Introduction
The Petitioner commenced this suit vide a petition against the Respondents that was further Amended on 17th September, 2019 seeking the following orders:
a) A declaration that the government and the Respondents have violated and/or likely to violate the Constitutional rights of the Petitioner and its members.
b) A declaration that the Petitioner was the lawful owner of the two parcels of land L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 as at the time the government transferred the same to the 1st Respondent on 8th October, 1979.
c) A declaration that the transfers to the 1st Respondent dated 8th October, 1979 were null and void ab initio.
d) An order cancelling the transfer Entry No. 7 on GRANT NO 1.R 17260 of L.R NO. 10365 and Entry No. 9 on GRANT NO I.R 17309 of L.R NO. 10337 and;
e) An order that the 1st Respondent or the interested party do transfer the two parcels of land L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 (FORMERLY L.R NO. 10337) to the Petitioner and in default the Deputy Registrar of this Honourable court be authorized to execute all relevant documents to give effect to the orders of this court.
f) An order prohibiting the 1st Respondent or any other officer of organ of government, their servants or agents from disposing, transferring, subdividing, leasing or in any manner whatsoever dealing with the two parcels of Land L.R Nos L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 (FORMERLY L.R NO. 10337)
g) In the alternative to the foregoing prayers, an order that the government through the Respondents do compensate the Petitioner by paying the equivalent of the current value in Kenya Shillings of the two parcels of land L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 (FORMERLY L.R NO. 10337)
h) An order that the Respondents do compensate the 107 members of the Petitioner for violation of their rights to freedom and access to justice.
i) Costs of this Petition.
j) Any other or further orders and relief as this Honourable Court may deem fit and just to grant.
Plaintiffs’ Case
Nathaniel Kiongo Githua an advocate of the High court since 1972 testified as PW1 where his statement filed on 19th October, 2023 was adopted as his evidence in chief. He testified that in 1975 he was approached by a group of people where they were negotiating to buy a farm. He further testified that he incorporated the Plaintiff’s company. He added that they later found Kerma Ltd farm where they negotiated on behalf of the Plaintiff. He also testified that the farm’s advocates were Dally and Figis with their advocate Mr. PJ Henett.
He went on to testify that he received the letters dated 18th October, 1978 at page 148 PEX 1, letter at page155 PEX 2 and the letter dated 28th July, 2008 at page 156 PEX 3. It was his testimony that the Plaintiff paid the purchase price and when they took possession, 107 persons were arrested and charged with trespass. It was his testimony that they were convicted for trespass but later acquitted on appeal. He testified that the Kerma limited, the vendor did not transfer the property to the Plaintiff. He added that there was a lot of interference from the government as the minister never allowed the transfer. He testified that the purchase price was never refunded and that the transfer was not effected.
On cross examination by Langat for the 4th to 129th Respondents, PW1 confirmed that he took part in registration Matuguta in 1975. He however admitted that he did not have the certificate. He stated that the objective of the company was to provide land. He also admitted that he could not recall the monies paid though the money was paid in 2 instalments via KCB. He stated that the completion time frame was given and that he had not visited the property. He also stated that after their arrest, he stopped acting for them.
Upon cross examination by Muthuri for the 1st and 2nd Respondent, he confirmed that they did not sign any transfer documents. He further confirmed that they drew a sale agreement but admitted that he did not have it. He also stated that 45 years ago, he conducted a search before the sale and that Kerma Ltd was the owner of the land. After the sale agreement there was another transaction.
Upon cross examination by Ragut for the 19th Respondent, he stated that the sale agreement was prepared by Daly and Figis. He confirmed that he did not have the sale agreement or evidence of payment. He also confirmed that he was not aware of any shares in the company. He further confirmed that he did not have the Petitioner’s records. He added that he did not have any evidence of an appeal.
Upon cross examination by Niuster for the 3rd Respondent, PW1 confirmed that in 1978, he was practicing as Githua and company advocates after which he moved with the file. He stated that after 12 years all the files that didn’t have anything pending were destroyed. He confirmed that he burned the file. He also confirmed that there was no evidence of deposit. He stated that he was instructed to act for the parties. He further stated that his letter dated 28th July, 2008 had no relationship with the present case. He stated that from his memory, the 1.8 million was paid to the law firm of Daly and Figis.
Upon cross examination by Mr. Anan for Bamboo Limited PW1 stated that he partially did the transaction and that he blamed Jackson Angaine, the minister for Lands and settlement. He also stated that he had complied, gave his evidence and that he had registered the 107 individuals. He further stated that the Directors of Kerma were deported.
Upon cross examination by Kagunda for the 23rd Respondent, he stated that the Director of settlement cancelled the allocation.
Upon re-examination, PW1 stated that he destroyed the files that were not active and added that was no one to revive the case.
James Wanyama Ruitha testified as PW2 where his statement dated 30th August, 2023 was adopted as his evidence in chief. He testified that he was a real estate consultant, Land Economist and a registered valuer. The witness was stood down in order to avail the valuation report.
Francis Maina Mwangi testified as PW3 where his affidavit sworn on 4th September, 2012 and witness statement dated 30th August, 2023 was adopted as his evidence in chief. He testified that he was the director of the petitioner, Matuguta. He also produced documents at page 9 of the bundle as PEX 4 to PEX 21. He also produced that documents at page 160 as PEX 22-PEX 26. He also produced the valuation report as PMFI 27 and PMFI 28. It was his testimony that they bought land from Kerma Ltd vide an agreement dated 11th August, 1977 at a consideration of Kshs.1,860,000/=. He testified that they had a transfer signed by Kerma and an LCB consent LR 10337 and 10365. He further testified that they were not given the title but that the owner Rosedine Astald Vadus gave them possession
He went on to testify that before they could settle on the land, GSU came and evicted them and they were charged with stealing and trespass. He testified that they were 107 people who were members of the petitioner. He testified that they were fined a total of Kshs. 1000. He added that this was in 1979 and that the complainant was Jackson Angaine. He testified that they appealed the case of 1978 and succeeded. He testified that they were to be refunded their money. He further testified that they never saw the complainant and added that the land was taken up by settlement fund trustees (SFT). He testified that they went back to the land but they were stopped by the government. He further testified that they found that the land belonged to Kerma. He added that they did not come to court as they feared the government.
He testified that they later approached the court in 2012 due to the new conditions. He testified that the then president ordered that they be given 400 acres but the same was grabbled. He also testified that he did not have the sale agreement and receipts since the police confiscated their documents. He further testified that they purchased the land from the mzungus and that the land later given to influential people. He testified that Phares Goten the Director of Settlement was given landless No.1. being 287 acres, Rastus K Mbijiwe given 40.5 Ha, Rebecca J Kimotho 100 acres, Bernard Kairie Njiiru. given 20.5 acres and parcel number 5 was given to Peter Ikenye 20.5 acres. It was his evidence that the said persons were very senior persons in government. He testified that the petitioner was not given land and that Kerma was not paid anything by the government. He went on to testify that the Settlement Fund Trustee was registered on 8th October, 1979 and the charge on 15th August, 1979. PW3 testified that Michael Gatu was allotted on 15th August, 1979. He testified that search was done on the existing titles. He added that there was no entry of subdivision or surrender or co-owners to the land. It was his testimony that registration was opened on 29th May, 1984. He testified that the land was titleless with only 2 titles for LR 965 and 10365. He added that the file was in Nairobi and that it had 456 acres. He urged the court to give the petitioners their land.
PW2 was recalled where he produced the valuer’s report as PEX 27 together with the receipt as PEX 28. He testified that the last entry was a court order dated 26th September, 2012 in the HCCC Pet No. 391 of 2012 which stopped registration of any dealings until hearing and determination of the suit. He testified that the court order was registered on 11th October, 2023 and that the entries applied to both titles. He testified that the value of the two properties were Kshs. 6,870,000,000/=. He went on to testify that the two properties were developed with various residential houses, institutions, churches, schools. He testified that he charged Kshs19,963,600 as his costs.
Upon cross examination by Muthuri, PW2 stated that the report did not cover the developments.
Upon cross examination by Ragut, he stated that he had received instructions from the petitioners on 14th September, 2023. He stated that he had been furnished with copies of the titles and applied for a search but that they did have the search results. He confirmed that they relied on the search done on 8th August, 2013. He also confirmed that they used the original survey maps which confirmed that the two parcels had been subdivided.
Upon cross examination by Nuister for the 20th Respondent, PW2 stated that the acreage in titles were discernible in the titles, deed plan and survey map. He stated that the deed plan was with the director of surveyor. He further stated that the area for L.R 10365 was 287.5 acres.
Upon cross examination by Annan, he stated that he was given the instructions verbally 2 days before 14th September, 2023 and that the invoice was yet to be settled. He further stated that their report was dated 14th September, 2023. He added that they did not value the developments. He stated that there were subdivisions and that the original titles were extinguished.
Upon cross examination by Mungai, he stated that the petitioners were his clients and that he was given the titles for valuation. He further stated that he did not know the existing tenure of the land. He added that he had not seen the title of the people who had developed. He further stated that his investigation was that the claim was against SFT and not individual title owners. He added that he had not taken interest in the nature of the Respondent’s title. He stated that he had not carried out individual searches for the Respondents. He further stated that valuation was only for the land titles which he stated were registered under R.T.A He stated that it was a leasehold for 945 years form 1st January,1960 and that he was not aware of the government title holders land tenure. He admitted that they did not conduct a search and that there was no land in the name of Kerma. He also stated that he was not sure if the two titles subsisted. He stated that he was not aware what S.F.T did to purchase the property. He added that R.L.A titles were hardly issued in Nakuru. He stated that if the two title were cancelled, it would not have been possible to do valuation.
Upon re-examination, he stated that he visited the land and also relied on the documents. He stated that he was to establish the land using the map, survey plan and deed plan. He stated that he would have carried out a different valuation if he was to include the R.L A titles. He stated that the two parcels had long leases. The first one being 10337 which was for a term of 946 years from 1st April, 1960 and the second parcel was for 943 years from 1st January, 1960. He stated that there was no evidence of subdivision or surrender. He added that there was no conversion.
PW3 was recalled and upon cross examination by Muthuri, he confirmed that they did an agreement on 11th August, 1977. He also confirmed that he was not sure of the number of people who had signed agreement. He admitted that he was not present when the agreement was made. He also admitted that he was not a witness. He stated that they paid 1.8 million to Daly and Figs Advocates. He further stated that every member gave 7,500/=. He stated that he misplaced the receipts. He also stated that they did not attend any land council board. He stated that they tried to follow up in vain. He also stated that he was not certain whether there was a transfer. He stated that they had bought land measuring 1,252 acres, LR 10337 was 955 acres and LR 10365 was 465acres from the mzungu.
Upon cross examination by Kibe, PW3 stated that they filed the case in 2012. He stated that SFT restrained them from occupying the land. He further stated that they had no case against the other Respondents on the land. He added that they were challenging the titles under R.L.A. He stated that their problems begun in 1977 up to 1979. He stated that he was not aware of the old constitution. He stated that the Respondent took their land which was against the constitution. He added that he did not know whether the Land Registration Act 2012 existed. He stated that they used to pay the advocates Daly and Figs. He also stated that the receipts given got lost in court while other documents were confiscated. He admitted that they had no records. He also admitted that he did not have a copy of the agreement but only had the transfer. He stated that he saw the word transfer on the document but could not confirm the transfer instrument. He stated that he did not know how the transfer was done. He urged the court to order that the entries be cancelled. He stated that they paid Kerma but that there was no transfer. He further stated that the Petitioner could not get the transfer since the government intervened and that they were violently beaten by GSU.
He stated that he had no issue with the Settlement Fund Trustees allottees since they have the title, however, he stated that they bought the land from Kerma. He stated that in 1979 the land was not occupied. He added that in 2012 he had found people who had occupied the land. PW3 stated that Settlement Fund Trustees (SFT) illegally registered the land in their name. He further stated that SFT grabbled the land form them. He stated that the Petitioners never placed any caution. He added that they placed a caution in 2012 through a court order. He stated that there was no evidence that the Petitioners were on the land. It was his prayer that the government pays them and that they be given the land.
Upon cross examination by Ragut for the 19th Respondent, PW3 stated that the sale agreement showed the two parcels of land 10337 and 10365. He confirmed that there was a caution by Kagunda on 19th July, 1974 stopping any further transaction. He stated that the caution was removed on 1st December, 1978. He stated that the agreement was on 11th August,1977 while the caution was on 19th July, 1974. He further stated that the caution was removed on 23rd January, 1978 and the transfer to SFT was on 8th October, 1979. He stated that there was no transfer to the Petitioners.
Upon cross examination by Nuister, he stated that they entered the land in 1975. He admitted that he was not aware when the petitioner’s company was registered. He confirmed that he gave Kshs7,500 for purchase of the land. He stated that they paid the chairman who paid Daly & Figis Advocates. He also confirmed that the firm did not have their records. He stated that they did a search of the firm and that were told that the company did not exist. He further stated that in 1979 Lovatelli was deported after their eviction. He stated that Lovatelli had been taken to state house where he signed the transfer. He confirmed that he had not seen the transfer as he had only been told by the chairman. He stated that they followed up with the then president and Attorney General Charles Njonjo.
Upon cross examination by Annan, PW3 stated that they were 600 people who bought the land. He confirmed that some of them had not paid. He further stated that the president allocated them 400 acres but they never got the same. He stated that Phares Goten occupied the land.
Upon re-examination, he stated that they went to Daly and Figis, they were informed that Daly had died. He stated that he did not know who did the transaction at the advocates office. He stated that there was no letter by the Settlement Fund trustees and that the government had given them the search. He stated that he did not know how the Respondent took possession of the land. He further stated that he lost the agreement, registration receipts and constitution. He added that Kerma never informed them that they were not selling the land. He stated that the land was bought for 2,302,000 (10365LR). He further stated that they were given 400 acres by the former president Moi and that Goten cancelled the allotment.
David R Wachira Wahome testified as PW4 where his statement dated 30th August, 2023 was adopted as evidence in chief. He testified that he worked with the Kenya Government police department at the Nakuru District level from 1971 as a field officer. He testified that he worked under an European Jack Allan Miller. He further testified that his duties included matters security and land purchasing by companies. He testified that such companies were for Africans rebuying land from Europeans. He testified that he had an interest with the owners of the group Kerma farm. He testified that the owner was Rosedine Astald Vadus and Max Lovatelli. He further testified that there was a case that involved the members of the Petitioner where Kerma Directors gave evidence that he had sold the farm to the Petitioners. He went on to testify that when they appeared in court he was served with a deportation order. He testified that he was called to the office by his provincial boss accompanied by Jack. That he was later given instructions to escort Jack Allan to the Lanet Airstrip where he found the immigration officer who took him away. He testified that he did not handle Lovatelli.
Upon cross examination by Muthuri, PW4 confirmed that the special branch dealt with intelligence in Kenya being the current NIS. He confirmed that he dealt with many land buying companies but not involved in their transactions. He stated that he knew Kerma from his boss. He confirmed that he was not present during the transaction. He stated that his boss had paid all monies. He confirmed that he was present when the Petitioner took over the land. He stated that he knew that some government officials wanted to take the private land. He stated that he shared the information with his bosses. He stated that he did the report but that he did not have it with him. He further stated that he did not know how Lovatelli left the country. He stated that Rosedine was deported in 1977. He confirmed that he had not seen the transfer documents. He stated that Settlement Fund Trustees had wanted to buy the land form Kerma.
Upon cross examination by Kibe, he stated that he was a special branch officer and that he had taken oath. He stated that he could not remember the dates. He further stated that he had collected intelligence. He admitted that he did not have a single document. He stated that the information he had did not include the transfer. He also stated that he knew that they were handing over the property but was not certain of the title. He added that Rosedine had been deported before commencement of the case. He stated that judgment was delivered on 8th February,1979 and that the then president was Jomo Kenyatta. He stated that Lovatelli was in Kenya up to when Kenyatta died. He stated that he did not know the people who wanted the land. He confirmed that he did not know the owner of the land. He also confirmed that the land was transferred to SFT in 1979. He added that he did not make the decision for deportation.
Upon cross examination by Ragut, PW4 stated that Lovatelli was deported in 1979 while Rosedine was deported in1977. He stated that he received the deportation information from his boss. He confirmed that he had not seen any sale agreement.
Upon cross examination by Nuister, he stated that he was a banker before joining the Kenya Police. He stated that he was at the Special branch all the time which later became N.S.I.S. He stated that he was to assist the court reach a just determination. He confirmed that he was not aware of the in-depth issues in the matter. He further confirmed that they would disobey unlawful commands. He stated that he knew Phares Gota as the Director of Settlement, Rebecca Kinuthia as the wife of George Kinuthia attached to special branch, Erastus Njiiru was president escort commandant and Martin Ruto was the aid in camp to Moi.
Upon cross examination by Annan, he confirmed that he had entered the force in 5th May, 1971 and left in 2002. He stated that as a field officer he was tasked to collect information including that of the Petitioner among others. He stated that there were no discussions that involved the sale of land to Settlement Fund Trustees. He further stated that he heard the Petitioners had paid the purchase price. He confirmed that he knew the members of the Petitioner.
Upon re-examination, He stated that the beneficiaries of the land were Pharis Gota – SFT, Erastus Mwafue –Commandant GSU, Rebecca Kathoni – The husband was a special battalion officer – deputy, Bernard Njiru President Escort Commander, Martin Ruto-Kenya Aid de camp-Moi. He stated that Rosadine Vadus was deported during Kenyatta regime while Lovatelli deported during Moi’s regime. He stated that he personally knew Valdis personally and that he had met Lovatelli.
That marked the close of the Plaintiff’s case.
1st and 3rd Respondents Case
Elias Muchiri Kamaru testified as DW1. He testified that he was a Civil Servant working in the Director of Land and Settlement as the Deputy director Land administration and settlement. He testified that he knew E. N. Ogeke and he confirmed her signature in the affidavit sworn on 25th September, 2013 which he relied as his evidence in chief. He also produced the list of documents filed on 2nd September, 2013 as 1st DEx1 to 1st DEx5 and 2nd DExh.6. It was his testimony that the people listed in the paper were beneficiaries of allocations of SFT. He testified that they had issued them with title deeds. He added that they were about 80 beneficiaries.
Upon cross examination by Kibe, he confirmed that the 80 beneficiaries were the people allocated between 1978 – 1979. He stated that the same was a transfer from the previous owner to SFT. He further stated that the previous owners were K.E.R.M.A Ltd. He stated that he had records of a letter to the Ministry which showed that the Petitioners had expressed interest in the land. He confirmed that there was no transfer to K.E.R.M.A Ltd. He admitted that he was not aware of the current status of the land.
Upon cross examination by Ragut, he confirmed that he was not aware of Sunset Farm Ltd. He confirmed that he saw an allotment letter to Phares Gota with a charge issued on 15th August, 1979. He stated that the charged property was parcel number 1, Njoro Settlement Scheme. Scheme number 717. He further stated that the property was acquired from K.E.R.M.A Ltd and that it had been fully paid. He stated that he was issued with title and discharged.
Upon cross examination by Kagunda, he stated that the land was allocated to 19 beneficiaries.
Upon cross examination by Gichigi, he stated that SFT bought the land on 24th February, 1979. He confirmed that they did not have a sale agreement. He also confirmed that there was no counterclaim. He stated that the sale was based on correspondence. He admitted that he did not have the cheques or evidence of payment. He also admitted that there were no dates when allotments were made. DW1 stated that SFT became the registered owner on 8th October, 1979 and that the 1st beneficiary was Pharis Gotta. He stated that he was not aware that Pharis Gotta was the Director of SFT. DW1 stated that he had joined SFT in 1995 and admitted that he came across documents signed by Phares Gotta. He added that he was shown documents by Sunset Farms Ltd. He also stated that Phares Gotta was allocated plot number 1 on 15th August, 1979 and that SFT became the owner on 8th October, 1979. He stated that the last entry was a court order registered on 11th October, 2012. He confirmed that the titles were not surrendered and that the land was then subdivided. He stated that SFT was the owner of the land. He added that he did not know when the land was converted to RTA from RLA. He confirmed that he did not know the beneficiaries. He stated that there were no records on the transfer between K.E.R.M.A and SFT. He stated that the issue of parcel registry ought to have been addressed.
Upon cross examination by Chepkurui, he stated that SFT bought the land on 24th February, 1979. He stated that it was allocated part of it on 15th August, 1979. He further stated that the Petitioner had expressed interest and had been offered 400 acres but that the allocation was cancelled by the Directors. He also stated that they were given a letter to that effect. He added that the area list emanated from their office which reflected the current situation. He stated that they paid the purchase price.
Upon cross examination by Nuister, DW1 confirmed that he did not have evidence of payment of the purchase price of Kshs. 2,302,000. He stated that it was the one that transmitted to the land settlement farm. He further stated that the purchase refund in the letter dated 26th June, 1979 was Gatanga Cooperative. He went on to state that the government negotiated and Gatanga withdrew from the transaction. He stated that they were supposed to purchase from Gatanga. He also stated that Gatanga that should have sold to the Petitioner. He stated that the Petitioner did not correspond with KERMA. He added that they did not receive any correspondence with comments from Lands. He stated that he had not perused the survey file or valuation report.
Upon cross examination by Gichigi, DW1 stated that for both parcels LR No. 10365 and LR 10337 it was paid for Kshs.2,302,000. He confirmed that the Petitioners were offered 400 acres to the area settlement controller SFT on 19th July, 1979. He stated that the director of Settlement Mr. P. M. Gotta revoked the offer. He added that Gatanga Co. Ltd bought the land from KERMA.
On re-examination, he stated that the allocation to the Petitioner was cancelled because of identification of beneficiaries. He confirmed that he had not seen the letter from the Commissioner of Lands.
That marked the close of 1st and 2nd Respondent’s case.
2nd Respondents’ case
The 13th Respondent Gladys Mwangi produced her witness statement dated 27th May, 2023 and two affidavits for all Respondents. She testified that the Respondents acquired the land legally. He further stated that she was the owner of Land parcel Nakuru/Njoro 148 which she purchased from one Nelson Maru Tanui in 2010. She further testified that a title deed was issued on 2th December, 2010. It was her evidence that she has been in possession a position that applied to all the other members. She testified that she came to know that SFT had issues with the Petitioners. It was her testimony that they bought the land in 2010 which under RLA and that entry No. 3 for 10365 showed that there was a transfer on 10th May, 1965. That Entry No. 7 showed transfer to SFT, Entry No. 5 to George Kamuyu Mwai She testified that for10337 entry No. 6 showed a transfer to Kerma Ltd for Kshs.270,000 on 12th May, 1965. She added that entry No. 9 showed transfer to SFT on 8th October, 1979. She testified that George Kagaga had a consent that claimed purchase intent while there was no consent by the Petitioners. It was her testimony that the record showed that the land was acquired legally. She testified that the property was charged and that they have developed the land.
Upon cross examination by Aziz, he stated that they had purchase the land form Nelson Mara Tanui who had purchases from previous persons.
Upon cross examination by Gichigi, DW1 confirmed that he had seen the titles and that the last entry before court order was on 8th October, 1979 while the court order was entered on 11th October, 2012. He stated tha there were irregular entries. He stated that he did not know about the 1st allottee and added that he had no entry of the land.
Upon re-examination, he stated that the titles were issued under RLA while the transactions by the Registrar were under RTA. He stated that he was not aware of the transaction. He stated that he relied on the affidavit of Manuel Nota on 28th June, 2018 which was adopted as evidence of Sunset Farm Ltd.
That marked the close of 2nd Defendant case.
19th Respondent’s case
Michael Nderitu Ngota swore a replying affidavit dated 28th June, 2018 which was adopted as his evidence-in-chief. The documents in the affidavit were also produced as exhibit. It was his testimony that he was the Director of Sunset Farm Ltd together with Jemima Njeri Gotta and Arcline Gota. He testified that Gota Phares was his late father and that he had died in 2001 December. He testified that his late father was offered parcel no. Njoro/Scheme/717 vide a letter of offer from SFT. He testified that he was to pay Kshs.391,420 and that he had made a deposit of Kshs. 38,490. He further testified that the property was charged to SFT for a sum of Kshs. 394,420. He went on to testify that his father paid the amount and was issued with a title for Nakuru/Njoro/1 for Sunset Farm Ltd. He testified that they did a petition for a grant of letter of administration dated 10th March, 2002. He added that the property was transferred to Sunset Farm Ltd.
Cross-examination by Gichigi:
Upon cross examination by Gichigi, he confirmed that his father Phares Gota worked with the Agriculture Ministry and SFT and later retired as the Director Lands and Settlement. He further confirmed that in 1979 he worked with Lands and Settlement. He stated that the letter of offer was issued on 15th August, 1979. He stated that his father was allocated plot number 1 by the Director of Lands and Settlement. He admitted that he did not know the SFT process and stated that since allocation, the land belonged to them. He added that the Director Settlement was allocated 287 acres. He also stated that the land was never left to family. He stated that he knew the director of the Petitioner. He also stated that SFT was registered on 8th October, 1979. He stated that the land was offered on 15th August, 1979 while his father paid on 27th July, 1979.
On re-examination, he stated that Settlement Fund Trustee had no claim against them and that Pharise Gota was allocated 116ha after which it was transferred to Sunset by transaction.
That marked the close of 19th Respondent’s case.
1st and 2nd DW1 recalled
Elias Muchiri Kamau produced further documents being DEx7, 8(a), 8(b), 9, 10.
On cross examination by Rabut, he stated that the 19th Respondent was issued with an allotment letter dated 15th August, 1979. He confirmed that at the time of offer, SFT had acquired the land.
Upon cross examination by Nuister, he stated that the land was acquired by group squatters who occupied government land. He stated that the allocation went to landless. He further stated that the selection committee was comprised of nominees of area MP.
Upon cross examination by Gichigi, he confirmed that the government took over KERMA Ltd on 12th February, 1979 while the transfer was signed on 31st July, 1979. He added that the payment vouchers were dated 6th August, 1979. He admitted that he did not have any document that showed Gatanga farmers bought the land. He explained that Gatanga farmers had shares from KERMA and that they intended to sell 400 acres to the Petitioner. He admitted that there was no document in that showed the transfer. He added that the government was compulsorily acquiring the property. He further stated that the government financed Gatanga to withdraw from the agreement after which the government took the land before it bought it. He stated that the signatures were for the Director of Security. He further stated that the government never engaged the Petitioner. He stated that they allocated the Petitioner 400 acres and that the money was paid by cheque. He admitted that he did not have a copy of the cheque. He added that the government was in a hurry to acquire the land hence the settlement was called Haraka since this was done in a hurry so as to settle the landless. He also stated that the identification of the beneficiaries was done by the Provincial Administration. He stated that there was no power of allocation, advertisement and how the needy were identified. He stated that the allocations were normal.
On re-examination he stated that the letter dated 8th June, 1979 was addressed to Gatanga and added that Gatanga never raised any complaint. He stated that the government acquired the land and that the owners were KERMA Ltd. He added that Daly & Figis were advocates for KERMA. He further stated that the government acquired on 12th February,1979. He added that it could allocate it to landless and that there was no need to engage the Petitioner since they had no intention with the title.
George Gachere Gitonga testified as DW2. He testified that he was a Land Director with the Chief Land Registrar having worked for 3 years. He testified that he had the land register for government matter IR 17260 LR 10365 being government No. 17309 and LR No. 10337. He testified that they were together with transfers to KERMA Ltd for government No. 17309 from Kenya essential oil Ltd from KERMA Ltd to SFT. It was his testimony that 10337 was transferred from KERMA to Settlement Fund Trustees. He testified that he had a letter of court transfer government No. 10309 to Kenya Essential Oil Ltd to KERMA Ltd. He added that the land document was a court order issued in Petition No. 391 of 2012. He testified that the Petitioners were not registered as owners of the land as there was no entry for the Petitioners. He went on to testify that Settlement Fund Trustees became registered vide transfer and that the entries spoke for themselves. He testified that the land was registered on 8th October, 1979.
Upon cross examination by Mungai, DW2 stated that SFT was the purchaser. He explained that SFT was an agency conceptualized under the Ministry of Agriculture to settle people after independence. He stated that it would operate on available land. He added that the suit land was one of available lands. He stated that there were caveats removed before transfer. He also stated that there was no caveat by the Petitioner.
Upon cross examination by Nuister, DW2 stated that the registration was under RTA. He stated that registration should have been closed when SFT bought the land. He explained that the same involved buying the registration and instructing of surrender. He further explained that the titles were then to be cleared and converted to RLA Cap 300 after which the title was then closed. He stated that the settlement fund settled people on the land before it was their land. He added that there was no surrender hence the reason why the register was still open. He denied being aware of any confirmation from the Land Registrar or Director Survey. He stated that for RLA title in Nakuru, the land register Nakuru would produce the title. He added that the was aware that there were RLA titles issues in Nakuru. He stated that they were in the names of SFT and individuals. He further stated that the land was owned by SFT and that there was no entry since SFT bought it. He stated that while titles had been converted, the registration co-exist. He admitted that there was a problem that needed to be solved. He added that SFT needed to have the registration in Nairobi. He admitted that it was a mistake by SFT.
Upon cross examination by Gichigi, he stated that another court order could be registered and that if the court order was vacated, no other restriction could be registered. He stated that it was possible to regulate if it was not aware of the situation. He also stated that the Nakuru registries were absolute and that notices stops afresh set of titles. He explained that the problem was common conversion which was a process. He added that the fact that letters were issued under KLA, it meant that there was conversion. He stated that the land registration was to receive the intended title then registration was closed. He stated that the transfer to SFT was dated 31st July, 1979. He added that the Land Registrar could place a restriction on the registration.
On re-examination, he stated that RTA had SFT as the registered owner. He added that there was conversion from RTA to RLA and it could be recorded by SFT.
That marked the close of the 1st, 2nd and 3rd Respondent’s case.
20th Respondent’s case-NLC
Frank Kosion Kibelekeya testified that he was the County coordinator Nakuru (NLC). He stated that the suit properties were LR Number 10365, IR No.172260 and LR Number10337, IR NO 17309. He produced his replying affidavit filed on 25th October, 2023 was adopted as his evidence in chief. He testified that he had interacted with elders who came and they did a preliminary report. He testified that the process of preparing the report was that it goes from the committee to plenary. He testified that they were at the preliminary stage and intended to conclude the report. He went on to testify that their findings were that parcel LR No.10337. measured approximately 1,252.5 acres or 678 Ha while C.F number 25150 was 210 acres was for L.R No.10365. He testified that the subject parcels were registered under RTA. He added that L.R No. 10365 had IR No.17260. It was his testimony that there were 7 subdivisions and that perusal of record did not show any records of survey. He went on to testify that the discharge record was found at the County Settlement Office. That the subject parcels under RTA Registration, LR 10337 IIR J7309, LR 10365, IR NO17260 under the Chief Land Registrar was open. He testified that the Petitioner was able to register a caveat. It was his testimony that the team conducted verification of owners of the land guided by sheet No.1 and a report was made by a team.
He testified that the way forward was to make a 2nd ground visit and make a formal recommendation. He confirmed that he was a member of the team. He testified that he relied on the documents produced FK1 in the affidavit as 20th Defendant’s Exh1. He produced letters at folio 34 as 20th DEX2 and 20th DEX 3dated 28th July, 2008. He also produced 20th DEX6-12.
Upon cross examination by Gichigi, He confirmed that the Petitioner approached NLC where they sought for relief on Trust held Land Injustice. He testified that the Commissioner found that it was a trust held land injustice. He stated that he went through the relevant government documents. He confirmed that the Petitioner suffered injustice and it ought to be compensated. He added that since it was over 45 years, the Respondents could not be punished. He stated that he did not complete the report due to lack of resources. He testified that he dealt with 2 parcels of land. LR 10365 and LR No.10338 which they had a preliminary report. He stated that they had found that there was injustice on the Petitioners.
Upon cross examination by Chepkurui, he confirmed that the Petitioner gave him a number of documents including a consent to transfer. He further confirmed that he had not seen transfer or title in their name. He stated that the memorandum of transfer did not have the Petitioner. He was referred to 20th DEX 9 where he I confirmed that he could not tell the author of the office. He was further shown 20TH DEX 2 where he stated that he was aware that Karume withdrew the agreement with the Petitioner. He was thereafter referred to 1st and 2nd DEX 1 where he confirmed the payment voucher dated 6th August, 1979 for Kshs. 2,194,490/= addressed to Daly and Figis. He was further shown 20th DEX 7 where he stated that he was not aware when the criminal case was concluded. He stated that the land was invaded and that that he came to know the Petitioners in 2017. He stated that the number of years of injustice was a loss and that the same amounted to an historical injustice. He stated that people paid money to the seller and they did not take possession but instead arrested. He stated that he blamed destiny and confirmed that investigations were not complete.
Upon cross examination by Mungai, he confirmed that he had read articles 67 2 (e) and had investigated upon the request of the Petitioner. He stated that the commission had 5 years to investigate historical injustice. He stated that he recalled a complaint from Petitioners through a memorandum in the affidavit marked as FKI. He stated that they had received the complaint in form of a petition. He added that there was a company procedure which took a little bit of time. He stated that he later learnt that the matter was before court. He further stated that the exercise was not concluded due to the technicality of the exercise. He added that there was a need to bring other agencies of the government. He stated that they were to use the preliminary report to reply to the petition. He confirmed that they had not conducted on the exercise under section 67 2 (e). but hope to conclude. He further stated that they were part of the committee that went to ground and found that many people had settled. He went on to state that he took a title from owner which had been issued under Registration of Lands Act. He confirmed that there was no caveat nor caution in the year 2000.
He stated that a caution was placed in 2012 and added that they had not decided. He further stated that the people who live on the land are innocent people and that there was no issue against them but between the Petitioners and the current owners. He was referred to 20th DEX 10 where he confirmed that Kerma transferred to the Defendants.
He stated that on 28th July, 1979 (20th DEX 3), the land was illegally acquired. He further stated that the land was allotted to influential persons who served government and not the Petitioners. He added that they were allocated 657 acres while the squatters were allocated from 1 acre making the total acres 1,252. He also stated that there were no complaints by squatters. He stated that all the land had been subdivided save for two or three. He also stated that Ikenye and Mbijiwe retained the farm house.
Upon cross examination by Ragut, he confirmed that their reports were usually dated. He admitted that FK3 was not dated. He confirmed that he had not seen the sale agreement of 1977. He stated that the Petitioner complained that their office was invaded and documents taken away. He stated that they had interviewed the settlers, provincial administrator and the person manning the farm gate. He admitted that the report did not indicate historical injustice but added that it was from the ground statement report. He confirmed that paragraph 9 referred to a complaint of historical while the preliminary report did not indicate historical injustice. He also stated that the Petitioners were landlords but decided to use their money and buy land. He admitted that he did not have evidence that the state broke into the Petitioner’s office but only relied on the petition. He confirmed that he did not know the members of the Petitioner and added that he had never interviewed the permanent people or squatters. He stated that a government settlement scene could not allocate more than 5 acres.
He was referred to Gotas affidavit where he confirmed he had not seen the charge document. He also confirmed that there was no acreage. He stated that Gota was to pay Kshs. 591,420 for the land.
Upon cross examination by Aziz, he stated that there was a difference between purchase and settlement. He confirmed that he had not received the sale documents as they had been taken away by the attackers. He stated that he was not aware whether reconciliation was completed. He stated that he could identify the land that had been taken and added that there was also a farm house. He further stated that the entire land was sold and subdivided. He also stated that Bamboo was an innocent buyer.
Upon re-examination, he stated that he saw a consent to transfer dated 1th September, 1979 between Kerma and Matuguta whose purpose was for sale on transfer. He stated that the consideration was Kshs. 1,860,000. He stated that he interacted with the documents of the Petitioner through a memorandum and realized that it met the threshold of historical injustice. He added that investigations were never completed because of the funds. He also stated that the Respondents not well settled since there was a dispute within the parties. He stated that 20th DEX 3 was signed by P K Gotta and added that there was a breach of duty and abuse of office by Mr Gotta. He stated that once could not issue a contested title. He stated that the farm was taken fraudulently and by force from Kerma Ltd. He added that the government through the ministry of lands took over the land from the company owners forcefully. He stated that the Petitioners occupied the farm but were attacked by the government. He stated that he blamed the government for the Petitioner’s suffering. He stated that he went with technical officers, surveyors, physical planner and land officer to the ground. He stated that the report was for the petition. He added that they stopped the investigations since the matter was in court.
That marked the close of 20th Respondents case.
Submissions
None of the parties filed their submissions in time.
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) Whether there was violation of the Petitioner’s constitutional rights by the government and Respondents.
b) Who are the lawful owners of the suit parcels?
c) Who is to bear the costs of the suit.
It is the Petitioner’s case that they were forcefully evicted from the parcel lands and arrested thus resulted in infringement of their rights to property, displacements, historical injustice and violation of their constitutional rights. It was also their case that the suit lands were thereafter registered in the names of the 1st and 19th Respondents. It is this court’s view that one cannot tell with precision and finality that the Petitioners were in occupation of the suit lands. I am of the opinion that none of the Petitioner’s witnesses confirmed that they took possession and cultivated the suit lands, instead it was their evidence that at the time they were in the process of settling, that’s when they were violently evicted.
Section 15(2)(3) of the National Land Commission provides s description of historical injustices and the threshold for such a claim to be admitted, registered and processed (by NLC) as follows:
“15.(2)For the purposes of this section, a historical land injustice means a grievance which—
a. was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice, treaty or agreement;
b. resulted in displacement from their habitual place of residence;
c. occurred between 15th June 1895 when Kenya became a protectorate under the British East African Protectorate and 27th August, 2010 when the Constitution of Kenya was promulgated;
d. has not been sufficiently resolved and subsists up to the period specified under paragraph (c)and
e. meets the criteria set out under subsection 3 of this section.
3.A historical land claim may only be admitted, registered and processed by the Commission if it meets the following criteria—
a.it is verifiable that the act complained of resulted in displacement of the claimant or other form of historical land injustice;
b.the claim has not or is not capable of being addressed through the ordinary court system on the basis that—
i.the claim contradicts a law that was in force at the time when the injustice began; or
ii.the claim is debarred under section 7 of the Limitation of Actions Act (Cap. 22) or any other law;
c.the claimant was either a proprietor or occupant of the land upon which the claim is based;
d.no action or omission on the part of the claimant amounts to surrender or renouncement of the right to the land in question; and
e.it is brought within five years from the date of commencement of this Act.”
The 20th Respondent being the County Coordinator of NLC testified that that they had received a complaint of historical injustice from the Petitioner. Upon cross examination, he confirmed that they had not finalized their investigation due to lack of resources. He also admitted that their report did not indicate historical injustice. It is this court’s view that from the evidence adduced it is clear that the 20th Respondent’s never finalized their investigations. It is therefore the courts finding that the 20th Respondent bestowed with the mandate to recommend historical injustice did not adduce conclusive evidence to warrant this court find that there was historical injustice.
Further the Petitioner in its pleadings raised violation of various its constitutional rights including Articles 20, 21, 43 and 50 of the Constitution. In the Court of Appeal case of Mumo Matemu versus Trusted Society of Human Rights Alliance (2013) eKLR, although the court appreciated the importance of substantive justice under Article 159 of the Constitution, it held that:
“The principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the constitution and the overriding objective. Principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and Section 3A and 3B of the Appellate Jurisdiction Act Cap 9. Procedure is also a hand maiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The principle in Anarita Karimi Njeru (Supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extract of this principle”. [Emphasis mine]
It was held in the above case that it was not sufficient for a Petitioner to simply refer to various Articles of the constitution without linking the said Articles to the issues for determination. It must set out the Articles alleged to have been violated or threatened with violation and state the relevance of these Articles to the issues for determination. In the present case, the Petitioner fell short of making linkages between the acts of violations complained of, with the Articles of the constitution invoked as well as the issues presented for the determination. It is therefore this court’s view that the alleged constitutional right violations by the Petitioner lacked the required specificity to the rights alleged to have been violated.
Going to the second issue, it is not in dispute that the suit parcels were initially owned by the interested party. This is evidenced by the entry number 3 on the grant I.R 17260 (DEX5).
Sections 107, 108 and 109 of the Evidence Act, provided as follows;
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.”
The Petitioner contends that through its members they bought the suit land from the interested party on 11th August, 1977 through their advocates Daly and Figgis at a consideration of Kshs. 1,860,000/=. It was the Petitioner’s case that they lost the sale agreements and receipts of payment during the arrest and that they were unable to retrieve the same from the Nakuru police. The 1st and 2nd Respondents gave evidence to the fact that Kerman Limited offered to sell its shares to Gatanga Farmer’s Cooperative Society who later withdrew and the government acquired the same through SFT. They produced evidence of payment of the purchase price vide payment vouchers (DEX8&9) It is a fact that the 1st and 2nd Respondents produced the letter dated 22nd June, 1979 (DEX1) confirming withdrawal of Gatanga Farmers from the transaction. There is also evidence vide a letter to Daly and Figis dated 24th February, 1979(DEX3) that the government acquired the suit land from SFT for purposes of settling landless people. This court has also perused the court records and there is evidence to the fact that on 28th July, 1979 the Director of Settlement wrote to the Petitioners correcting the error that they were allocated the 400 acres by the late President Daniel Moi. It is a fact that the said letter informed the Petitioners that there was no land for distribution. There is also evidence of transfer from Kerma Limited to SFT dated 31st July, 1979.
The 19th Respondent led evidence to the fact that Phares Gote the Director Settlement was allocated 287 acres after which he sold the same to third parties. This court is alive to the fact that that the Petitioner is challenging the legality of the Respondents’ titles to the suit lands. It cannot be gainsaid, that when the title of a party is under challenge, the concerned party ought to go beyond and show that he validly acquired title. This position is well captured in the Court of Appeal case of Munyu Maina vs. Hiram Gathiha Maina, Civil Appeal No.239 of 2009 where it held that: -
“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”
Further, Section 24(a) of the Land Registration Act provides that:
“Subject to this Act, 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.”
Section 26(1) of the Land Registration Act further 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
b) Where the certificate of title has been acquired illegally, unprocedurally 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 the court 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]
It is fact that there was no allegation in the Petitioner’s petition that the Respondents obtained their titles through fraud or misrepresentation, or illegally, unprocedurally or through corrupt scheme. It is this court’s view that the Respondents proprietary interest was registered and could only be challenged under Section 26(2) of the Land Registration Act. Subsequently, as title holders they enjoy statutory protection by dint of the said section 26(1) (b) of the Land Registration Act. In the circumstance, this court finds that the Respondents are the lawful owners of the suit properties herein having purchased the same from the 19th Respondent.
It is this court’s view that the Petitioner failed to prove its case to the required standard of proof on a balance of probabilities and therefore this court shall not grant the prayers as sought in the petition. The upshot of the foregoing is that the Further Amended Petition dated 17th September, 2019 is hereby dismissed. Each party to bear its own costs. It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 9TH DAY OF 0CTOBER 2024.
The Petitioner commenced this suit vide a petition against the Respondents that was further Amended on 17th September, 2019 seeking the following orders:
a) A declaration that the government and the Respondents have violated and/or likely to violate the Constitutional rights of the Petitioner and its members.
b) A declaration that the Petitioner was the lawful owner of the two parcels of land L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 as at the time the government transferred the same to the 1st Respondent on 8th October, 1979.
c) A declaration that the transfers to the 1st Respondent dated 8th October, 1979 were null and void ab initio.
d) An order cancelling the transfer Entry No. 7 on GRANT NO 1.R 17260 of L.R NO. 10365 and Entry No. 9 on GRANT NO I.R 17309 of L.R NO. 10337 and;
e) An order that the 1st Respondent or the interested party do transfer the two parcels of land L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 (FORMERLY L.R NO. 10337) to the Petitioner and in default the Deputy Registrar of this Honourable court be authorized to execute all relevant documents to give effect to the orders of this court.
f) An order prohibiting the 1st Respondent or any other officer of organ of government, their servants or agents from disposing, transferring, subdividing, leasing or in any manner whatsoever dealing with the two parcels of Land L.R Nos L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 (FORMERLY L.R NO. 10337)
g) In the alternative to the foregoing prayers, an order that the government through the Respondents do compensate the Petitioner by paying the equivalent of the current value in Kenya Shillings of the two parcels of land L.R NOs. 10365 and 10337 L.R NOs. NAKURU/NJORO/1, NAKURU/NJORO/2, NAKURU/NJORO/2,NAKURU/NJORO/3,NAKURU/NJORO/4, NAKURU/NJORO/5, NAKURU/NJORO/6, NAKURU/NJORO/7,NAKURU/NJORO/8,NAKURU/NJORO/9,NAKURU/NJORO/10,NAKURU/NJORO/11,NAKURU/NJORO/12, NAKURU/NJORO/13, NAKURU/NJORO/14,NAKURU/NJORO/15,NAKURU/NJORO/16,NAKURU/NJORO/17, NAKURU/NJORO/18, NAKURU/NJORO/19,NAKURU/NJORO/20,NAKURU/NJORO/21,NAKURU/NJORO/22,NAKURU/NJORO/23,NAKURU/NJORO/24,NAKURU/NJORO/25,NAKURU/NJORO/26,NAKURU/NJORO/27,NAKURU/NJORO/28,NAKURU/NJORO/29,NAKURU/NJORO/30, NAKURU/NJORO/31, NAKURU/NJORO/32, NAKURU/NJORO/33,NAKURU/NJORO/34,NAKURU/NJORO/35, NAKURU/NJORO/36, NAKURU/NJORO/37, NAKURU/NJORO/38,NAKURU/NJORO/39,NAKURU/NJORO/40, NAKURU/NJORO/41, NAKURU/NJORO/42, NAKURU/NJORO/43,NAKURU/NJORO/44,NAKURU/NJORO/45, NAKURU/NJORO/46, NAKURU/NJORO/47, NAKURU/NJORO/48,NAKURU/NJORO/49,NAKURU/NJORO/50, NAKURU/NJORO/51, NAKURU/NJORO/52, NAKURU/NJORO/53,NAKURU/NJORO/54,NAKURU/NJORO/55, NAKURU/NJORO/56, NAKURU/NJORO/57, NAKURU/NJORO/58,NAKURU/NJORO/59,NAKURU/NJORO/60, NAKURU/NJORO/61, NAKURU/NJORO/62, NAKURU/NJORO/63,NAKURU/NJORO/64,NAKURU/NJORO/65,NAKURU/NJORO/66,NAKURU/NJORO/67,NAKURU/NJORO/68,NAKURU/NJORO/69,NAKURU/NJORO/70,NAKURU/NJORO/71 (FORMERLY L.R NO. 10337)
h) An order that the Respondents do compensate the 107 members of the Petitioner for violation of their rights to freedom and access to justice.
i) Costs of this Petition.
j) Any other or further orders and relief as this Honourable Court may deem fit and just to grant.
Plaintiffs’ Case
Nathaniel Kiongo Githua an advocate of the High court since 1972 testified as PW1 where his statement filed on 19th October, 2023 was adopted as his evidence in chief. He testified that in 1975 he was approached by a group of people where they were negotiating to buy a farm. He further testified that he incorporated the Plaintiff’s company. He added that they later found Kerma Ltd farm where they negotiated on behalf of the Plaintiff. He also testified that the farm’s advocates were Dally and Figis with their advocate Mr. PJ Henett.
He went on to testify that he received the letters dated 18th October, 1978 at page 148 PEX 1, letter at page155 PEX 2 and the letter dated 28th July, 2008 at page 156 PEX 3. It was his testimony that the Plaintiff paid the purchase price and when they took possession, 107 persons were arrested and charged with trespass. It was his testimony that they were convicted for trespass but later acquitted on appeal. He testified that the Kerma limited, the vendor did not transfer the property to the Plaintiff. He added that there was a lot of interference from the government as the minister never allowed the transfer. He testified that the purchase price was never refunded and that the transfer was not effected.
On cross examination by Langat for the 4th to 129th Respondents, PW1 confirmed that he took part in registration Matuguta in 1975. He however admitted that he did not have the certificate. He stated that the objective of the company was to provide land. He also admitted that he could not recall the monies paid though the money was paid in 2 instalments via KCB. He stated that the completion time frame was given and that he had not visited the property. He also stated that after their arrest, he stopped acting for them.
Upon cross examination by Muthuri for the 1st and 2nd Respondent, he confirmed that they did not sign any transfer documents. He further confirmed that they drew a sale agreement but admitted that he did not have it. He also stated that 45 years ago, he conducted a search before the sale and that Kerma Ltd was the owner of the land. After the sale agreement there was another transaction.
Upon cross examination by Ragut for the 19th Respondent, he stated that the sale agreement was prepared by Daly and Figis. He confirmed that he did not have the sale agreement or evidence of payment. He also confirmed that he was not aware of any shares in the company. He further confirmed that he did not have the Petitioner’s records. He added that he did not have any evidence of an appeal.
Upon cross examination by Niuster for the 3rd Respondent, PW1 confirmed that in 1978, he was practicing as Githua and company advocates after which he moved with the file. He stated that after 12 years all the files that didn’t have anything pending were destroyed. He confirmed that he burned the file. He also confirmed that there was no evidence of deposit. He stated that he was instructed to act for the parties. He further stated that his letter dated 28th July, 2008 had no relationship with the present case. He stated that from his memory, the 1.8 million was paid to the law firm of Daly and Figis.
Upon cross examination by Mr. Anan for Bamboo Limited PW1 stated that he partially did the transaction and that he blamed Jackson Angaine, the minister for Lands and settlement. He also stated that he had complied, gave his evidence and that he had registered the 107 individuals. He further stated that the Directors of Kerma were deported.
Upon cross examination by Kagunda for the 23rd Respondent, he stated that the Director of settlement cancelled the allocation.
Upon re-examination, PW1 stated that he destroyed the files that were not active and added that was no one to revive the case.
James Wanyama Ruitha testified as PW2 where his statement dated 30th August, 2023 was adopted as his evidence in chief. He testified that he was a real estate consultant, Land Economist and a registered valuer. The witness was stood down in order to avail the valuation report.
Francis Maina Mwangi testified as PW3 where his affidavit sworn on 4th September, 2012 and witness statement dated 30th August, 2023 was adopted as his evidence in chief. He testified that he was the director of the petitioner, Matuguta. He also produced documents at page 9 of the bundle as PEX 4 to PEX 21. He also produced that documents at page 160 as PEX 22-PEX 26. He also produced the valuation report as PMFI 27 and PMFI 28. It was his testimony that they bought land from Kerma Ltd vide an agreement dated 11th August, 1977 at a consideration of Kshs.1,860,000/=. He testified that they had a transfer signed by Kerma and an LCB consent LR 10337 and 10365. He further testified that they were not given the title but that the owner Rosedine Astald Vadus gave them possession
He went on to testify that before they could settle on the land, GSU came and evicted them and they were charged with stealing and trespass. He testified that they were 107 people who were members of the petitioner. He testified that they were fined a total of Kshs. 1000. He added that this was in 1979 and that the complainant was Jackson Angaine. He testified that they appealed the case of 1978 and succeeded. He testified that they were to be refunded their money. He further testified that they never saw the complainant and added that the land was taken up by settlement fund trustees (SFT). He testified that they went back to the land but they were stopped by the government. He further testified that they found that the land belonged to Kerma. He added that they did not come to court as they feared the government.
He testified that they later approached the court in 2012 due to the new conditions. He testified that the then president ordered that they be given 400 acres but the same was grabbled. He also testified that he did not have the sale agreement and receipts since the police confiscated their documents. He further testified that they purchased the land from the mzungus and that the land later given to influential people. He testified that Phares Goten the Director of Settlement was given landless No.1. being 287 acres, Rastus K Mbijiwe given 40.5 Ha, Rebecca J Kimotho 100 acres, Bernard Kairie Njiiru. given 20.5 acres and parcel number 5 was given to Peter Ikenye 20.5 acres. It was his evidence that the said persons were very senior persons in government. He testified that the petitioner was not given land and that Kerma was not paid anything by the government. He went on to testify that the Settlement Fund Trustee was registered on 8th October, 1979 and the charge on 15th August, 1979. PW3 testified that Michael Gatu was allotted on 15th August, 1979. He testified that search was done on the existing titles. He added that there was no entry of subdivision or surrender or co-owners to the land. It was his testimony that registration was opened on 29th May, 1984. He testified that the land was titleless with only 2 titles for LR 965 and 10365. He added that the file was in Nairobi and that it had 456 acres. He urged the court to give the petitioners their land.
PW2 was recalled where he produced the valuer’s report as PEX 27 together with the receipt as PEX 28. He testified that the last entry was a court order dated 26th September, 2012 in the HCCC Pet No. 391 of 2012 which stopped registration of any dealings until hearing and determination of the suit. He testified that the court order was registered on 11th October, 2023 and that the entries applied to both titles. He testified that the value of the two properties were Kshs. 6,870,000,000/=. He went on to testify that the two properties were developed with various residential houses, institutions, churches, schools. He testified that he charged Kshs19,963,600 as his costs.
Upon cross examination by Muthuri, PW2 stated that the report did not cover the developments.
Upon cross examination by Ragut, he stated that he had received instructions from the petitioners on 14th September, 2023. He stated that he had been furnished with copies of the titles and applied for a search but that they did have the search results. He confirmed that they relied on the search done on 8th August, 2013. He also confirmed that they used the original survey maps which confirmed that the two parcels had been subdivided.
Upon cross examination by Nuister for the 20th Respondent, PW2 stated that the acreage in titles were discernible in the titles, deed plan and survey map. He stated that the deed plan was with the director of surveyor. He further stated that the area for L.R 10365 was 287.5 acres.
Upon cross examination by Annan, he stated that he was given the instructions verbally 2 days before 14th September, 2023 and that the invoice was yet to be settled. He further stated that their report was dated 14th September, 2023. He added that they did not value the developments. He stated that there were subdivisions and that the original titles were extinguished.
Upon cross examination by Mungai, he stated that the petitioners were his clients and that he was given the titles for valuation. He further stated that he did not know the existing tenure of the land. He added that he had not seen the title of the people who had developed. He further stated that his investigation was that the claim was against SFT and not individual title owners. He added that he had not taken interest in the nature of the Respondent’s title. He stated that he had not carried out individual searches for the Respondents. He further stated that valuation was only for the land titles which he stated were registered under R.T.A He stated that it was a leasehold for 945 years form 1st January,1960 and that he was not aware of the government title holders land tenure. He admitted that they did not conduct a search and that there was no land in the name of Kerma. He also stated that he was not sure if the two titles subsisted. He stated that he was not aware what S.F.T did to purchase the property. He added that R.L.A titles were hardly issued in Nakuru. He stated that if the two title were cancelled, it would not have been possible to do valuation.
Upon re-examination, he stated that he visited the land and also relied on the documents. He stated that he was to establish the land using the map, survey plan and deed plan. He stated that he would have carried out a different valuation if he was to include the R.L A titles. He stated that the two parcels had long leases. The first one being 10337 which was for a term of 946 years from 1st April, 1960 and the second parcel was for 943 years from 1st January, 1960. He stated that there was no evidence of subdivision or surrender. He added that there was no conversion.
PW3 was recalled and upon cross examination by Muthuri, he confirmed that they did an agreement on 11th August, 1977. He also confirmed that he was not sure of the number of people who had signed agreement. He admitted that he was not present when the agreement was made. He also admitted that he was not a witness. He stated that they paid 1.8 million to Daly and Figs Advocates. He further stated that every member gave 7,500/=. He stated that he misplaced the receipts. He also stated that they did not attend any land council board. He stated that they tried to follow up in vain. He also stated that he was not certain whether there was a transfer. He stated that they had bought land measuring 1,252 acres, LR 10337 was 955 acres and LR 10365 was 465acres from the mzungu.
Upon cross examination by Kibe, PW3 stated that they filed the case in 2012. He stated that SFT restrained them from occupying the land. He further stated that they had no case against the other Respondents on the land. He added that they were challenging the titles under R.L.A. He stated that their problems begun in 1977 up to 1979. He stated that he was not aware of the old constitution. He stated that the Respondent took their land which was against the constitution. He added that he did not know whether the Land Registration Act 2012 existed. He stated that they used to pay the advocates Daly and Figs. He also stated that the receipts given got lost in court while other documents were confiscated. He admitted that they had no records. He also admitted that he did not have a copy of the agreement but only had the transfer. He stated that he saw the word transfer on the document but could not confirm the transfer instrument. He stated that he did not know how the transfer was done. He urged the court to order that the entries be cancelled. He stated that they paid Kerma but that there was no transfer. He further stated that the Petitioner could not get the transfer since the government intervened and that they were violently beaten by GSU.
He stated that he had no issue with the Settlement Fund Trustees allottees since they have the title, however, he stated that they bought the land from Kerma. He stated that in 1979 the land was not occupied. He added that in 2012 he had found people who had occupied the land. PW3 stated that Settlement Fund Trustees (SFT) illegally registered the land in their name. He further stated that SFT grabbled the land form them. He stated that the Petitioners never placed any caution. He added that they placed a caution in 2012 through a court order. He stated that there was no evidence that the Petitioners were on the land. It was his prayer that the government pays them and that they be given the land.
Upon cross examination by Ragut for the 19th Respondent, PW3 stated that the sale agreement showed the two parcels of land 10337 and 10365. He confirmed that there was a caution by Kagunda on 19th July, 1974 stopping any further transaction. He stated that the caution was removed on 1st December, 1978. He stated that the agreement was on 11th August,1977 while the caution was on 19th July, 1974. He further stated that the caution was removed on 23rd January, 1978 and the transfer to SFT was on 8th October, 1979. He stated that there was no transfer to the Petitioners.
Upon cross examination by Nuister, he stated that they entered the land in 1975. He admitted that he was not aware when the petitioner’s company was registered. He confirmed that he gave Kshs7,500 for purchase of the land. He stated that they paid the chairman who paid Daly & Figis Advocates. He also confirmed that the firm did not have their records. He stated that they did a search of the firm and that were told that the company did not exist. He further stated that in 1979 Lovatelli was deported after their eviction. He stated that Lovatelli had been taken to state house where he signed the transfer. He confirmed that he had not seen the transfer as he had only been told by the chairman. He stated that they followed up with the then president and Attorney General Charles Njonjo.
Upon cross examination by Annan, PW3 stated that they were 600 people who bought the land. He confirmed that some of them had not paid. He further stated that the president allocated them 400 acres but they never got the same. He stated that Phares Goten occupied the land.
Upon re-examination, he stated that they went to Daly and Figis, they were informed that Daly had died. He stated that he did not know who did the transaction at the advocates office. He stated that there was no letter by the Settlement Fund trustees and that the government had given them the search. He stated that he did not know how the Respondent took possession of the land. He further stated that he lost the agreement, registration receipts and constitution. He added that Kerma never informed them that they were not selling the land. He stated that the land was bought for 2,302,000 (10365LR). He further stated that they were given 400 acres by the former president Moi and that Goten cancelled the allotment.
David R Wachira Wahome testified as PW4 where his statement dated 30th August, 2023 was adopted as evidence in chief. He testified that he worked with the Kenya Government police department at the Nakuru District level from 1971 as a field officer. He testified that he worked under an European Jack Allan Miller. He further testified that his duties included matters security and land purchasing by companies. He testified that such companies were for Africans rebuying land from Europeans. He testified that he had an interest with the owners of the group Kerma farm. He testified that the owner was Rosedine Astald Vadus and Max Lovatelli. He further testified that there was a case that involved the members of the Petitioner where Kerma Directors gave evidence that he had sold the farm to the Petitioners. He went on to testify that when they appeared in court he was served with a deportation order. He testified that he was called to the office by his provincial boss accompanied by Jack. That he was later given instructions to escort Jack Allan to the Lanet Airstrip where he found the immigration officer who took him away. He testified that he did not handle Lovatelli.
Upon cross examination by Muthuri, PW4 confirmed that the special branch dealt with intelligence in Kenya being the current NIS. He confirmed that he dealt with many land buying companies but not involved in their transactions. He stated that he knew Kerma from his boss. He confirmed that he was not present during the transaction. He stated that his boss had paid all monies. He confirmed that he was present when the Petitioner took over the land. He stated that he knew that some government officials wanted to take the private land. He stated that he shared the information with his bosses. He stated that he did the report but that he did not have it with him. He further stated that he did not know how Lovatelli left the country. He stated that Rosedine was deported in 1977. He confirmed that he had not seen the transfer documents. He stated that Settlement Fund Trustees had wanted to buy the land form Kerma.
Upon cross examination by Kibe, he stated that he was a special branch officer and that he had taken oath. He stated that he could not remember the dates. He further stated that he had collected intelligence. He admitted that he did not have a single document. He stated that the information he had did not include the transfer. He also stated that he knew that they were handing over the property but was not certain of the title. He added that Rosedine had been deported before commencement of the case. He stated that judgment was delivered on 8th February,1979 and that the then president was Jomo Kenyatta. He stated that Lovatelli was in Kenya up to when Kenyatta died. He stated that he did not know the people who wanted the land. He confirmed that he did not know the owner of the land. He also confirmed that the land was transferred to SFT in 1979. He added that he did not make the decision for deportation.
Upon cross examination by Ragut, PW4 stated that Lovatelli was deported in 1979 while Rosedine was deported in1977. He stated that he received the deportation information from his boss. He confirmed that he had not seen any sale agreement.
Upon cross examination by Nuister, he stated that he was a banker before joining the Kenya Police. He stated that he was at the Special branch all the time which later became N.S.I.S. He stated that he was to assist the court reach a just determination. He confirmed that he was not aware of the in-depth issues in the matter. He further confirmed that they would disobey unlawful commands. He stated that he knew Phares Gota as the Director of Settlement, Rebecca Kinuthia as the wife of George Kinuthia attached to special branch, Erastus Njiiru was president escort commandant and Martin Ruto was the aid in camp to Moi.
Upon cross examination by Annan, he confirmed that he had entered the force in 5th May, 1971 and left in 2002. He stated that as a field officer he was tasked to collect information including that of the Petitioner among others. He stated that there were no discussions that involved the sale of land to Settlement Fund Trustees. He further stated that he heard the Petitioners had paid the purchase price. He confirmed that he knew the members of the Petitioner.
Upon re-examination, He stated that the beneficiaries of the land were Pharis Gota – SFT, Erastus Mwafue –Commandant GSU, Rebecca Kathoni – The husband was a special battalion officer – deputy, Bernard Njiru President Escort Commander, Martin Ruto-Kenya Aid de camp-Moi. He stated that Rosadine Vadus was deported during Kenyatta regime while Lovatelli deported during Moi’s regime. He stated that he personally knew Valdis personally and that he had met Lovatelli.
That marked the close of the Plaintiff’s case.
1st and 3rd Respondents Case
Elias Muchiri Kamaru testified as DW1. He testified that he was a Civil Servant working in the Director of Land and Settlement as the Deputy director Land administration and settlement. He testified that he knew E. N. Ogeke and he confirmed her signature in the affidavit sworn on 25th September, 2013 which he relied as his evidence in chief. He also produced the list of documents filed on 2nd September, 2013 as 1st DEx1 to 1st DEx5 and 2nd DExh.6. It was his testimony that the people listed in the paper were beneficiaries of allocations of SFT. He testified that they had issued them with title deeds. He added that they were about 80 beneficiaries.
Upon cross examination by Kibe, he confirmed that the 80 beneficiaries were the people allocated between 1978 – 1979. He stated that the same was a transfer from the previous owner to SFT. He further stated that the previous owners were K.E.R.M.A Ltd. He stated that he had records of a letter to the Ministry which showed that the Petitioners had expressed interest in the land. He confirmed that there was no transfer to K.E.R.M.A Ltd. He admitted that he was not aware of the current status of the land.
Upon cross examination by Ragut, he confirmed that he was not aware of Sunset Farm Ltd. He confirmed that he saw an allotment letter to Phares Gota with a charge issued on 15th August, 1979. He stated that the charged property was parcel number 1, Njoro Settlement Scheme. Scheme number 717. He further stated that the property was acquired from K.E.R.M.A Ltd and that it had been fully paid. He stated that he was issued with title and discharged.
Upon cross examination by Kagunda, he stated that the land was allocated to 19 beneficiaries.
Upon cross examination by Gichigi, he stated that SFT bought the land on 24th February, 1979. He confirmed that they did not have a sale agreement. He also confirmed that there was no counterclaim. He stated that the sale was based on correspondence. He admitted that he did not have the cheques or evidence of payment. He also admitted that there were no dates when allotments were made. DW1 stated that SFT became the registered owner on 8th October, 1979 and that the 1st beneficiary was Pharis Gotta. He stated that he was not aware that Pharis Gotta was the Director of SFT. DW1 stated that he had joined SFT in 1995 and admitted that he came across documents signed by Phares Gotta. He added that he was shown documents by Sunset Farms Ltd. He also stated that Phares Gotta was allocated plot number 1 on 15th August, 1979 and that SFT became the owner on 8th October, 1979. He stated that the last entry was a court order registered on 11th October, 2012. He confirmed that the titles were not surrendered and that the land was then subdivided. He stated that SFT was the owner of the land. He added that he did not know when the land was converted to RTA from RLA. He confirmed that he did not know the beneficiaries. He stated that there were no records on the transfer between K.E.R.M.A and SFT. He stated that the issue of parcel registry ought to have been addressed.
Upon cross examination by Chepkurui, he stated that SFT bought the land on 24th February, 1979. He stated that it was allocated part of it on 15th August, 1979. He further stated that the Petitioner had expressed interest and had been offered 400 acres but that the allocation was cancelled by the Directors. He also stated that they were given a letter to that effect. He added that the area list emanated from their office which reflected the current situation. He stated that they paid the purchase price.
Upon cross examination by Nuister, DW1 confirmed that he did not have evidence of payment of the purchase price of Kshs. 2,302,000. He stated that it was the one that transmitted to the land settlement farm. He further stated that the purchase refund in the letter dated 26th June, 1979 was Gatanga Cooperative. He went on to state that the government negotiated and Gatanga withdrew from the transaction. He stated that they were supposed to purchase from Gatanga. He also stated that Gatanga that should have sold to the Petitioner. He stated that the Petitioner did not correspond with KERMA. He added that they did not receive any correspondence with comments from Lands. He stated that he had not perused the survey file or valuation report.
Upon cross examination by Gichigi, DW1 stated that for both parcels LR No. 10365 and LR 10337 it was paid for Kshs.2,302,000. He confirmed that the Petitioners were offered 400 acres to the area settlement controller SFT on 19th July, 1979. He stated that the director of Settlement Mr. P. M. Gotta revoked the offer. He added that Gatanga Co. Ltd bought the land from KERMA.
On re-examination, he stated that the allocation to the Petitioner was cancelled because of identification of beneficiaries. He confirmed that he had not seen the letter from the Commissioner of Lands.
That marked the close of 1st and 2nd Respondent’s case.
2nd Respondents’ case
The 13th Respondent Gladys Mwangi produced her witness statement dated 27th May, 2023 and two affidavits for all Respondents. She testified that the Respondents acquired the land legally. He further stated that she was the owner of Land parcel Nakuru/Njoro 148 which she purchased from one Nelson Maru Tanui in 2010. She further testified that a title deed was issued on 2th December, 2010. It was her evidence that she has been in possession a position that applied to all the other members. She testified that she came to know that SFT had issues with the Petitioners. It was her testimony that they bought the land in 2010 which under RLA and that entry No. 3 for 10365 showed that there was a transfer on 10th May, 1965. That Entry No. 7 showed transfer to SFT, Entry No. 5 to George Kamuyu Mwai She testified that for10337 entry No. 6 showed a transfer to Kerma Ltd for Kshs.270,000 on 12th May, 1965. She added that entry No. 9 showed transfer to SFT on 8th October, 1979. She testified that George Kagaga had a consent that claimed purchase intent while there was no consent by the Petitioners. It was her testimony that the record showed that the land was acquired legally. She testified that the property was charged and that they have developed the land.
Upon cross examination by Aziz, he stated that they had purchase the land form Nelson Mara Tanui who had purchases from previous persons.
Upon cross examination by Gichigi, DW1 confirmed that he had seen the titles and that the last entry before court order was on 8th October, 1979 while the court order was entered on 11th October, 2012. He stated tha there were irregular entries. He stated that he did not know about the 1st allottee and added that he had no entry of the land.
Upon re-examination, he stated that the titles were issued under RLA while the transactions by the Registrar were under RTA. He stated that he was not aware of the transaction. He stated that he relied on the affidavit of Manuel Nota on 28th June, 2018 which was adopted as evidence of Sunset Farm Ltd.
That marked the close of 2nd Defendant case.
19th Respondent’s case
Michael Nderitu Ngota swore a replying affidavit dated 28th June, 2018 which was adopted as his evidence-in-chief. The documents in the affidavit were also produced as exhibit. It was his testimony that he was the Director of Sunset Farm Ltd together with Jemima Njeri Gotta and Arcline Gota. He testified that Gota Phares was his late father and that he had died in 2001 December. He testified that his late father was offered parcel no. Njoro/Scheme/717 vide a letter of offer from SFT. He testified that he was to pay Kshs.391,420 and that he had made a deposit of Kshs. 38,490. He further testified that the property was charged to SFT for a sum of Kshs. 394,420. He went on to testify that his father paid the amount and was issued with a title for Nakuru/Njoro/1 for Sunset Farm Ltd. He testified that they did a petition for a grant of letter of administration dated 10th March, 2002. He added that the property was transferred to Sunset Farm Ltd.
Cross-examination by Gichigi:
Upon cross examination by Gichigi, he confirmed that his father Phares Gota worked with the Agriculture Ministry and SFT and later retired as the Director Lands and Settlement. He further confirmed that in 1979 he worked with Lands and Settlement. He stated that the letter of offer was issued on 15th August, 1979. He stated that his father was allocated plot number 1 by the Director of Lands and Settlement. He admitted that he did not know the SFT process and stated that since allocation, the land belonged to them. He added that the Director Settlement was allocated 287 acres. He also stated that the land was never left to family. He stated that he knew the director of the Petitioner. He also stated that SFT was registered on 8th October, 1979. He stated that the land was offered on 15th August, 1979 while his father paid on 27th July, 1979.
On re-examination, he stated that Settlement Fund Trustee had no claim against them and that Pharise Gota was allocated 116ha after which it was transferred to Sunset by transaction.
That marked the close of 19th Respondent’s case.
1st and 2nd DW1 recalled
Elias Muchiri Kamau produced further documents being DEx7, 8(a), 8(b), 9, 10.
On cross examination by Rabut, he stated that the 19th Respondent was issued with an allotment letter dated 15th August, 1979. He confirmed that at the time of offer, SFT had acquired the land.
Upon cross examination by Nuister, he stated that the land was acquired by group squatters who occupied government land. He stated that the allocation went to landless. He further stated that the selection committee was comprised of nominees of area MP.
Upon cross examination by Gichigi, he confirmed that the government took over KERMA Ltd on 12th February, 1979 while the transfer was signed on 31st July, 1979. He added that the payment vouchers were dated 6th August, 1979. He admitted that he did not have any document that showed Gatanga farmers bought the land. He explained that Gatanga farmers had shares from KERMA and that they intended to sell 400 acres to the Petitioner. He admitted that there was no document in that showed the transfer. He added that the government was compulsorily acquiring the property. He further stated that the government financed Gatanga to withdraw from the agreement after which the government took the land before it bought it. He stated that the signatures were for the Director of Security. He further stated that the government never engaged the Petitioner. He stated that they allocated the Petitioner 400 acres and that the money was paid by cheque. He admitted that he did not have a copy of the cheque. He added that the government was in a hurry to acquire the land hence the settlement was called Haraka since this was done in a hurry so as to settle the landless. He also stated that the identification of the beneficiaries was done by the Provincial Administration. He stated that there was no power of allocation, advertisement and how the needy were identified. He stated that the allocations were normal.
On re-examination he stated that the letter dated 8th June, 1979 was addressed to Gatanga and added that Gatanga never raised any complaint. He stated that the government acquired the land and that the owners were KERMA Ltd. He added that Daly & Figis were advocates for KERMA. He further stated that the government acquired on 12th February,1979. He added that it could allocate it to landless and that there was no need to engage the Petitioner since they had no intention with the title.
George Gachere Gitonga testified as DW2. He testified that he was a Land Director with the Chief Land Registrar having worked for 3 years. He testified that he had the land register for government matter IR 17260 LR 10365 being government No. 17309 and LR No. 10337. He testified that they were together with transfers to KERMA Ltd for government No. 17309 from Kenya essential oil Ltd from KERMA Ltd to SFT. It was his testimony that 10337 was transferred from KERMA to Settlement Fund Trustees. He testified that he had a letter of court transfer government No. 10309 to Kenya Essential Oil Ltd to KERMA Ltd. He added that the land document was a court order issued in Petition No. 391 of 2012. He testified that the Petitioners were not registered as owners of the land as there was no entry for the Petitioners. He went on to testify that Settlement Fund Trustees became registered vide transfer and that the entries spoke for themselves. He testified that the land was registered on 8th October, 1979.
Upon cross examination by Mungai, DW2 stated that SFT was the purchaser. He explained that SFT was an agency conceptualized under the Ministry of Agriculture to settle people after independence. He stated that it would operate on available land. He added that the suit land was one of available lands. He stated that there were caveats removed before transfer. He also stated that there was no caveat by the Petitioner.
Upon cross examination by Nuister, DW2 stated that the registration was under RTA. He stated that registration should have been closed when SFT bought the land. He explained that the same involved buying the registration and instructing of surrender. He further explained that the titles were then to be cleared and converted to RLA Cap 300 after which the title was then closed. He stated that the settlement fund settled people on the land before it was their land. He added that there was no surrender hence the reason why the register was still open. He denied being aware of any confirmation from the Land Registrar or Director Survey. He stated that for RLA title in Nakuru, the land register Nakuru would produce the title. He added that the was aware that there were RLA titles issues in Nakuru. He stated that they were in the names of SFT and individuals. He further stated that the land was owned by SFT and that there was no entry since SFT bought it. He stated that while titles had been converted, the registration co-exist. He admitted that there was a problem that needed to be solved. He added that SFT needed to have the registration in Nairobi. He admitted that it was a mistake by SFT.
Upon cross examination by Gichigi, he stated that another court order could be registered and that if the court order was vacated, no other restriction could be registered. He stated that it was possible to regulate if it was not aware of the situation. He also stated that the Nakuru registries were absolute and that notices stops afresh set of titles. He explained that the problem was common conversion which was a process. He added that the fact that letters were issued under KLA, it meant that there was conversion. He stated that the land registration was to receive the intended title then registration was closed. He stated that the transfer to SFT was dated 31st July, 1979. He added that the Land Registrar could place a restriction on the registration.
On re-examination, he stated that RTA had SFT as the registered owner. He added that there was conversion from RTA to RLA and it could be recorded by SFT.
That marked the close of the 1st, 2nd and 3rd Respondent’s case.
20th Respondent’s case-NLC
Frank Kosion Kibelekeya testified that he was the County coordinator Nakuru (NLC). He stated that the suit properties were LR Number 10365, IR No.172260 and LR Number10337, IR NO 17309. He produced his replying affidavit filed on 25th October, 2023 was adopted as his evidence in chief. He testified that he had interacted with elders who came and they did a preliminary report. He testified that the process of preparing the report was that it goes from the committee to plenary. He testified that they were at the preliminary stage and intended to conclude the report. He went on to testify that their findings were that parcel LR No.10337. measured approximately 1,252.5 acres or 678 Ha while C.F number 25150 was 210 acres was for L.R No.10365. He testified that the subject parcels were registered under RTA. He added that L.R No. 10365 had IR No.17260. It was his testimony that there were 7 subdivisions and that perusal of record did not show any records of survey. He went on to testify that the discharge record was found at the County Settlement Office. That the subject parcels under RTA Registration, LR 10337 IIR J7309, LR 10365, IR NO17260 under the Chief Land Registrar was open. He testified that the Petitioner was able to register a caveat. It was his testimony that the team conducted verification of owners of the land guided by sheet No.1 and a report was made by a team.
He testified that the way forward was to make a 2nd ground visit and make a formal recommendation. He confirmed that he was a member of the team. He testified that he relied on the documents produced FK1 in the affidavit as 20th Defendant’s Exh1. He produced letters at folio 34 as 20th DEX2 and 20th DEX 3dated 28th July, 2008. He also produced 20th DEX6-12.
Upon cross examination by Gichigi, He confirmed that the Petitioner approached NLC where they sought for relief on Trust held Land Injustice. He testified that the Commissioner found that it was a trust held land injustice. He stated that he went through the relevant government documents. He confirmed that the Petitioner suffered injustice and it ought to be compensated. He added that since it was over 45 years, the Respondents could not be punished. He stated that he did not complete the report due to lack of resources. He testified that he dealt with 2 parcels of land. LR 10365 and LR No.10338 which they had a preliminary report. He stated that they had found that there was injustice on the Petitioners.
Upon cross examination by Chepkurui, he confirmed that the Petitioner gave him a number of documents including a consent to transfer. He further confirmed that he had not seen transfer or title in their name. He stated that the memorandum of transfer did not have the Petitioner. He was referred to 20th DEX 9 where he I confirmed that he could not tell the author of the office. He was further shown 20TH DEX 2 where he stated that he was aware that Karume withdrew the agreement with the Petitioner. He was thereafter referred to 1st and 2nd DEX 1 where he confirmed the payment voucher dated 6th August, 1979 for Kshs. 2,194,490/= addressed to Daly and Figis. He was further shown 20th DEX 7 where he stated that he was not aware when the criminal case was concluded. He stated that the land was invaded and that that he came to know the Petitioners in 2017. He stated that the number of years of injustice was a loss and that the same amounted to an historical injustice. He stated that people paid money to the seller and they did not take possession but instead arrested. He stated that he blamed destiny and confirmed that investigations were not complete.
Upon cross examination by Mungai, he confirmed that he had read articles 67 2 (e) and had investigated upon the request of the Petitioner. He stated that the commission had 5 years to investigate historical injustice. He stated that he recalled a complaint from Petitioners through a memorandum in the affidavit marked as FKI. He stated that they had received the complaint in form of a petition. He added that there was a company procedure which took a little bit of time. He stated that he later learnt that the matter was before court. He further stated that the exercise was not concluded due to the technicality of the exercise. He added that there was a need to bring other agencies of the government. He stated that they were to use the preliminary report to reply to the petition. He confirmed that they had not conducted on the exercise under section 67 2 (e). but hope to conclude. He further stated that they were part of the committee that went to ground and found that many people had settled. He went on to state that he took a title from owner which had been issued under Registration of Lands Act. He confirmed that there was no caveat nor caution in the year 2000.
He stated that a caution was placed in 2012 and added that they had not decided. He further stated that the people who live on the land are innocent people and that there was no issue against them but between the Petitioners and the current owners. He was referred to 20th DEX 10 where he confirmed that Kerma transferred to the Defendants.
He stated that on 28th July, 1979 (20th DEX 3), the land was illegally acquired. He further stated that the land was allotted to influential persons who served government and not the Petitioners. He added that they were allocated 657 acres while the squatters were allocated from 1 acre making the total acres 1,252. He also stated that there were no complaints by squatters. He stated that all the land had been subdivided save for two or three. He also stated that Ikenye and Mbijiwe retained the farm house.
Upon cross examination by Ragut, he confirmed that their reports were usually dated. He admitted that FK3 was not dated. He confirmed that he had not seen the sale agreement of 1977. He stated that the Petitioner complained that their office was invaded and documents taken away. He stated that they had interviewed the settlers, provincial administrator and the person manning the farm gate. He admitted that the report did not indicate historical injustice but added that it was from the ground statement report. He confirmed that paragraph 9 referred to a complaint of historical while the preliminary report did not indicate historical injustice. He also stated that the Petitioners were landlords but decided to use their money and buy land. He admitted that he did not have evidence that the state broke into the Petitioner’s office but only relied on the petition. He confirmed that he did not know the members of the Petitioner and added that he had never interviewed the permanent people or squatters. He stated that a government settlement scene could not allocate more than 5 acres.
He was referred to Gotas affidavit where he confirmed he had not seen the charge document. He also confirmed that there was no acreage. He stated that Gota was to pay Kshs. 591,420 for the land.
Upon cross examination by Aziz, he stated that there was a difference between purchase and settlement. He confirmed that he had not received the sale documents as they had been taken away by the attackers. He stated that he was not aware whether reconciliation was completed. He stated that he could identify the land that had been taken and added that there was also a farm house. He further stated that the entire land was sold and subdivided. He also stated that Bamboo was an innocent buyer.
Upon re-examination, he stated that he saw a consent to transfer dated 1th September, 1979 between Kerma and Matuguta whose purpose was for sale on transfer. He stated that the consideration was Kshs. 1,860,000. He stated that he interacted with the documents of the Petitioner through a memorandum and realized that it met the threshold of historical injustice. He added that investigations were never completed because of the funds. He also stated that the Respondents not well settled since there was a dispute within the parties. He stated that 20th DEX 3 was signed by P K Gotta and added that there was a breach of duty and abuse of office by Mr Gotta. He stated that once could not issue a contested title. He stated that the farm was taken fraudulently and by force from Kerma Ltd. He added that the government through the ministry of lands took over the land from the company owners forcefully. He stated that the Petitioners occupied the farm but were attacked by the government. He stated that he blamed the government for the Petitioner’s suffering. He stated that he went with technical officers, surveyors, physical planner and land officer to the ground. He stated that the report was for the petition. He added that they stopped the investigations since the matter was in court.
That marked the close of 20th Respondents case.
Submissions
None of the parties filed their submissions in time.
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) Whether there was violation of the Petitioner’s constitutional rights by the government and Respondents.
b) Who are the lawful owners of the suit parcels?
c) Who is to bear the costs of the suit.
It is the Petitioner’s case that they were forcefully evicted from the parcel lands and arrested thus resulted in infringement of their rights to property, displacements, historical injustice and violation of their constitutional rights. It was also their case that the suit lands were thereafter registered in the names of the 1st and 19th Respondents. It is this court’s view that one cannot tell with precision and finality that the Petitioners were in occupation of the suit lands. I am of the opinion that none of the Petitioner’s witnesses confirmed that they took possession and cultivated the suit lands, instead it was their evidence that at the time they were in the process of settling, that’s when they were violently evicted.
Section 15(2)(3) of the National Land Commission provides s description of historical injustices and the threshold for such a claim to be admitted, registered and processed (by NLC) as follows:
“15.(2)For the purposes of this section, a historical land injustice means a grievance which—
a. was occasioned by a violation of right in land on the basis of any law, policy, declaration, administrative practice, treaty or agreement;
b. resulted in displacement from their habitual place of residence;
c. occurred between 15th June 1895 when Kenya became a protectorate under the British East African Protectorate and 27th August, 2010 when the Constitution of Kenya was promulgated;
d. has not been sufficiently resolved and subsists up to the period specified under paragraph (c)and
e. meets the criteria set out under subsection 3 of this section.
3.A historical land claim may only be admitted, registered and processed by the Commission if it meets the following criteria—
a.it is verifiable that the act complained of resulted in displacement of the claimant or other form of historical land injustice;
b.the claim has not or is not capable of being addressed through the ordinary court system on the basis that—
i.the claim contradicts a law that was in force at the time when the injustice began; or
ii.the claim is debarred under section 7 of the Limitation of Actions Act (Cap. 22) or any other law;
c.the claimant was either a proprietor or occupant of the land upon which the claim is based;
d.no action or omission on the part of the claimant amounts to surrender or renouncement of the right to the land in question; and
e.it is brought within five years from the date of commencement of this Act.”
The 20th Respondent being the County Coordinator of NLC testified that that they had received a complaint of historical injustice from the Petitioner. Upon cross examination, he confirmed that they had not finalized their investigation due to lack of resources. He also admitted that their report did not indicate historical injustice. It is this court’s view that from the evidence adduced it is clear that the 20th Respondent’s never finalized their investigations. It is therefore the courts finding that the 20th Respondent bestowed with the mandate to recommend historical injustice did not adduce conclusive evidence to warrant this court find that there was historical injustice.
Further the Petitioner in its pleadings raised violation of various its constitutional rights including Articles 20, 21, 43 and 50 of the Constitution. In the Court of Appeal case of Mumo Matemu versus Trusted Society of Human Rights Alliance (2013) eKLR, although the court appreciated the importance of substantive justice under Article 159 of the Constitution, it held that:
“The principle in Anarita Karimi Njeru (supra) underscores the importance of defining the dispute to be decided by the court. In our view, it is a misconception to claim as it has been in recent times with increased frequency that compliance with rules of procedure is antithetical to Article 159 of the constitution and the overriding objective. Principle under section 1A and 1B of the Civil Procedure Act (Cap 21) and Section 3A and 3B of the Appellate Jurisdiction Act Cap 9. Procedure is also a hand maiden of just determination of cases. Cases cannot be dealt with justly unless the parties and the court know the issues in controversy. Pleadings assist in that regard and are a tenet of substantive justice as they give fair notice to the other party. The principle in Anarita Karimi Njeru (Supra) that established the rule that requires reasonable precision in framing of issues in constitutional petitions is an extract of this principle”. [Emphasis mine]
It was held in the above case that it was not sufficient for a Petitioner to simply refer to various Articles of the constitution without linking the said Articles to the issues for determination. It must set out the Articles alleged to have been violated or threatened with violation and state the relevance of these Articles to the issues for determination. In the present case, the Petitioner fell short of making linkages between the acts of violations complained of, with the Articles of the constitution invoked as well as the issues presented for the determination. It is therefore this court’s view that the alleged constitutional right violations by the Petitioner lacked the required specificity to the rights alleged to have been violated.
Going to the second issue, it is not in dispute that the suit parcels were initially owned by the interested party. This is evidenced by the entry number 3 on the grant I.R 17260 (DEX5).
Sections 107, 108 and 109 of the Evidence Act, provided as follows;
“107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either said.
109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall be on any particular person.”
The Petitioner contends that through its members they bought the suit land from the interested party on 11th August, 1977 through their advocates Daly and Figgis at a consideration of Kshs. 1,860,000/=. It was the Petitioner’s case that they lost the sale agreements and receipts of payment during the arrest and that they were unable to retrieve the same from the Nakuru police. The 1st and 2nd Respondents gave evidence to the fact that Kerman Limited offered to sell its shares to Gatanga Farmer’s Cooperative Society who later withdrew and the government acquired the same through SFT. They produced evidence of payment of the purchase price vide payment vouchers (DEX8&9) It is a fact that the 1st and 2nd Respondents produced the letter dated 22nd June, 1979 (DEX1) confirming withdrawal of Gatanga Farmers from the transaction. There is also evidence vide a letter to Daly and Figis dated 24th February, 1979(DEX3) that the government acquired the suit land from SFT for purposes of settling landless people. This court has also perused the court records and there is evidence to the fact that on 28th July, 1979 the Director of Settlement wrote to the Petitioners correcting the error that they were allocated the 400 acres by the late President Daniel Moi. It is a fact that the said letter informed the Petitioners that there was no land for distribution. There is also evidence of transfer from Kerma Limited to SFT dated 31st July, 1979.
The 19th Respondent led evidence to the fact that Phares Gote the Director Settlement was allocated 287 acres after which he sold the same to third parties. This court is alive to the fact that that the Petitioner is challenging the legality of the Respondents’ titles to the suit lands. It cannot be gainsaid, that when the title of a party is under challenge, the concerned party ought to go beyond and show that he validly acquired title. This position is well captured in the Court of Appeal case of Munyu Maina vs. Hiram Gathiha Maina, Civil Appeal No.239 of 2009 where it held that: -
“We have stated that when a registered proprietor root of title is challenged, it is not sufficient to dangle the instrument of title as proof of ownership. It is that instrument of title that is challenged and the registered proprietor must go beyond the instrument to prove the legality of how he acquired the title to show that the acquisition was legal, formal and free from any encumbrances including any and all interests which would not be noted in the register.”
Further, Section 24(a) of the Land Registration Act provides that:
“Subject to this Act, 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.”
Section 26(1) of the Land Registration Act further 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
b) Where the certificate of title has been acquired illegally, unprocedurally 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 the court 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]
It is fact that there was no allegation in the Petitioner’s petition that the Respondents obtained their titles through fraud or misrepresentation, or illegally, unprocedurally or through corrupt scheme. It is this court’s view that the Respondents proprietary interest was registered and could only be challenged under Section 26(2) of the Land Registration Act. Subsequently, as title holders they enjoy statutory protection by dint of the said section 26(1) (b) of the Land Registration Act. In the circumstance, this court finds that the Respondents are the lawful owners of the suit properties herein having purchased the same from the 19th Respondent.
It is this court’s view that the Petitioner failed to prove its case to the required standard of proof on a balance of probabilities and therefore this court shall not grant the prayers as sought in the petition. The upshot of the foregoing is that the Further Amended Petition dated 17th September, 2019 is hereby dismissed. Each party to bear its own costs. It is so ordered.
JUDGMENT DATED, SIGNED AND DELIVERED ELECTRONICALLY THIS 9TH DAY OF 0CTOBER 2024.