REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAKURU
ELC NO. 15 OF 2021
OMAR MOHAMED OMAR……………………..............................................................................PLAINTIFF
VERSUS
LINAH CHEMUTAI
ROTICH (Sued as the legal personal representative
of JOHN KIBET ROTICH)….…................................................................................1 ST DEFENDANT
DANIEL KIPKORIR
NGERECHI…………………………………………………………..............................2 ND DEFENDANT
CHIEF LAND REGISTRAR……………………………………….................................3 RD DEFENDANT
THOMAS KIPROP KIRUI…………………………………………...............................4 TH DEFENDANT
AGRICULTURAL DEVELOPMENT
CORPORATION……………………………………………………...............................5 TH DEFENDANT
JUDGMENT
1. By a Plaint dated 19 th February 2021 and subsequently amended on 7 th July, 2021, the Plaintiff herein sued the Defendants seeking the following orders:
a) A permanent injunction be issued restraining the Defendants either by themselves, their agents or servants or otherwise howsoever from interfering with the Plaintiffs quiet and peaceful possession and occupation all that parcel of land known.as Njoro/Ngata Block 27/20 situated in Nakuru.
b) A permanent injunction against the Defendants prohibiting them whether by themselves, their agents or servants from entering upon, cultivating upon, transferring, occupying, leasing, charging, assigning or interfering with the Plaintiffs quiet possession of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru, in default of compliance an eviction order do issue and which order should be enforced by the Officer Commanding Station, Menengai Police Station.
c) A declaration that the Plaintiff is entitled to ownership and occupation of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru to the exclusion of the Defendants herein.
d) A declaration that any title documents held by the 1 st and 2 nd and 4 th Defendants relating to the property known as Njoro/Ngata Block 27/20 is invalid, null and void.
e) Costs of the suit.
2. The 1st and 2nd Defendants filed a Statement of Defence dated 14 t October, 2022, to the Amended Plaint dated 7 th July 2021, and denied the averments in the Plaint and urged the court to dismiss the Plaintiff’s claim with costs and declare the 1 st Defendant as the lawful allotee of the suit land.
3. The 3 rd Defendant filed its Statement of Defence dated 11 th August, 2021 while the 5 th Defendant filed its Statement of Defence dated 27 th May, 2022 where they denied the contents in the Amended Plaint.
4. The 4 th Defendant filed his Further Amended Statement of Defence and Counterclaim dated 3 rd February, 2022 where he averred that he acquired the suit parcel from the 5 th Defendant and sought for the following orders:
a) A declaration that THOMAS KIPROP KIRUI the Plaintiff to the Counterclaim/4 th Defendant is the lawful owner of the property comprised in Title Number LR 13287/34 (IR 40236/14).
b) A declaration that the 1 st Defendant to the Counterclaim/Plaintiff can espouse his claim respecting the purported land parcel number Njoro/Ngata Block 27/20 whenever it exists but such a claim should not be laid on the Plaintiff to the Counterclaim/4 th Defendant’s land parcel number LR 13287/34 (IR 40236/14).
c) A declaration that the Plaintiff to the Counterclaim/4 th Defendant’s parcel number LR 13287/34 (IR 40236/14) is not parcel number Njoro/Ngata Block 27/20 if at all the latter parcel exists.
d) A permanent injunction restraining the 1 st Defendant to the Counterclaim/Plaintiff himself, his servants, agents and or any other person acting at the Plaintiff’s behest from interfering with the Plaintiff to the Counterclaim/4 th Defendant’s land parcel number LR 13287/34 (IR 40236/14).
e) That the 1 st Defendant to the Counterclaim/Plaintiff bears the costs of this suit and counterclaim.
PLAINTIFF’S CASE
5. PW1 Omar Mohamed Omar adopted his witness statement dated 25 th August, 2021, as his evidence in chief and testified that he is the owner of L.R No. 13287/34 , which he purchased on 12 th May, 2004 from Francis Bor Changwony at a consideration of Kshs. 12 Million, that he paid through his advocate, Joseph Rioba, which amount Francis Bor acknowledged receipt of in the sale agreement. He stated that he took possession thereof in May 2004, kept animals and planted maize but vacated it on 10 th March, 2021, when goons invaded the property.
6. It was PW1’s evidence that after conducting due diligence, he established that Francis Bor Changwony applied for allocation of 24 acres from the 5 th Defendant, ADC vide a letter dated 13 th February, 1999, which PW1 produced as Pex. No. 8. PW1 further testified that Francis Bor Changwony paid the purchase price of Kshs. 40,720 to ADC for the allocation and was issued with a receipt by Lands Limited, and a transfer was subsequently registered by the 3 rd Defendant conveying the interest from ADC to Francis Bor Changwony culminating in the issuance of a Grant No. IR 47995 dated 7 th July, 1989, which he produced as Pex. No 6.
7. PW1 produced the title dated 10 th March 2020 as Pex No.1 and further produced a certificate of official search dated 12 th February, 2021 which was marked PMFI-2, and photographs at Pages 6 – 8 of the destruction of the gate on the suit property as PMFI-3(a) – (e). PW1 also stated that his advocates wrote a letter to the DCI Nakuru dated 18 th February 2021, which he produced as PExh.4, and a transfer dated 30 th June, 1989 between the 5 th Defendant and Francis Bor Chepkwony for LR No. 1328/34 as PExh.5.
8. PW1 further produced documents in the bundle at pages 53 to 74 as Pex. No. 9 to 16, and testified that at page 24 of the bundle a certificate of title issued to Francis Bor Changwony under entry No. 2, was a transfer to PW1 vide Presentation Book No. 1569 of 24 th August, 2005. He further testified that entry No. 3 was a surrender to the Government of Kenya pursuant to a conversion which entry is dated 15 th October, 2019. He also referred to page 50 of the bundle, a letter of consent between the 5 th Defendant and Francis Bor Changwony dated 12 th June, 1999, and produced as Pex. No. 7.
9. It was PW1’s further testimony that Francis Bor Changwony executed a transfer dated 13 th July, 2004, got a consent from the Nakuru Land Control Board dated 22 nd July, 2004 to transfer L.R No. 13287/34 from Francis Bor to himself and subsequently PW1 was registered by the 3 rd Defendant as the owner of the suit land on 24 th August, 2005 after assessment and payment of stamp duty.
10. According to PW1 , he remained in occupation uninterrupted until 2 nd February, 2021 when the 1 st and 2 nd Defendants tried dispossessing him without any justification, which prompted him to lodge a complaint with the Directorate of Criminal Investigations (DCI) and later filed the current suit where the court granted orders of injunction against the 1 st and 2 nd Defendants but there were threats on his life and that of his workers, which forced him to relinquish possession.
11. PW1 therefore urged the court to grant the orders as prayed in the Amended Plaint with costs.
12. Upon cross-examination by Ms. Shirika, PW1 stated that he had sued the 3 rd Defendant the Chief Land Registrar as he was in a better position to explain what transpired in the transaction as the custodian of land records.
13. Upon further cross-examination by Mr. Murimi, for the 4 th Defendant, PW1 confirmed he bought the suit property on 12 th May, 2004 from Francis Bor Changwony at a consideration of Kshs.12Million. He stated that the search document showed that Francis Changwony was the owner of the suit land.
14. It was PW1’s evidence that he paid the said amount in cash through their lawyer Joseph Rioba, and that the advocate had Kshs.7 million from other transactions but admitted that he did not have the evidence of payment of Kshs.7 Million. PW1 further stated that he paid Kshs.5 million cash in the lawyer’s office but did not have the Bank statement in court. It was his testimony that Mr. Francis Bor Changwony was deceased and that he took possession of the suit land after the sale agreement and vacated on 10 th March, 2021.
15. He further stated that the court order of 19 th May, 2021 showed that the 4 th Defendant was in occupation and that he had surrendered the title for conversion on 15 th October, 2019 and got a new title on 10 th March, 2020.
16. PW1 confirmed that he took possession of the suit property in 2004 but did not seek conversion until 2019, and explained that Francis Bor Changwony (deceased) had been allotted this parcel of land by the 5 th Defendant which held the mother title and had documents in respect of the suit land. PW1 also confirmed that his parcel No. LR No. 13287/34 was a subdivision of the mother title LR No. 13287 with 164 entries in the mother title, and admitted that Francis Bor Changwony (deceased) was not in the entries.
17. PW1 admitted that Entry No. 14 was for the 4 th Defendant parcel No. 13287/34 which was the suit land before conversion and that Entry No. 160 was to John Rotich LR No. 16672/35, and that the transfer referred to survey plan No. 122715 while the certificate of title referred to survey plan No. 139444. PW1 was referred to page 24 of the bundle and stated that there was a charge to KCB on 17 th June, 1991 and a further charge on 15 th April, 1994, second charge on 4 th May, 1995 and discharge of charge on 19 th July, 2012.
18. It was PW1’s further testimony that the 4 th Defendant was compensated for easement in respect of his parcel of land but that he could not confirm that it was the same as LR No. 13287/34. He added that the valuation documents showed that the 4 th Respondent was the owner of the suit land. PW1 also admitted that the 4 th Defendant paid stamp duty on 19 th July, 2012, but could not confirm the authenticity of the documents that he did not have knowledge of. He also stated that he could not confirm the document dated 16 th June, 2021 on the petition against conversion of the titles. PW1 stated that he paid stamp duty when he bought the land but did not have the receipt in court.
19. On cross-examination by Ms. Kyalo for the 1 st and 2 nd Defendants, PW1 stated that he was born on 16 th December, 1975 and that he bought the suit land in 2004 and that there were structures on the suit land when he took possession where he kept animals and planted maize but did not have evidence for the above activities. PW1 stated that the letters from ADC dated 2 nd May, 1989 were authentic. It was PW1’s testimony that he paid the purchase price cash to Advocate Joseph Rioba but did not have the receipts in court. PW1 admitted that he was not in possession of the suit land since he vacated in March 2021, after goons invaded the land.
20. On cross-examination by Mr. Karumpu, PW1 stated that they paid money through Joseph Rioba Advocate who was not a witness in the matter. He added that the land conversion was a process initiated by the Lands office.
21. PW1 admitted that the letter by the 5 th Defendant dated 27 th April, 1989 addressed to Francis Bor Changony did not have the land parcel number and that the letter dated 23 rd May, 1989 from Francis Changony to the Managing Director of the 5 th Defendant showed a Banker’s cheque No. 12404 of Kshs.40,720/= and a receipt by Lands Ltd for Kshs.40,720/=.
22. On re-examination, by Mr. Rapando, PW1 stated that Lands Ltd was an affiliate of the 5 th Defendant and further testified that he conducted a search on the suit parcel but was not able to confirm the authenticity of the entries of the 2 nd Defendant's documents in the mother title.
23. PW1 stated that he had not been shown the actual remittance to the 4 th Defendant, and that the actual survey plan No. was 122715 for title No. 13287/34 having been registered on 17 th July, 1999. PW 1 further stated that he paid the purchase price as shown on the transfer at page 70 of the bundle. PW1 stated that the DCI report dated 27 th August, 2021 found that his documents were genuine, and further that there was no report from the Ministry of Lands that his documents were not genuine.
DEFENCE CASE
24. DW1, (3rd Defendant) Edwin Munoko Wafula, the Land Registrar, adopted his witness statement dated 11 th August, 2021 as his evidence in chief and produced a list of documents dated 11 th August, 2021, as Dex. No. 1. The witness was stood down to bring the parcel file.
25. DW2 (2 nd Defendant) Daniel Kipkirui Ngerechi testified that he had the authority to give evidence on behalf of the 1 st Defendant and adopted his witness statement dated 14 th October, 2022, as his evidence in chief. He also produced his list of documents dated 14 th October, 2022, as Dex. No. 1 to 4.
26. Upon cross-examination by Ms. Shirika, for the 3 rd Defendant, DW2 stated that he had no evidence against the Land Registrar, but stated that the Land Registrar colluded with the Plaintiff. DW2 admitted that he had not written to the Land Registrar regarding the complaint and that the documents were with ADC, who are the custodians. He further stated that the land was allocated to John Rotich but he was not aware of the documents that were used to register John Rotich’s interest.
27. Upon cross-examination by Mr. Murimi, who referred DW2 to a letter dated 6 th June, 1994 from the 5 th Defendant where he stated that John Rotich was allocated the suit land by the 5 th Defendant. He further stated that he was not aware that the 5 th Defendant had issued another title and that the grant No. was 40236/1, LR No. 13287 and that Entry No. 160 was an allotment to John Rotich. He added that LR No. 16672/35 measuring 4.2 hectares was approximately 10 acres.
28. DW2 further stated that the case before the court was for LR No. 13287/34, and that there was no evidence that it was allocated to John Rotich. He stated that Entry No. 14 was a transfer to the 4 th Defendant for LR No. 13287/34 and that the 4 th Defendant has been cultivating maize on the land.
29. It was DW2’s evidence that John Rotich is not in occupation of the suit land as he has a different parcel of land where he resides. DW2 stated that the 1 st Defendant reportedly consented to the offer in a letter dated November 7, 1988. DW2 further pointed to a February 6, 1990, letter from ADC, which allegedly stated the purchase price for the land would be shared later and requested a payment of Kshs. 18,940.00 to start the title paperwork.
30. Upon cross-examination by Mr. Karumpu, DW2 stated that parcel No. 13287/34 was allocated to John Rotich by the 5 th Defendant, but was not privy to any other allocation to the 1 st Defendant. DW2 further stated that he neither knows how the Plaintiff’s and the 4 th Defendant’s claims arose. DW2 further stated that he came across the documents of allotment from the 4 th Defendant and added that John Rotich followed the procedure for allocation of the land.
31. On cross-examination by Mr. Rapando, DW2 sated that he was testifying on behalf of the 1 st Defendant John Rotich vide a power of Attorney which he had not produced in court. He admitted that the 1 st Defendant neither had transfer documents, a title, a consent from the Land Control Board, nor evidence of payment of stamp duty.
32. DW2 further stated that he was only claiming an interest on behalf of the 1 st Defendant, and confirmed that the letter dated 31 st October, 1988, being the purchase document, did not mention any LR No. He also admitted he neither had the original nor a certified copy in court.
33. DW2 stated that he did not have the application for allocation of the parcel by the 1 st Defendant John Rotich who was a Provincial Forest Officer Rift Valley who wrote a letter dated 7 th November, 1988 on a government letterhead but did not mention the suit property. He stated that the letter dated 6 th February, 1990 communicated the purchase of LR No. 13287/34 but failed to mention the purchase price. DW2 admitted that he had not filed any documents to show that Kshs.18,940/= was remitted to ADC, the 5 th Defendant. He stated that John Rotich denied that he swore the replying affidavit on 15 th March, 2021, but that it was sworn by an advocate whom he had not instructed. It was his evidence that he had not lodged any complaint against the lawyer.
34. It was DW2’s testimony that the 5 th Defendant was aware that the 4 th Defendant fraudulently got his name in the allocation register. Further, when DW2 was referred to the letter dated 31 st October, 1988, he stated that the parcel referred to measured 25 acres. DW2 further stated that he neither had any sale agreement between John Rotich and ADC, the 5 th Defendant, nor any payment receipts. He also stated that he was not aware whether John Kibet Rotich had authority to write a letter on behalf of the 5 th Defendant.
35. On re-examination by Ms. Kyalo, he stated that there was an entry in favour of John Rotich, and further that the letter dated 6 th February, 1990, did not have the LR number but referred to the previous letters of allocations and the owner of the suit property was John Rotich.
36. DW3 (3 rd Defendant) Patrick Oyalo stated that he is a businessman but was previously a Police Officer based at the DCI office in Rongai sub-county, Nakuru County. He testified that he conducted investigations over the suit property and produced the Report that was forwarded to the Attorney General vide a letter dated 26 th August, 2020, contained in the 3 rd Defendant’s supplementary list of documents dated 27 th August, 2021. He produced the report as Dexh. No. 1 3 rd Defendant).
37. Upon cross-examination by Ms. Kyalo, he admitted that the report was not dated, but had interviewed the Plaintiff, 4 th Defendant and Fredrick Mutai. He admitted that he had interviewed neither John Bett nor Daniel Kipkirui. He stated that he got the documents from the 5 th Defendant and the records Officer Okinyo.
(Witness stood for further cross-examination.)
38. Mr. Edwin Munoko Wafula was recalled where he adopted his witness statement dated 11 th August, 2021, as his evidence in chief, and testified that the parcel No. in dispute is Njoro/Ngata Block 27/20, whereby the deed file had a copy of the title that was kept in the registry. He explained that Njoro/Ngata Block 27/20, before conversion from RTA to RLA, was IR No. 47995, and the proprietor was the Plaintiff, who surrendered the document.
39. DW1 produced certificate of title as Dex No. 1, the surrender document as Dex No. 2 and the original title as 3 rd Defendant’s Dex No. 3. He also produced a copy of Rent clearance certificate for IR No. 27995 issued to Francis Bor Changwony and dated 13 th July, 2004 as 3 rd Defendant’s Dex No. 4.
40. He further produced a copy of the transfer document dated 13 th July, 2004 in respect of IR No. 47995 from Francis Bor Changwony to the Plaintiff as 3 rd Defendant’s Dex No. 5. He testified that he had the parcel file with the green card in respect of Njoro Ngata Block 27/20 and that the registered owner was the Plaintiff.
41. He stated that Entry No. 1 dated 10 th March, 2020 was to the Government of Kenya, No. 2 to the Plaintiff and No. 3 was the title deed issued, which he produced as 3 rd Defendant’s Dex. No.6. DW1 further produced the transfer document dated 14 th February, 2020 of the suit land from County Government of Nakuru to the Plaintiff and registered on 10 th March, 2020 as 3 rd Defendant’s Dex No.7. He stated that he was not aware of any documents which showed that the land registry had issued the suit land to two different people and produced the forwarding letter addressed to the District Land Registrar dated 6 th March 2020 forwarding the lease document of the suit land as Dex No.8. He also stated that the registered owner of the suit land is the Plaintiff Omar Mohammed Omar.
42. Upon cross-examination by Mr. Karumpu, DW1 stated that the purpose of conversion was to decentralize the land registry as the land was in the Central Registry in Nairobi. He further stated that there is no provision for conversion for purposes of facilitating a fraudulent transaction. It was his evidence that it is the owner of the land who surrendered the original title, and that Francis Bor Changwony was the previous proprietor. He added that the surrendered title was kept in the deed file and that when a parcel had more than 2 titles, they had to investigate.
43. Upon cross-examination by Mr. Murimi, he confirmed that he had never worked at the Nakuru Land Registry and that the deed files were normally kept in the Central Registry, Nairobi. He also stated that he got the said deed file at the Nakuru Land Registry and that the land was initially owned by the 5 th Defendant. It was DW1’s testimony that the original grant was IR 40236 and was in the name of Francis Bor Changwony. He further stated that he was not aware that the 5 th Defendant had produced an original grant IR 40236 which had 164 entries where Francis Bor Changwony’s name did not appear in the entries.
44. DW1 stated that the grant LR 40236/14 and LR 13287/34 were the same, and referred to entry No. 14 which indicated that the allocation was to the 4 th Defendant and not Francis Bor Changwony. He further stated that on 13 th July, 2004, Francis Bor transferred the property for Kshs. 12 million, but he stated that he had not seen any receipt for payment of stamp duty.
45. It was Dw1’s evidence on cross-examination that the deed of surrender was dated 15 th August, 2019, but he was not aware of any complaint of titles being converted from RTA to RLA without their consent. Witness was shown a transfer from the 5 th Defendant to the 4 th Defendant and a copy of the title IR No. 40236/23 in the 4 th Defendant’s name.
46. DW1 stated on cross-examination that the transfer in the mother title was IR 40236/14 and that the 4 th Defendant’s documents were in tandem with the documents held by the 5 th Defendant. He went on to state that in Entry No. 2, the 4 th Defendant changed the suit property to KCB. He explained that it would not have been possible if Francis Bor owned the property since he had a second charge and further charge on 19 th July, 2012.
47. DW1 stated on cross examination that the property was a freehold and therefore rent was not payable for freeholds. He added that Francis obtained a rent clearance certificate and the transfer from county government should be the government of Kenya and not County Government of Nakuru and therefore the document was inconsistent.
48. DW1 was referred to the Petition dated 16 th June, 2021 where he stated that the letters were written to the Cabinet Secretary complaining that there was conversion of their land without their knowledge, but explained that the correspondence file could have shed light and only a person from Land Administration Department would have explained the details in the documents.
49. Upon cross-examination by Ms. Kyalo, DW1 stated that he currently worked at Chuka Land Registry and that had gotten the documents from the Nakuru Land Registry and that he was giving evidence on behalf of the Chief Land Registrar.
50. DW1 state that here was a circukar in the Ministry that if you had recorded a statement in a case, you must finish the case and that he had recorded the statement while working in Nairobi. He also stated that he had never dealt with a conversion, but explained that one had to make an application with a copy of a title and that one could not proceed with conversion if the title did not belong to the applicant. He also stated that the applicant in this case was the Plaintiff and the title was for Francis Bor but that there was entry No. 2 in the Plaintiff’s name. He further stated that he was not aware that there were other parties claiming the suit land.
51. Upon cross-examination by Mr. Rapando, he stated that as at 11 th August, 2021, he worked in the Court section at Ardhi House Nairobi and that his duties were to give instructions to the Attorney General where the Chief Land Registrar had been sued. He was referred to certificate of title in the 4 th Defendant’s name and stated that it was not one of the documents that was referred to him by the Attorney General. He was also referred to paragraph 16 of the defence and counterclaim where he stated that the entry was made in error to the 4 th Defendant.
52. DW1 further stated that the record of the title to the 4 th Defendant Thomas Kirui was not found in the Chief Land Registrar’s records, and explained that in order for a charge to be validly registered there had to be a charge registered similar to a further charge instrument and discharge of charge. DW1 also stated that he had neither been shown a charge instrument nor a further charge and 2 nd further charge instrument. He also stated that one could not register a valid charge without a Land Control Board consent, and could not comment on the entries or the authenticity without having seen the documents.
53. According to DW1, the Kenya Pipeline Company Notice had the details of registered owners are provided but the postal rentals of owner of parcel No 13287/34 was not indicated. It was DW1’s evidence on cross- examination that the purpose of the gazette notice was to inform the public of the intention to acquire, which invited comments from interested parties. Further that a notice is succeeded by an inquiry to establish the genuine owners for purposes of compensation and matters of the inquiry be recorded.
54. DW1 further explained that the final discussion was then to be communicated by way of an award and payment made to the genuine owners. Further that the gazette notice was not conclusive proof of ownership and stated that he had not seen any minutes of inquiry or evidence of an award to Thomas Kirui, the 4 th Defendant.
55. It was DW1’s testimony that the process was to be completed by an excision and that there was no entry for excision by Kenya Pipeline, and added that they had not cited the complaints in the records of the 3 rd Defendant or any determination of the complaint.
56. He stated that a provisional certificate of title was issued on 24 th January, 2007 which is issued if the owner lost a title. He further stated that the 5 th Defendant , ADC, filed a provisional title and not the original.He explained that a deed of indemnity was necessary so that the government was not liable to the information provided, and that the land registry relies on the information given by the Applicant.
57. DW1 also stated that the mother title was in respect of LR No. 13287 in a subdivision and that the titles would run from a series of 13287 and stated that the title could not accommodate LR No. 13287. He stated that Entry No. 163 was in respect of LR No. 16672/8 and 9 while Entry No. 160, 156 and 157 related to a different series. It was his evidence that the series should be the same from the original LR number, and further stated that the entries were not consistent with the way they should be. He stated that leases were prepared in the Land Administration Department.
58. On re-examination, by Ms Shirika, DW1 stated that when the Chief Land Registrar has been sued, they do not require summons to come to court, as they can be called by the Attorney General to come and give evidence. He further stated that at the time he prepared the statement, he was working in the court section – Ardhi House Central Registry and the deed file was still in Nairobi and later transferred to Nakuru as the land had undergone conversion.
59. DW1 also stated that there were two issues since the matter touched on RTA and when the Chief Land Registrar has been sued, an officer from Nairobi had to come to court and not the Land Registrar. He admitted that he had not seen the documents by the Defendants in the parcel file and would not know who is on the ground.
60. DW3, Patrick Oyalo, was recalled for further cross-examination and upon cross-examination by Ms. Kyalo, he stated that he learnt of the present case at the time they were carrying out investigations. It was his evidence that he came to learn about the 1 st and 2 nd Defendants upon receipt of a court order and explained that he sought the assistance of Mr. Wakiaga Advocate but never followed up since the advocate informed him that they would pursue a civil case.
61. He stated that they were given the documents by the original owner the 5 th Defendant who had a duty to allocate the land and there was no reason to dispute that position. He further stated that the people he interviewed did not talk about the 1 st and 2 nd Defendants.
62. Upon cross-examination by Mr. Murimi, DW3 stated that the 1 st owner was the 5 th Defendant, ADC and further stated that he neither investigated the money trail of payment of Kshs.12million by the Plaintiff nor seen any payment receipt for stamp duty. He added that the complaint was by the 4 th Defendant , Thomas Kirui who reported that on 11 th March, 2021 the Plaintiff claimed ownership of the suit land.
63. According to DW3, when he got the documents from the 5 th Defendant and Ministry of Lands, there were no records of the 4 th Defendant, Thomas Kirui, and that he had not been supplied with the information that the 4 th Defendant had been allocated the land.
64. He further stated that the findings were that the Plaintiff bought the land in August 2005 and the documents the 4 th Defendant provided never reflected in the Ministry of Lands file. He also stated that the search supplied was dated 12 th March, 2021 and that the search by the 4 th Defendant was a recent one. He stated that his findings were that the 4 th
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IN THE ENVIRONMENT AND LAND COURT AT NAKURU
ELC NO. 15 OF 2021
OMAR MOHAMED OMAR……………………..............................................................................PLAINTIFF
VERSUS
LINAH CHEMUTAI
ROTICH (Sued as the legal personal representative
of JOHN KIBET ROTICH)….…................................................................................1 ST DEFENDANT
DANIEL KIPKORIR
NGERECHI…………………………………………………………..............................2 ND DEFENDANT
CHIEF LAND REGISTRAR……………………………………….................................3 RD DEFENDANT
THOMAS KIPROP KIRUI…………………………………………...............................4 TH DEFENDANT
AGRICULTURAL DEVELOPMENT
CORPORATION……………………………………………………...............................5 TH DEFENDANT
JUDGMENT
1. By a Plaint dated 19 th February 2021 and subsequently amended on 7 th July, 2021, the Plaintiff herein sued the Defendants seeking the following orders:
a) A permanent injunction be issued restraining the Defendants either by themselves, their agents or servants or otherwise howsoever from interfering with the Plaintiffs quiet and peaceful possession and occupation all that parcel of land known.as Njoro/Ngata Block 27/20 situated in Nakuru.
b) A permanent injunction against the Defendants prohibiting them whether by themselves, their agents or servants from entering upon, cultivating upon, transferring, occupying, leasing, charging, assigning or interfering with the Plaintiffs quiet possession of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru, in default of compliance an eviction order do issue and which order should be enforced by the Officer Commanding Station, Menengai Police Station.
c) A declaration that the Plaintiff is entitled to ownership and occupation of all that parcel of land known as Njoro/Ngata Block 27/20 situated in Nakuru to the exclusion of the Defendants herein.
d) A declaration that any title documents held by the 1 st and 2 nd and 4 th Defendants relating to the property known as Njoro/Ngata Block 27/20 is invalid, null and void.
e) Costs of the suit.
2. The 1st and 2nd Defendants filed a Statement of Defence dated 14 t October, 2022, to the Amended Plaint dated 7 th July 2021, and denied the averments in the Plaint and urged the court to dismiss the Plaintiff’s claim with costs and declare the 1 st Defendant as the lawful allotee of the suit land.
3. The 3 rd Defendant filed its Statement of Defence dated 11 th August, 2021 while the 5 th Defendant filed its Statement of Defence dated 27 th May, 2022 where they denied the contents in the Amended Plaint.
4. The 4 th Defendant filed his Further Amended Statement of Defence and Counterclaim dated 3 rd February, 2022 where he averred that he acquired the suit parcel from the 5 th Defendant and sought for the following orders:
a) A declaration that THOMAS KIPROP KIRUI the Plaintiff to the Counterclaim/4 th Defendant is the lawful owner of the property comprised in Title Number LR 13287/34 (IR 40236/14).
b) A declaration that the 1 st Defendant to the Counterclaim/Plaintiff can espouse his claim respecting the purported land parcel number Njoro/Ngata Block 27/20 whenever it exists but such a claim should not be laid on the Plaintiff to the Counterclaim/4 th Defendant’s land parcel number LR 13287/34 (IR 40236/14).
c) A declaration that the Plaintiff to the Counterclaim/4 th Defendant’s parcel number LR 13287/34 (IR 40236/14) is not parcel number Njoro/Ngata Block 27/20 if at all the latter parcel exists.
d) A permanent injunction restraining the 1 st Defendant to the Counterclaim/Plaintiff himself, his servants, agents and or any other person acting at the Plaintiff’s behest from interfering with the Plaintiff to the Counterclaim/4 th Defendant’s land parcel number LR 13287/34 (IR 40236/14).
e) That the 1 st Defendant to the Counterclaim/Plaintiff bears the costs of this suit and counterclaim.
PLAINTIFF’S CASE
5. PW1 Omar Mohamed Omar adopted his witness statement dated 25 th August, 2021, as his evidence in chief and testified that he is the owner of L.R No. 13287/34 , which he purchased on 12 th May, 2004 from Francis Bor Changwony at a consideration of Kshs. 12 Million, that he paid through his advocate, Joseph Rioba, which amount Francis Bor acknowledged receipt of in the sale agreement. He stated that he took possession thereof in May 2004, kept animals and planted maize but vacated it on 10 th March, 2021, when goons invaded the property.
6. It was PW1’s evidence that after conducting due diligence, he established that Francis Bor Changwony applied for allocation of 24 acres from the 5 th Defendant, ADC vide a letter dated 13 th February, 1999, which PW1 produced as Pex. No. 8. PW1 further testified that Francis Bor Changwony paid the purchase price of Kshs. 40,720 to ADC for the allocation and was issued with a receipt by Lands Limited, and a transfer was subsequently registered by the 3 rd Defendant conveying the interest from ADC to Francis Bor Changwony culminating in the issuance of a Grant No. IR 47995 dated 7 th July, 1989, which he produced as Pex. No 6.
7. PW1 produced the title dated 10 th March 2020 as Pex No.1 and further produced a certificate of official search dated 12 th February, 2021 which was marked PMFI-2, and photographs at Pages 6 – 8 of the destruction of the gate on the suit property as PMFI-3(a) – (e). PW1 also stated that his advocates wrote a letter to the DCI Nakuru dated 18 th February 2021, which he produced as PExh.4, and a transfer dated 30 th June, 1989 between the 5 th Defendant and Francis Bor Chepkwony for LR No. 1328/34 as PExh.5.
8. PW1 further produced documents in the bundle at pages 53 to 74 as Pex. No. 9 to 16, and testified that at page 24 of the bundle a certificate of title issued to Francis Bor Changwony under entry No. 2, was a transfer to PW1 vide Presentation Book No. 1569 of 24 th August, 2005. He further testified that entry No. 3 was a surrender to the Government of Kenya pursuant to a conversion which entry is dated 15 th October, 2019. He also referred to page 50 of the bundle, a letter of consent between the 5 th Defendant and Francis Bor Changwony dated 12 th June, 1999, and produced as Pex. No. 7.
9. It was PW1’s further testimony that Francis Bor Changwony executed a transfer dated 13 th July, 2004, got a consent from the Nakuru Land Control Board dated 22 nd July, 2004 to transfer L.R No. 13287/34 from Francis Bor to himself and subsequently PW1 was registered by the 3 rd Defendant as the owner of the suit land on 24 th August, 2005 after assessment and payment of stamp duty.
10. According to PW1 , he remained in occupation uninterrupted until 2 nd February, 2021 when the 1 st and 2 nd Defendants tried dispossessing him without any justification, which prompted him to lodge a complaint with the Directorate of Criminal Investigations (DCI) and later filed the current suit where the court granted orders of injunction against the 1 st and 2 nd Defendants but there were threats on his life and that of his workers, which forced him to relinquish possession.
11. PW1 therefore urged the court to grant the orders as prayed in the Amended Plaint with costs.
12. Upon cross-examination by Ms. Shirika, PW1 stated that he had sued the 3 rd Defendant the Chief Land Registrar as he was in a better position to explain what transpired in the transaction as the custodian of land records.
13. Upon further cross-examination by Mr. Murimi, for the 4 th Defendant, PW1 confirmed he bought the suit property on 12 th May, 2004 from Francis Bor Changwony at a consideration of Kshs.12Million. He stated that the search document showed that Francis Changwony was the owner of the suit land.
14. It was PW1’s evidence that he paid the said amount in cash through their lawyer Joseph Rioba, and that the advocate had Kshs.7 million from other transactions but admitted that he did not have the evidence of payment of Kshs.7 Million. PW1 further stated that he paid Kshs.5 million cash in the lawyer’s office but did not have the Bank statement in court. It was his testimony that Mr. Francis Bor Changwony was deceased and that he took possession of the suit land after the sale agreement and vacated on 10 th March, 2021.
15. He further stated that the court order of 19 th May, 2021 showed that the 4 th Defendant was in occupation and that he had surrendered the title for conversion on 15 th October, 2019 and got a new title on 10 th March, 2020.
16. PW1 confirmed that he took possession of the suit property in 2004 but did not seek conversion until 2019, and explained that Francis Bor Changwony (deceased) had been allotted this parcel of land by the 5 th Defendant which held the mother title and had documents in respect of the suit land. PW1 also confirmed that his parcel No. LR No. 13287/34 was a subdivision of the mother title LR No. 13287 with 164 entries in the mother title, and admitted that Francis Bor Changwony (deceased) was not in the entries.
17. PW1 admitted that Entry No. 14 was for the 4 th Defendant parcel No. 13287/34 which was the suit land before conversion and that Entry No. 160 was to John Rotich LR No. 16672/35, and that the transfer referred to survey plan No. 122715 while the certificate of title referred to survey plan No. 139444. PW1 was referred to page 24 of the bundle and stated that there was a charge to KCB on 17 th June, 1991 and a further charge on 15 th April, 1994, second charge on 4 th May, 1995 and discharge of charge on 19 th July, 2012.
18. It was PW1’s further testimony that the 4 th Defendant was compensated for easement in respect of his parcel of land but that he could not confirm that it was the same as LR No. 13287/34. He added that the valuation documents showed that the 4 th Respondent was the owner of the suit land. PW1 also admitted that the 4 th Defendant paid stamp duty on 19 th July, 2012, but could not confirm the authenticity of the documents that he did not have knowledge of. He also stated that he could not confirm the document dated 16 th June, 2021 on the petition against conversion of the titles. PW1 stated that he paid stamp duty when he bought the land but did not have the receipt in court.
19. On cross-examination by Ms. Kyalo for the 1 st and 2 nd Defendants, PW1 stated that he was born on 16 th December, 1975 and that he bought the suit land in 2004 and that there were structures on the suit land when he took possession where he kept animals and planted maize but did not have evidence for the above activities. PW1 stated that the letters from ADC dated 2 nd May, 1989 were authentic. It was PW1’s testimony that he paid the purchase price cash to Advocate Joseph Rioba but did not have the receipts in court. PW1 admitted that he was not in possession of the suit land since he vacated in March 2021, after goons invaded the land.
20. On cross-examination by Mr. Karumpu, PW1 stated that they paid money through Joseph Rioba Advocate who was not a witness in the matter. He added that the land conversion was a process initiated by the Lands office.
21. PW1 admitted that the letter by the 5 th Defendant dated 27 th April, 1989 addressed to Francis Bor Changony did not have the land parcel number and that the letter dated 23 rd May, 1989 from Francis Changony to the Managing Director of the 5 th Defendant showed a Banker’s cheque No. 12404 of Kshs.40,720/= and a receipt by Lands Ltd for Kshs.40,720/=.
22. On re-examination, by Mr. Rapando, PW1 stated that Lands Ltd was an affiliate of the 5 th Defendant and further testified that he conducted a search on the suit parcel but was not able to confirm the authenticity of the entries of the 2 nd Defendant's documents in the mother title.
23. PW1 stated that he had not been shown the actual remittance to the 4 th Defendant, and that the actual survey plan No. was 122715 for title No. 13287/34 having been registered on 17 th July, 1999. PW 1 further stated that he paid the purchase price as shown on the transfer at page 70 of the bundle. PW1 stated that the DCI report dated 27 th August, 2021 found that his documents were genuine, and further that there was no report from the Ministry of Lands that his documents were not genuine.
DEFENCE CASE
24. DW1, (3rd Defendant) Edwin Munoko Wafula, the Land Registrar, adopted his witness statement dated 11 th August, 2021 as his evidence in chief and produced a list of documents dated 11 th August, 2021, as Dex. No. 1. The witness was stood down to bring the parcel file.
25. DW2 (2 nd Defendant) Daniel Kipkirui Ngerechi testified that he had the authority to give evidence on behalf of the 1 st Defendant and adopted his witness statement dated 14 th October, 2022, as his evidence in chief. He also produced his list of documents dated 14 th October, 2022, as Dex. No. 1 to 4.
26. Upon cross-examination by Ms. Shirika, for the 3 rd Defendant, DW2 stated that he had no evidence against the Land Registrar, but stated that the Land Registrar colluded with the Plaintiff. DW2 admitted that he had not written to the Land Registrar regarding the complaint and that the documents were with ADC, who are the custodians. He further stated that the land was allocated to John Rotich but he was not aware of the documents that were used to register John Rotich’s interest.
27. Upon cross-examination by Mr. Murimi, who referred DW2 to a letter dated 6 th June, 1994 from the 5 th Defendant where he stated that John Rotich was allocated the suit land by the 5 th Defendant. He further stated that he was not aware that the 5 th Defendant had issued another title and that the grant No. was 40236/1, LR No. 13287 and that Entry No. 160 was an allotment to John Rotich. He added that LR No. 16672/35 measuring 4.2 hectares was approximately 10 acres.
28. DW2 further stated that the case before the court was for LR No. 13287/34, and that there was no evidence that it was allocated to John Rotich. He stated that Entry No. 14 was a transfer to the 4 th Defendant for LR No. 13287/34 and that the 4 th Defendant has been cultivating maize on the land.
29. It was DW2’s evidence that John Rotich is not in occupation of the suit land as he has a different parcel of land where he resides. DW2 stated that the 1 st Defendant reportedly consented to the offer in a letter dated November 7, 1988. DW2 further pointed to a February 6, 1990, letter from ADC, which allegedly stated the purchase price for the land would be shared later and requested a payment of Kshs. 18,940.00 to start the title paperwork.
30. Upon cross-examination by Mr. Karumpu, DW2 stated that parcel No. 13287/34 was allocated to John Rotich by the 5 th Defendant, but was not privy to any other allocation to the 1 st Defendant. DW2 further stated that he neither knows how the Plaintiff’s and the 4 th Defendant’s claims arose. DW2 further stated that he came across the documents of allotment from the 4 th Defendant and added that John Rotich followed the procedure for allocation of the land.
31. On cross-examination by Mr. Rapando, DW2 sated that he was testifying on behalf of the 1 st Defendant John Rotich vide a power of Attorney which he had not produced in court. He admitted that the 1 st Defendant neither had transfer documents, a title, a consent from the Land Control Board, nor evidence of payment of stamp duty.
32. DW2 further stated that he was only claiming an interest on behalf of the 1 st Defendant, and confirmed that the letter dated 31 st October, 1988, being the purchase document, did not mention any LR No. He also admitted he neither had the original nor a certified copy in court.
33. DW2 stated that he did not have the application for allocation of the parcel by the 1 st Defendant John Rotich who was a Provincial Forest Officer Rift Valley who wrote a letter dated 7 th November, 1988 on a government letterhead but did not mention the suit property. He stated that the letter dated 6 th February, 1990 communicated the purchase of LR No. 13287/34 but failed to mention the purchase price. DW2 admitted that he had not filed any documents to show that Kshs.18,940/= was remitted to ADC, the 5 th Defendant. He stated that John Rotich denied that he swore the replying affidavit on 15 th March, 2021, but that it was sworn by an advocate whom he had not instructed. It was his evidence that he had not lodged any complaint against the lawyer.
34. It was DW2’s testimony that the 5 th Defendant was aware that the 4 th Defendant fraudulently got his name in the allocation register. Further, when DW2 was referred to the letter dated 31 st October, 1988, he stated that the parcel referred to measured 25 acres. DW2 further stated that he neither had any sale agreement between John Rotich and ADC, the 5 th Defendant, nor any payment receipts. He also stated that he was not aware whether John Kibet Rotich had authority to write a letter on behalf of the 5 th Defendant.
35. On re-examination by Ms. Kyalo, he stated that there was an entry in favour of John Rotich, and further that the letter dated 6 th February, 1990, did not have the LR number but referred to the previous letters of allocations and the owner of the suit property was John Rotich.
36. DW3 (3 rd Defendant) Patrick Oyalo stated that he is a businessman but was previously a Police Officer based at the DCI office in Rongai sub-county, Nakuru County. He testified that he conducted investigations over the suit property and produced the Report that was forwarded to the Attorney General vide a letter dated 26 th August, 2020, contained in the 3 rd Defendant’s supplementary list of documents dated 27 th August, 2021. He produced the report as Dexh. No. 1 3 rd Defendant).
37. Upon cross-examination by Ms. Kyalo, he admitted that the report was not dated, but had interviewed the Plaintiff, 4 th Defendant and Fredrick Mutai. He admitted that he had interviewed neither John Bett nor Daniel Kipkirui. He stated that he got the documents from the 5 th Defendant and the records Officer Okinyo.
(Witness stood for further cross-examination.)
38. Mr. Edwin Munoko Wafula was recalled where he adopted his witness statement dated 11 th August, 2021, as his evidence in chief, and testified that the parcel No. in dispute is Njoro/Ngata Block 27/20, whereby the deed file had a copy of the title that was kept in the registry. He explained that Njoro/Ngata Block 27/20, before conversion from RTA to RLA, was IR No. 47995, and the proprietor was the Plaintiff, who surrendered the document.
39. DW1 produced certificate of title as Dex No. 1, the surrender document as Dex No. 2 and the original title as 3 rd Defendant’s Dex No. 3. He also produced a copy of Rent clearance certificate for IR No. 27995 issued to Francis Bor Changwony and dated 13 th July, 2004 as 3 rd Defendant’s Dex No. 4.
40. He further produced a copy of the transfer document dated 13 th July, 2004 in respect of IR No. 47995 from Francis Bor Changwony to the Plaintiff as 3 rd Defendant’s Dex No. 5. He testified that he had the parcel file with the green card in respect of Njoro Ngata Block 27/20 and that the registered owner was the Plaintiff.
41. He stated that Entry No. 1 dated 10 th March, 2020 was to the Government of Kenya, No. 2 to the Plaintiff and No. 3 was the title deed issued, which he produced as 3 rd Defendant’s Dex. No.6. DW1 further produced the transfer document dated 14 th February, 2020 of the suit land from County Government of Nakuru to the Plaintiff and registered on 10 th March, 2020 as 3 rd Defendant’s Dex No.7. He stated that he was not aware of any documents which showed that the land registry had issued the suit land to two different people and produced the forwarding letter addressed to the District Land Registrar dated 6 th March 2020 forwarding the lease document of the suit land as Dex No.8. He also stated that the registered owner of the suit land is the Plaintiff Omar Mohammed Omar.
42. Upon cross-examination by Mr. Karumpu, DW1 stated that the purpose of conversion was to decentralize the land registry as the land was in the Central Registry in Nairobi. He further stated that there is no provision for conversion for purposes of facilitating a fraudulent transaction. It was his evidence that it is the owner of the land who surrendered the original title, and that Francis Bor Changwony was the previous proprietor. He added that the surrendered title was kept in the deed file and that when a parcel had more than 2 titles, they had to investigate.
43. Upon cross-examination by Mr. Murimi, he confirmed that he had never worked at the Nakuru Land Registry and that the deed files were normally kept in the Central Registry, Nairobi. He also stated that he got the said deed file at the Nakuru Land Registry and that the land was initially owned by the 5 th Defendant. It was DW1’s testimony that the original grant was IR 40236 and was in the name of Francis Bor Changwony. He further stated that he was not aware that the 5 th Defendant had produced an original grant IR 40236 which had 164 entries where Francis Bor Changwony’s name did not appear in the entries.
44. DW1 stated that the grant LR 40236/14 and LR 13287/34 were the same, and referred to entry No. 14 which indicated that the allocation was to the 4 th Defendant and not Francis Bor Changwony. He further stated that on 13 th July, 2004, Francis Bor transferred the property for Kshs. 12 million, but he stated that he had not seen any receipt for payment of stamp duty.
45. It was Dw1’s evidence on cross-examination that the deed of surrender was dated 15 th August, 2019, but he was not aware of any complaint of titles being converted from RTA to RLA without their consent. Witness was shown a transfer from the 5 th Defendant to the 4 th Defendant and a copy of the title IR No. 40236/23 in the 4 th Defendant’s name.
46. DW1 stated on cross-examination that the transfer in the mother title was IR 40236/14 and that the 4 th Defendant’s documents were in tandem with the documents held by the 5 th Defendant. He went on to state that in Entry No. 2, the 4 th Defendant changed the suit property to KCB. He explained that it would not have been possible if Francis Bor owned the property since he had a second charge and further charge on 19 th July, 2012.
47. DW1 stated on cross examination that the property was a freehold and therefore rent was not payable for freeholds. He added that Francis obtained a rent clearance certificate and the transfer from county government should be the government of Kenya and not County Government of Nakuru and therefore the document was inconsistent.
48. DW1 was referred to the Petition dated 16 th June, 2021 where he stated that the letters were written to the Cabinet Secretary complaining that there was conversion of their land without their knowledge, but explained that the correspondence file could have shed light and only a person from Land Administration Department would have explained the details in the documents.
49. Upon cross-examination by Ms. Kyalo, DW1 stated that he currently worked at Chuka Land Registry and that had gotten the documents from the Nakuru Land Registry and that he was giving evidence on behalf of the Chief Land Registrar.
50. DW1 state that here was a circukar in the Ministry that if you had recorded a statement in a case, you must finish the case and that he had recorded the statement while working in Nairobi. He also stated that he had never dealt with a conversion, but explained that one had to make an application with a copy of a title and that one could not proceed with conversion if the title did not belong to the applicant. He also stated that the applicant in this case was the Plaintiff and the title was for Francis Bor but that there was entry No. 2 in the Plaintiff’s name. He further stated that he was not aware that there were other parties claiming the suit land.
51. Upon cross-examination by Mr. Rapando, he stated that as at 11 th August, 2021, he worked in the Court section at Ardhi House Nairobi and that his duties were to give instructions to the Attorney General where the Chief Land Registrar had been sued. He was referred to certificate of title in the 4 th Defendant’s name and stated that it was not one of the documents that was referred to him by the Attorney General. He was also referred to paragraph 16 of the defence and counterclaim where he stated that the entry was made in error to the 4 th Defendant.
52. DW1 further stated that the record of the title to the 4 th Defendant Thomas Kirui was not found in the Chief Land Registrar’s records, and explained that in order for a charge to be validly registered there had to be a charge registered similar to a further charge instrument and discharge of charge. DW1 also stated that he had neither been shown a charge instrument nor a further charge and 2 nd further charge instrument. He also stated that one could not register a valid charge without a Land Control Board consent, and could not comment on the entries or the authenticity without having seen the documents.
53. According to DW1, the Kenya Pipeline Company Notice had the details of registered owners are provided but the postal rentals of owner of parcel No 13287/34 was not indicated. It was DW1’s evidence on cross- examination that the purpose of the gazette notice was to inform the public of the intention to acquire, which invited comments from interested parties. Further that a notice is succeeded by an inquiry to establish the genuine owners for purposes of compensation and matters of the inquiry be recorded.
54. DW1 further explained that the final discussion was then to be communicated by way of an award and payment made to the genuine owners. Further that the gazette notice was not conclusive proof of ownership and stated that he had not seen any minutes of inquiry or evidence of an award to Thomas Kirui, the 4 th Defendant.
55. It was DW1’s testimony that the process was to be completed by an excision and that there was no entry for excision by Kenya Pipeline, and added that they had not cited the complaints in the records of the 3 rd Defendant or any determination of the complaint.
56. He stated that a provisional certificate of title was issued on 24 th January, 2007 which is issued if the owner lost a title. He further stated that the 5 th Defendant , ADC, filed a provisional title and not the original.He explained that a deed of indemnity was necessary so that the government was not liable to the information provided, and that the land registry relies on the information given by the Applicant.
57. DW1 also stated that the mother title was in respect of LR No. 13287 in a subdivision and that the titles would run from a series of 13287 and stated that the title could not accommodate LR No. 13287. He stated that Entry No. 163 was in respect of LR No. 16672/8 and 9 while Entry No. 160, 156 and 157 related to a different series. It was his evidence that the series should be the same from the original LR number, and further stated that the entries were not consistent with the way they should be. He stated that leases were prepared in the Land Administration Department.
58. On re-examination, by Ms Shirika, DW1 stated that when the Chief Land Registrar has been sued, they do not require summons to come to court, as they can be called by the Attorney General to come and give evidence. He further stated that at the time he prepared the statement, he was working in the court section – Ardhi House Central Registry and the deed file was still in Nairobi and later transferred to Nakuru as the land had undergone conversion.
59. DW1 also stated that there were two issues since the matter touched on RTA and when the Chief Land Registrar has been sued, an officer from Nairobi had to come to court and not the Land Registrar. He admitted that he had not seen the documents by the Defendants in the parcel file and would not know who is on the ground.
60. DW3, Patrick Oyalo, was recalled for further cross-examination and upon cross-examination by Ms. Kyalo, he stated that he learnt of the present case at the time they were carrying out investigations. It was his evidence that he came to learn about the 1 st and 2 nd Defendants upon receipt of a court order and explained that he sought the assistance of Mr. Wakiaga Advocate but never followed up since the advocate informed him that they would pursue a civil case.
61. He stated that they were given the documents by the original owner the 5 th Defendant who had a duty to allocate the land and there was no reason to dispute that position. He further stated that the people he interviewed did not talk about the 1 st and 2 nd Defendants.
62. Upon cross-examination by Mr. Murimi, DW3 stated that the 1 st owner was the 5 th Defendant, ADC and further stated that he neither investigated the money trail of payment of Kshs.12million by the Plaintiff nor seen any payment receipt for stamp duty. He added that the complaint was by the 4 th Defendant , Thomas Kirui who reported that on 11 th March, 2021 the Plaintiff claimed ownership of the suit land.
63. According to DW3, when he got the documents from the 5 th Defendant and Ministry of Lands, there were no records of the 4 th Defendant, Thomas Kirui, and that he had not been supplied with the information that the 4 th Defendant had been allocated the land.
64. He further stated that the findings were that the Plaintiff bought the land in August 2005 and the documents the 4 th Defendant provided never reflected in the Ministry of Lands file. He also stated that the search supplied was dated 12 th March, 2021 and that the search by the 4 th Defendant was a recent one. He stated that his findings were that the 4 th
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