)The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject—
(a)to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and
(b)to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register.
(2)Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject as a trustee.
42.The Court thus finds that since the title deed held by the Plaintiff was not challenged, he holds it as the absolute proprietor of the suit parcel of land Ikutha/Kitute II/90 together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever lodged by the 2nd Defendant.
ISSUE 2: Whether the Plaintiff acquired the title deed to the suit land fraudulently and if so the consequences of such a finding.
43.The defendants in their defence challenged the Plaintiff’s title on the grounds that it was obtained fraudulently thus invoking the provisions of Section 26 (a) and (b). The 1st defendant is deceased and as earlier stated, the suit against him abated by operation of the law under Order 24 rule 4(3) of the Civil Procedure Rules.
44.The 2nd defendant was arrested, charged and convicted of murder and at the time of hearing of this suit he was an inmate at the GK prison in Kitui. As detailed elsewhere in this judgment, the 2nd defendant was accorded an opportunity to be heard and the Court on 21st September 2022 ordered that he be produced from prison and be served with the court pleadings. He denied being the same person named in this suit Kikuyu Imu Wambua and also denied instructing the firm of B.M Musyoki to represent him.
45. However, during the trial when the 2nd Defendant attended court, the plaintiff positively identified him as the person he had sued. The witnesses who testified PW 2 AND PW 4 are the 1st Defendant’s uncle and grandmother respectively and they positively identified him.
46.An affidavit of service sworn by Alfonso Musembi Kilonzi on 9th October 2023 confirmed that the 2nd defendant was served with a copy of the trial bundle booklet on 27/9/2023 at the Kitui main prison. The 2nd defendant was produced and brought to court during the hearing but declined to give any evidence. It is noted that even though the 2nd Defendant denied having instructed the firm of B. M. Musyoki & Co. Advocates to represent him the said law firm entered appearance and filed a defence and bundle of documents on his behalf jointly with the 1st Defendant and the 2nd Defendant did not file a defence and/or documents independent of what was filed by the said advocates. It is also noted that the 2nd Defendant cross-examined the Plaintiff and his witnesses.
47.It is trite in law that documents not produced during trial cannot constitute evidence in the suit. As it was held by the Court of Appeal in the case of Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR:
“First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; …”
48.While the defendants challenged the title and pleaded particulars of fraud, the particulars were not proven as is required by the law. It was held by the Court of Appeal in the case of Vijay Morjaria v Nansingh Madhusingh Darbar & another [2000]eKLR that:
“It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these acts were done fraudulently.”
49.The Court thus finds and holds that the indefeasibility of the Plaintiff’s title stands since it was not shown that it was acquired through fraud or misrepresentation. It was also not shown that the title was acquired illegally, unprocedurally or through a corrupt scheme.
ISSUE 3: Whether the Defendants interfered with the Plaintiff\'s ownership and possession of the suit land.
50.The Plaintiff complained of unlawful trespass onto his property which caused a violation of his fundamental land rights under Article 60. As a registered proprietor whose title has not been challenged, the Plaintiff enjoys several land rights as enshrined in Articles 40 and 60(1)(b) of the Constitution of Kenya solidified under the Land Registration Act.
51.The Plaintiff’s counsel submitted on rights conferred under Section 26 of the Land Registration Act and relied on the case of Willy Kipsongok Morogo v Albert K. Morogo [2017] eKLR: where the court found that:
The evidence on record shows that the suit parcel of land is registered in the names of the plaintiff and therefore the plaintiff is entitled to the protection under sections 24, 25 and 26 of the Land Registration Act 2012.”
52. The defendants did not deny occupation of the suit land and indeed in paragraph 5 of the defence, they stated that the 2nd Defendant had been in occupation of the suit land since the early 1970s and they claimed that the Plaintiff was the trespasser to the land.
53.Having found that the Plaintiff is the absolute owner of the suit land entitled to all rights conferred by law, the court is convinced that the admitted occupation of the suit land by the 2nd defendant is a violation of the Plaintiff’s right to ownership and possession of the suit land as conferred under Sections 24, 25 and 26 of the Land Registration Act.
ISSUE D: Whether the Plaintiff is entitled to the orders sought in the Plaint and whether the 2nd defendant is entitled to the orders sought in the counterclaim.
54.Counsel for the Plaintiff relied on the holding in the case of Eliud Njoroge Gachiri v Stephen Kamau Ng’ang’a [2018] eKLR to support the prayer for eviction where the Court made orders granting an injunction against a trespasser, vacant possession of the suit land and in default order of eviction.
55.In the present case, and given the totality of the evidence adduced and evaluated above, the Court finds that the plaintiff has proved his case on a balance of probabilities that he is entitled to the orders sought in the plaint.
ISSUE F: Who shall bear the costs of this suit$2
56.The court finds that the Plaintiff is entitled to the costs of this suit against the 2nd Defendant.
57.The final orders of the court are that judgment is hereby entered in favour of the Plaintiff against the 2nd Defendant as follows:
1)A declaration is hereby made that the Plaintiff is entitled to security of land rights to land parcel IKUTHA/KITUTE 11/90
2)A declaration is hereby issued that the 2nd Defendant does give to the Plaintiff vacant possession of the land parcel IKUTHA/KITUTE 11/90 within sixty (60) days from the date of this judgment and in default the 2nd Defendant be forcefully evicted from the land.
3)The counterclaim by the 2nd Defendant is hereby dismissed.
4)Costs of this suit are awarded to the Plaintiff to be paid by the 2nd Defendant.
Dated, Signed and Delivered at Kitui this 17th Day of October 2024
L. G. KIMANI
JUDGE
Judgement read virtually in the presence of
Kilonzi for the Plaintiff
2nd Defendant present in person ( Kikuyu Imu Wambua alias Kasee)