SALOME MUENI MBAI VERSUS JAMES ONDIEKI MAUA AND ANOTHER

JUDGEMENT

1. The Plaintiff herein filed a Plaint dated 06.03.2017 which was then Amended through the Amended Plaint dated 31.10.2019 against the 1^st and 2^nd Defendants herein seeking for the following Orders; -
2. A declaration that the Plaintiff is the registered owner of Plot No. B-78 Umoja Innercore Section II and is entitled to possession and occupation of the suit property.
3. A declaration that the 1^st Defendant is a trespasser on Plot No. B-78 Umoja Innercore Section II.
4. A declaration that the Title Deed issued to the 1^st Defendant for the Title Number NAIROBI/UMOJA BLOCK 83/14/104 is null and void.
5. A declaration that the Title Deed issued to the 1^st Defendant for the Title Number NAIROBI/UMOJA BLOCK 83/14/104 be cancelled forthwith.
6. An Order that the Title Deed over the Title Number NAIROBI/UMOJA BLOCK 83/14/104 be issued to the Plaintiff forthwith.
7. An eviction order against the 1^st Defendant herein and/or his licensees, servants, agents and/or employees and for the Defendant to forthwith remove all structures erected on the suit property.
8. A permanent injunction restraining the Defendants by themselves, servants, legal representatives, agents or howsoever from trespassing, encroaching, constructing, further constructing or in any other manner interfering with or wasting the Plaintiff’s property being Plot No. B-78 Umoja Innercore Section II situate in Nairobi.
9. General Damages.
10. In the alternative, an Order directed to the Defendant for compensation to the Plaintiff for her investment in obtaining the suit property.
11. Exemplary and aggravated damages.
12. Costs and Interest.
13. Any other relief that this Honourable Court may deem fit.
14. The prayers sought for hereinabove are premised on the following facts and/or grounds; -
15. The Plaintiff states that the property in dispute is one formerly known as PLOT NO. B78 UMOJA INNERCORE SECTION II situate in Nairobi currently registered as title Number NAIROBI/UMOJA BLOCK 83/14/104 (hereinafter referred to as “the suit property”)
16. According to the Plaintiff, the suit property had been allotted to one CONSOLATA WAIRIMU MUKABI who then sold the same to the Plaintiff on the 30.06.2009.
17. Upon purchase of the suit property by the Plaintiff from the person known as CONSOLATA WAIRIMU MUKABI, a Power of Attorney was duly executed by the Vendor in favour of the Plaintiff to enable her deal with the same.
18. Consequently thereafter, the Plaintiff took ownership and/or possession of the suit property and proceeded to comply with the terms and conditions of owning the same including payment of Local Government rates and Ground Rent.
19. However, on or about 11.08.2015, the Plaintiff noticed that some strangers had entered and/or trespassed into the suit property and developed some temporary structures on the same.
20. The Plaintiff therefore wrote a letter dated 15.09.2015 demanding the illegal occupants and/or trespassers to vacate the suit property thereof.
21. Further to that, the Plaintiff also wrote a letter dated 09.09.2015 to the 2^nd Defendant seeking for permission to erect a perimeter fence as well as develop the suit property.
22. Unfortunately, the Plaintiff’s letter dated 15.09.2015 to the alleged strangers and/or trespassers on the suit property was not complied and but instead, the Plaintiff was informed that the suit property actually belongs to the 1^st Defendant.
23. On discovery of this new information, the Plaintiff wrote a second letter dated 08.10.2015 to the 2^nd Defendant informing them of a dispute over the ownership of the suit property herein.
24. Based on the Plaintiff’s letter dated 08.10.2015, the officials from the 2^nd Defendant directed that no developments should take place on the suit property pending an investigation relating to the ownership of the said property through a letter dated 15.10.2015.
25. Nevertheless, the 1^st Defendant dispute being aware of the stop order issued on the 15.10.2015 proceeded to excavate and undertake some construction activities to the detriment of the Plaintiff’s ownership of the suit property.
26. On further investigation by the Plaintiff, it was discovered that the 1^st Defendant had illegally and/or fraudulently processed a Title Deed over the suit property without consent from the Plaintiff and trespassed on the suit property and the particulars of fraud were outlined under Paragraph 20 of the Amended Plaint.
27. The Plaintiff also pleaded Fraud against the 2^nd Defendant who in collusion with the 1^st Defendant processed and/or issued the ownership documents of the suit property to the 1^st Defendant even though the same belonged to the Plaintiff as pleaded under Paragraph 20.
28. In essence, the Plaintiff stated that the registration and/or issuance of the suit property’s title deed to the 1^st Defendant was null and void having been obtained through fraudulent schemes and should therefore be cancelled forthwith.
29. Similarly, the Plaintiff sought for this Court to ensure that the Plaintiff is granted possession and/or occupation of the suit property in line with her ownership rights therein.
30. Both the original Plaint dated 06.03.2017 and the Amended Plaint dated 31.10.2017 were served on the 1^st and 2^nd Defendants.
31. The 1^st Defendant responded through a Statement of Defence dated 19.07.2017 to which they pleaded as follows; -
32. The 1^st Defendant denied the contents of the Plaint’s Plaint dated 06.03.2017 in toto and put the Plaintiff to strict proof thereof.
33. The 1^st Defendant began his defence by pleading that the suit property was initially allotted to one MARY MAGDALENA NJERI who subsequently sold the same to JOSEPH RATEMO MAUA who is a brother to the 1^st Defendant.
34. Based on the fact that the 1^st Defendant was residing in the United States of America, he executed a Power of Attorney in favour of the person known as JOSEPH RATEMO MAUA to deal with the said suit property.
35. The said JOSEPH RATEMO MAUA indeed handled the entire process of procuring the ownership documents and on the 16.05.2001, a Certificate of Lease over the suit property was issued in favour of the JOSEPH RATEMO MAUA.
36. On the return of the 1^st Defendant from the United States of America, the brother known as JOSEPH RATEMO MAUA transferred the ownership of the suit property to him and a second Certificate of Lease was issued on the 01.07.2010.
37. The 1^st Defendant then proceeded to apply for permission to develop the said suit property from the 2^nd Defendant who discussed the said request in their meeting of 28.07.2015 and granted the necessary permission for development.
38. The 1^st Defendant therefore pleaded that the suit property has been developed and there are structures on the ground.
39. The 1^st Defendant further stated that he has complied with all the terms and conditions contained in the Title Documents including payment of rent and rates upto the year 2017.
40. The 1^st Defendant therefore specifically denied the allegation that the suit property belongs to the Plaintiff and/or that he had trespassed into the Plaintiff’s property at all.
41. In conclusion, the 1^st Defendant sought this Court to dismiss the entire suit with costs.
42. The 2^nd Defendant also opposed the Plaintiff’s suit through a Statement of Defence dated 20.03.2017 on the following grounds; -
43. First and foremost, the 2^nd Defendant denied in toto the allegations contained on the Plaintiff’s Plaint dated 06.03.2017.
44. The 2^nd Defendant specifically denied ever allotting the suit property to the Plaintiff herein.
45. The 2^nd Defendant further denied ever demanding and/or collecting any rates payments from the Plaintiff over the suit property as alleged.
46. The 2^nd Defendants also denied ever giving any building permissions to the Plaintiff herein to develop and/or take possession of the suit property as alleged.
47. The 2^nd Defendant categorically denied the fact that the Plaintiff herein wrote and delivered the letter dated 09.09.2015 and insisted that the said letter does not show any acknowledgement of receipt by their offices.
48. The 2^nd Defendant therefore denied the authenticity of the Plaintiff’s documents and put his to strict proof thereof.
49. The 2^nd Defendant sought this Court to dismiss the Plaintiff’s suit against them with costs.
50. From the Court proceedings, there is no evidence of any Response by the Plaintiff to the 1^st and 2^nd Defendant’s Defences thereof.
51. Consequently, the pleadings herein closed with the filing of the 1^st and 2^nd Statements of Defence.

PLAINTIFF’S CASE & EVIDENCE

1. The Plaintiff’s case began with the testimony of the Plaintiff who was marked as PW 1.
2. The Plaintiff introduced herself as a resident of Langata and the Managing Director of a company known as Sidah International Travel.
3. The Plaintiff further informed the Court that she had prepared, filed and served a Witness statement dated 06.03.2017 of which she adopted as her evidence in chief.
4. In addition to the above witness statement, the Plaintiff also produced the following documents; -

PLAINTIFF EXHIBIT 1- A copy of an Agreement For Sale dated 30.06.2009.

PLAINTIFF EXHIBIT 2- A copy of a Power of Attorney dated 30.06.2009.

PLAINTIFF EXHIBIT 3- Copies of receipts of Rates payments and Ground Rent in relation to the suit property.

PLAINTIFF EXHIBIT 4- Copy of a letter dated 13.04.2011 to 2^nd Defendant through its Director of Housing and Urban Development.

PLAINTIFF EXHIBIT 5- Copy of an extract of the Minutes of the Housing Development Committee dated 08.10.2008.

PLAINTIFF EXHIBIT 6- Letter of Allotment of the suit property issued to one CONSOLATA WAIRIMU MUKABI dated 26.11.2008.

PLAINTIFF EXHIBIT 7- Copy of a letter dated 13.04.2011 from the Plaintiff to the 2^nd Defendant applying for s Survey Beacon Certificate.

PLAINTIFF EXHIBIT 8- Copy of a Receipt dated 14.04.2011 for payment of Survey Beacon Certificate.

PLAINTIFF EXHIBIT 9- Copy of a Survey Beacon Certificate dated 27.05.2011.

PLAINTIFF EXHIBIT 10- A copy of an Extract of Minutes from the Housing Development Committee held by the 2^nd Defendant on the 16.11.2011.

PLAINTIFF EXHIBIT 11- A copy of Clearance Certificate numbered as HDD4/12/539 issued on 03.05.2011.

PLAINTIFF EXHIBIT 12- Copy of a Receipt from the Housing Development Department dated 03.05.2011.

PLAINTIFF EXHIBIT 13- Copy of an Acceptance letter dated 17.10.2013.

PLAINTIFF EXHIBIT 14- Copy of a Notice dated 15.08.2014 from the Plaintiff to the trespassers.

PLAINTIFF EXHIBIT 15- Copy of a letter dated 11.08.2015 from the Plaintiff to the 2^nd Defendant.

PLAINTIFF EXHIBIT 16- Copy of a letter dated 08.10.2015 from the Plaintiff to the 2^nd Defendant.

PLAINTIFF EXHIBIT 17- Copy of an Application for Development Permission Serial No. 000694 made in July 2015 together with the payment Receipt thereof.

PLAINTIFF EXHIBIT 18- Copy of an Notification of Approval by the 2^nd Defendant dated 03.08.2015.

PLAINTIFF EXHIBIT 19- Copy of a letter dated 20.11.2015 from the Plaintiff to the 2^nd Defendant.

PLAINTIFF EXHIBIT 20- Copy of a letter dated 15.10.2015 from the 2^nd Defendant to the Plaintiff.

PLAINTIFF EXHIBIT 21- Copy of a Receipt from the 2^nd Defendant dated 31.05.2016.

PLAINTIFF EXHIBIT 22- Copy of a letter dated 10.08.2016 from the 2^nd Defendant to the Plaintiff.

PLAINTIFF EXHIBIT 23- Copies of photographs showing construction by the 1^st Defendant on the suit property.

1. The Plaintiff upon production of the above documents informed the Court that she purchased the suit property from one CONSOLATA NYOKABI through an Agreement For Sale dated 30.06.2009.
2. Upon execution of the Agreement For Sale dated 30.06.2009, the Vendor CONSOLATA WAIRIMU MUKABI executed a Power of Attorney in favour of the Plaintiff to deal with the suit property in her own capacity.
3. The Plaintiff averred that the 2^nd Defendant has been accepting the rates payments of the suit property through its account known as AC27544.
4. The Plaintiff also clarified that before she purchased the suit property, due diligence was undertaken through conducting a search in the 2^nd Defendant’s offices where the Black Book which contains the lawful owners of properties are recorded.
5. The outcome of the search in the 2^nd Defendant’s offices based on the Black Book confirmed that the suit property was allotted to CONSOLATA WAIRIMU MUKABI.
6. The 2^nd Defendant also acknowledged and accepted the Power of Attorney that had been executed by CONSOLATA WAIRIMU MUKABI in favour of the Plaintiff.
7. According to the Plaintiff, the suit property had initially been allotted to someone else but was repossessed by the 2^nd Defendant through the Minutes of 08.10.2008.
8. It was after the repossession of the suit property by the 2^nd Defendant that it was again re-allotted to CONSOLATA WAIRIMU MUKABI on the 26.11.2008.
9. The Plaintiff confirmed that a new Survey Beacon Certificate was issued in her favour on the 27.05.2011.
10. Further to that, the 2^nd Defendant approved the Transfer of the suit property from CONSOLATA WAIRIMU MUKABI to the Plaintiff on the 16.11.2011.
11. On applying to develop the suit property, the Plaintiff was issued with the Clearance Certificate No. HDD4/12/539 and the actual Development Approval was issued on the 17.10.2013.
12. However, when the Plaintiff arrived on the suit property, she found that the suit property had already been occupied and had structures on it.
13. It was at this point that the Plaintiff issued Notices to Vacate to the trespassers of the suit property and further sought help from the 2^nd Defendants to remove the intruders on the suit property.
14. The intruders and/or trespassers informed the Plaintiff that their occupation was with the consent of the 1^st Defendant who was the registered owner of the suit property.
15. The Plaintiff’s prayer to this Court is that the registration of the 1^st Defendant as the legitimate owner of the suit property should be revoked and/or cancelled forthwith.
16. Further to that, the Plaintiff sought for an order to declare all the persons occupying the suit property to be trespassers and be evicted forthwith to enable him take vacant possession and/or occupation of the suit property.
17. The Plaintiff admitted that he had seen a Certificate of Lease dated 16.05.2001 issued first in the name of JOSEPH RATEMO MAUA and thereafter transferred to the 1^st Defendant on the 24.09.2009 and issued with a Certificate of Lease dated 01.07.2010.
18. The Plaintiff was of the view that the Certificate of Lease issued initially to JOSEPH RATEMO MAUA and thereafter in favour of the 1^st Defendant was not in line with the Minutes of the Housing Development Committee by the 2^nd Defendant.
19. The Plaintiff confirmed that the suit property was initially allotted to MARY MAGDALENE who then transferred it to one J ONDIEKI.
20. When the person J ONDIEKI took ownership of the suit property, he was unable to comply with the terms and conditions of the Allotment and the 2^nd Defendant repossessed it from him and allotted it to CONSOLATA WAIRIMU MUKABI who then sold the same to the Plaintiff.
21. Consequently, the Plaintiff’s closing remarks were that the Minutes of the Housing Development Committee reflected the true position of the ownership to the suit property.
22. On cross-examination by the 1^st Defendant, the Plaintiff confirmed that the first Allottee of the suit property was one MARY MAGDALENE although the Minutes produced before the Court referred to one J ONDIEKI.
23. The Plaintiff admitted that she purchased the suit property from CONSOLATA WAIRIMU MUKABI in the year 2009 based on the Letter of Allotment which had been issued in her name.
24. The Plaintiff accepted that she had seen a Certificate of Lease dated 16.05.2001 in favour of JOSEPH RATEMO MAUA over the suit property.
25. The Plaintiff confirmed that there was an entry on the Registration Presentation Book from the 2^nd Defendant showing that the registration of the Lease to the property known as NAIROBI/BLOCK 83/14/104 formerly UMOJA INNERCORE SECTOR II-B 78.
26. On being referred to the PLAINTIFF’S EXHIBIT 6- the Plaintiff could not verify the validity of the Certificate of Lease that had been issued.
27. However, the Plaintiff stated that according to him, the Letter of Allotment issued to CONSOLATA WAIRIMU MUKABI was the legitimate ownership document.
28. The Plaintiff reiterated that she had undertaken a search in the 2^nd Defendant’s offices on the true owner of the suit property before she purchased the same but had not produced the said search before the Court.
29. On being referred on PLAINTIFF’S EXHIBIT 5, the Plaintiff stated that according to the documents, the suit property was repossessed from one J ONDIEKI but at the time of repossession, there was a Certificate of Lease that had been issued to one JOSEPH RATEMO MAUA in the year 2001.
30. The Minutes that show the repossession of the suit property from J ONDIEKI are for the year 2008.
31. The Plaintiff informed the Court that when she purchased the suit property, it was vacant with only one structure which had been built by someone she had authorised.
32. In the Plaintiff’s view, the Certificate of Lease issued to the 1^st Defendant was not genuine because it does not reflect the Minutes of the 2^nd Defendant and therefore cannot create ownership in favour of the 1^st Defendant.
33. The Plaintiff insisted that even the description of the suit property at the 2^nd Defendant’s offices was in still the original number PLOT NO. B-78 UMOJA INNERCORE SECTION II and does not reflect the registered number known as NAIROBI/UMOJA BLOCK 83/14/104 as contained in the Certificate of Lease issued to the 1^st Defendant.
34. The Plaintiff averred that she has not been issued with a Certificate of Lease yet by the 2^nd Defendant but the process is still on going.
35. The 2^nd Defendant did not have any questions to cross-examine the Plaintiff herein.
36. On re-examination, the Plaintiff confirmed that the description of the suit property in the Letter of Allotment issued to CONSOLATA WAIRIMU MUKABI is the same as that contained in the Certificate of Lease issued to the 1^st Defendant.
37. On being referred to the PLAINTIFF’S EXHIBIT 5- the Plaintiff reiterated that the Minutes show the repossession of the suit property and the re-allotment of the same to CONSOLATA WAIRIMY MUKABI.
38. The Plaintiff stated that she had being paying all the Rates and any other charges that are required for the processing of her Certificate of Lease.
39. The Plaintiff referred to the Receipt No. MS1411-07821 dated 13.11.2014 of KShs 30,000/- as proof of these payments.
40. The Plaintiff averred that when an official search is done of the suit property at the Ministry of Lands, the results are that the same is registered in the name of the 1^st Defendant.
41. On the other hand, when a search is done before the 2^nd Defendant, the same suit property is recorded in the name of the Plaintiff.
42. At the end of this re-examination, the Plaintiff’s Counsel closed her case thereof.

1^ST DEFENDANT’S CASE & EVIDENCE

1. The 1^st Defendant case began with the testimony of the 1^st Defendant who was marked as DW 1.
2. The 1^st Defendant informed the Court that he is a resident of the United States of America.
3. The 1^st Defendant stated that he was in court to testify on the ownership of the suit property herein.
4. The 1^st Defendant confirmed to the Court that he had recorded a witness statement dated 19.07.2017 of which he adopted the same as his evidence in chief.
5. The 1^st Defendant in support of the witness statement dated 19.07.2017 produced the following documents; -

DW 1 EXHIBIT 1- A COPY OF AN AGREEMENT FOR SALE DATED 12.10.1993.

DW 1 EXHIBIT 2- COPY OF A LEASE AGREEMENT REGISTERED ON 16.05.2001.

DW 1 EXHIBIT 3- COPY OF THE CERTIFICATE OF LEASE DATED 16.05.2001 IN FAVOUR OF JOSEPH RATEMO MAUA.

DW 1 EXHIBIT 4- COPY OF THE TRANSFER OF LEASE REGISTERED ON 01.07.2010.

DW 1 EXHIBIT 5- COPY OF A CERTIFICATE OF LEASE DATED 01.07.2010 IN FAVOUR OF THE 1^ST DEFENDANT.

DW 1 EXHIBIT 6(A)(B) &(C)- COPIES OF THE APPLICATION FOR DEVELOPMENT PERMISSION DATED JULY 2015 FROM THE 2^ND DEFENDANT TOGETHER WITH THE RECEIPTS DATED 07.07.2015.

DW 1 EXHIBIT 7 (A)(B)&(C)-  COPY OF NOTIFICATION OF APPROVAL OF DEVELOPMENT PERMIT DATED 03.08.2015 TOGETHER WITH A RECEIPT OF KSHS 9,350/- AND RECEIPT DATED 28.02.2017.

DW 1 EXHIBIT 8- COPY OF APPLICATION FOR SEWER CONNECTION DATED 13.03.2017 AND ITS RECEIPT DATED 14.03.2017.

1. The Plaintiff reiterated that he purchased the suit property in the year 1993 through his brother JOSEPH RATEMO MAUA because he was in the United States of America.
2. Upon purchase of the suit property, the initial Certificate of Lease was issued in the year 2001 in the name of his brother JOSEPH RATEMO MAUA and took possession thereof by constructing some temporary structures which were then leased out.
3. In the year 2010, the suit property was transferred from JOSEPH RATEMO MAUA to the name of the 1^st Defendant thereof.
4. In the year 2015, the 1^st Defendant applied for permission to develop the same from the 2^nd Defendant which application was approved.
5. Consequently, in the year 2016, the 1^st Defendant began construction and completed the same in the year 2022.
6. The 1^st Defendant also confirmed that the suit property is duly connected to the 2^nd Defendant’s sewerage having duly applied for connection and granted the necessary consent.
7. The 1^st Defendant averred that throughout his ownership of the suit property, he had paid all the statutory levies and charges that are due to the 2^nd Defendant herein.
8. The 1^st Defendant’s prayer to this Court was for the present suit to be dismissed with costs.
9. In conclusion of his evidence in chief, the 1^st Defendant informed the Court that he had never received any communication about cancellation of his Certificate of Lease from the 2^nd Defendant and/or any other Government department.
10. On cross-examination by the 1^st Defendant’s Counsel, the 1^st Defendant reiterated that he was initially resident in the United States of America but has since relocated to Nairobi, Kenya.
11. The 1^st Defendant informed the Court that he had purchased the suit property way back in the year 1993 from one MARY MAGDALENE NJERI.
12. The 1^st Defendant confirmed presenting the Agreement For Sale but had not presented any Letter of Allotment to confirm that the said MARY MAGDALENE NJERI was the owner of the suit property.
13. The 1^st Defendant could not also confirm whether or not MARY MAGDALENE NJERI had paid all the relevant rates and/or statutory levies to the 2^nd Defendant.
14. The 1^st Defendant averred that he was not given any Power of Attorney by MARY MAGDALENE NJERI to enable him deal with the suit property as the new owner.
15. However, the 1^st Defendant insisted that upon purchasing the suit property, he continued to pay the Rates and/or statutory levies due to the 2^nd Defendant without fail.
16. The 1^st Defendant averred that most of these payments were done through his brother who was resident in Kenya at that time.
17. The 1^st Defendant testified that he has never received any communication from the 2^nd Defendant that he has defaulted in making any statutory payments as required in the Lease.
18. On being referred to PLAINTIFF’S EXHIBIT 8- the 1^st Defendant stated that the document refers to one J ONDIEKI who is alleged to have an outstanding amount of KShs 16,900/- due to the 2^nd Defendant.
19. The 1^st Defendant further denied any knowledge that the suit property had been repossessed by the 2^nd Defendant and re-allotted to anyone else.
20. The 1^st Defendant confirmed that the letter dated 26.11.2008 was allotting the same suit property.
21. However, the 1^st Defendant indicated that at the time when the letter dated 26.11.2008 was done, the suit property had already been issued with a Certificate of Lease in the name of JOSEPH RATEMO MAUA.
22. The 1^st Defendant informed the Court that the Lease Agreement over the suit property was initially done in the year 2001 with NAIROBI CITY COUNCIL.
23. The 1^st Defendant admitted that he was not aware that in the year 2001, the entity that was in operation was CITY COUNCIL OF NAIROBI and not NAIROBI CITY COUNCIL.
24. The 1^st Defendant stated that he had given his brother JOSEPH RATEMO MAUA Power of Attorney although the same had not been registered.
25. The 1^st Defendant confirmed that the Power of Attorney between himself and his brother had been duly executed although he could not state who signed it first.
26. The 1^st Defendant averred that the original Lease was issued in the name of JOSEPH RATEMO MAUA because those were his instructions to the lawyers.
27. The 1^st Defendant on being referred to DW 1 EXHIBIT 3 stated that the Transfer indicated a consideration of KShs 500,000/-.
28. However, the 1^st Defendant could not confirm is any stamp duty was paid on the Transfer.
29. The 1^st Defendant denied any knowledge that the suit property had ever been repossessed by the 2^nd Defendant herein because at that time, he already and the Lease Agreement as well as the Certificate of Lease in his favour in the year 2001.
30. The 1^st Defendant referred to DW 1 EXHIBIT 2 which was a Lease Agreement dated 16.05.2001.
31. The 1^st Defendant therefore denied the allegations that the suit property had been repossessed in the year 2008 and now should be the property of the Plaintiff herein.
32. On cross-examination by the 2^nd Defendant, the 1^st Defendant confirmed that all due diligence was made before the same suit property was purchased.
33. The 1^st Defendant informed the Court that the first person to visit the suit property was his brother JOSEPH RATEMO MAUA.
34. the 1^st Defendant averred that he had purchased the suit property for a sum of KShs 180,000/- but failed to produce any receipts for the same.
35. The 1^st Defendant also reiterated that he had done a search on the suit property way back in the year 1993 before purchasing the same but did not have the said search before the Court.
36. The 1^st Defendant insisted that he mostly relied on the documents presented to his brother and himself by the Vendor.
37. The 1^st Defendant averred that he periodically undertakes searches on the suit property although he did not present the same before the Court.
38. The 1^st Defendant informed the Court that before he started construction, he applied for Change of User and there was no objection.
39. The 1^st Defendant then referred to DW 1 EXHIBIT 6 to confirm that the relevant Change of User on the suit property was applied for and issued by the 2^nd Defendant.
40. On being referred to DW 1 EXHIBIT 2, the 1^st Defendant reiterated that the parties in the Lease Agreement was between the 2^nd Defendant and his brother JOSEPH RATEMO MAUA who signed on his behalf.
41. The 1^st Defendant confirmed that the front page of the Lease Agreement describes the 2^nd Defendant as NAIROBI CITY COUNCIL.
42. The 1^st Defendant could not confirm whether or not NAIROBI CITY COUNCIL existed or not.
43. The 1^st Defendant insisted that the person known as JOSEPH RATEMO MAUA was his brother and had a Power of Attorney to represent him although the same had not been represented before the Court.
44. On being referred to DW 1 EXHIBIT 3- the 1^st Defendant averred that the Lease was in the name of JOSEPH RATEMO MAUA as a person because he was the one that had elected his brother to be registered on his behalf.
45. The 1^st Defendant admitted that he had no Lease Agreement in his own name with the 2^nd Defendant herein.
46. The 1^st Defendant indicated that the suit property was transferred to him by his brother JOSEPH RATEMO MAUA in the year 2010.
47. The 1^st Defendant averred that the consideration indicated on the Transfer Form was KShs 500,000/- although he did not produce the payment receipt of the stamp duty thereof.
48. The 1^st Defendant nevertheless pointed out to the Court that the Transfer Form had been affixed with the relevant Stamps confirming payment of Stamp Duty.
49. The 1^st Defendant confirmed that he had read the 2^nd Defendant’s Statement of Defence and denied the fact that the 2^nd Defendants had denied the validity of his documents.
50. On re-examination, the 1^st Defendant was referred DW 1 EXHIBIT 2 which he confirmed that the party executing the Lease Agreement was known as CITY COUNCIL OF NAIROBI.
51. The 1^st Defendant stated that at the time of executing the initial Lease Agreement, he had no objection for the same to be in the name of his brother JOSEPH RATEMO MAUA.
52. The 1^st Defendant also reiterated that at the time the suit property was alleged to be repossessed in the year 2008, there was already a Certificate of Lease in the name of JOSEPH RATEMO MAUA.
53. Similarly, the 1^st Defendant denied knowledge of any process or notice of repossession by the 2^nd Defendant regarding the suit property.
54. The 1^st Defendant informed the Court that the Transfer form from JOSEPH RATEMO MAUA to the 1^st Defendant was presented to the Lands Department and duly registered in his favour in the year 2010.
55. The 1^st Defendant reiterated that he purchased the suit property from MARY MAGDALENE and not allotted by the 2^nd Defendant.
56. The 1^st Defendant insisted that the suit property has never had any arrears or the 2^nd Defendant has never informed him that he was in arrears of any charges.
57. At the end of this re-examination, the 1^st Defendant was discharged from the witness box thereof.
58. The 1^st Defendant’s second witness was one JOSEPH RATEMO MAUA who was marked as DW 2.
59. DW 2 introduced himself as a resident of Nairobi County and that the 1^st Defendant was his younger brother.
60. DW 2 informed the Court that he had prepared and filed a witness statement dated 19.07.2017 of which he adopted as his evidence in chief.
61. According to DW 2, the suit property herein belongs to the 1^st Defendant herein.
62. DW 2 stated that the suit property was initially bought in his name in the year 1993 and in the year 2001, it was issued with a Certificate of Lease bearing the name JOSEPH RATEMO MAUA.
63. DW 2 informed the Court that the suit property was bought and registered in his name because he was acting on behalf of the 1^st Defendant who was not in the Country.
64. However, in the year 2010, the suit property was transferred to the 1^st Defendant and a Certificate of Lease in the name of the 1^st Defendant was issued in the year 2010.
65. DW 2 averred that at the time he was executing the Lease Agreement with the 2^nd Defendant and/or being issued with the Certificate of Lease, there was no allegation that the same belongs to the Plaintiff herein.
66. DW 2 insisted that even during the Transfer of the Lease from himself to the 1^st Defendant, the 2^nd Defendant ratified the same and it did not indicate any dispute as to the ownership of the suit property.
67. DW 2 informed the Court that he had gone through the Statement of the Plaintiff.
68. Nevertheless, DW 2 denied any knowledge of the fact that the suit property had been repossessed by the 2^nd Defendant.
69. DW 2 insisted that by the year 2008, the suit property was already titled in his name and a Certificate of Lease issued hence could not be available for repossession and allotment without following the due process.
70. DW 2 admitted that he is familiar with the Plaintiff herein as they had met in the Assistant Commissioner’s Office over the ownership dispute.
71. DW 2 averred that this was the time the Plaintiff had issued a Letter of Eviction and served it on the persons who had rented the temporary structures on the suit property.
72. DW 2 concluded his evidence by stating that the suit property had never had any arrears as alleged by the 2^nd Defendant.
73. On cross-examination by the Plaintiff, DW 2 reiterated that the suit property was purchased from one MARY MAGDALENE NJERI way back in 1993.
74. Upon visiting the suit property in or about 1992, DW 2 informed the Court that he purchased the same on behalf of the 1^st Defendant.
75. DW 2 averred that the 1^st Defendant had given him a Power of Attorney to transact on his behalf which was deposited with the Advocates on record.
76. DW 2 confirmed that at the time of purchasing the suit property, all the rent due to the 2^nd Defendant were cleared and issued with the necessary receipts.
77. On being referred to PLAINTIFF EXHIBIT 5- DW 2 accepted that it was the same property as the suit property.
78. DW 2 admitted that according to PLAINTIFF’S EXHIBIT 5- the suit property had an arrears of KShs 16,900/- outstanding.
79. However, DW 2 denied knowledge of the alleged outstanding arrears and further stated that the same has never been demanded from him.
80. DW 2 reiterated that the Certificate of Lease of the suit property was first issued in the year 2001.
81. On being referred to DW 1 EXHIBIT 2- DW 2 confirmed that the Lease Agreement was issued by NAIROBI CITY COUNCIL although he could not confirm if this particular name existed or not.
82. As regards DW 1 EXHIBIT 3, DW 2 affirmed that the Lease Agreement and Certificate of Lease issued in the year 2001 was in his name but on behalf of the 1^st Defendant.
83. Consequently, when the 1^st Defendant relocated back to Kenya, DW 2 duly transferred the same to the name of the 1^st Defendant.
84. DW 2 reiterated that the Transfer of Lease from DW 2 to the 1^st Defendant was dated 24.09.2009 and registered on the 01.07.2010.
85. DW 2 averred that the consideration in the Transfer Form was indicated as KShs 500,000/- upon which stamp duty was paid and the necessary stamps affixed to confirm payment.
86. In essence, DW 2 informed the Court that all the documents produced by the 1^st Defendant were valid and issued by the 2^nd Defendant.
87. DW 2 denied the allegation that the suit property was ever repossessed and/or allocated to one CONSOLATA WAIRIMU MUKABI and thereafter sold to the Plaintiff herein.
88. On cross-examination by the 2^nd Defendant, DW 2 reiterated that he had undertaken proper due diligence before purchasing the suit property from MARY MAGDALENE NJERI.
89. In addition to the above, DW 2 confirmed that he visited the suit property way back in the year 1993.
90. DW 2 also informed the Court that he was issued with a Beacon Certificate of the suit property although he did not produce the same.
91. Lastly, DW 2 reiterated that he was the duly appointed Attorney of the 1^st Defendant although he did not produce any registered Power of Attorney to that end.
92. On re-examination, DW 2 referred to DW 2 EXHIBIT 2 & 3 and indicated that the documents therein were duly executed and stamped by CITY COUNCIL OF NAIROBI.
93. As regards DW 2Exhibit 4, the Transfer from DW 2 to 1^st Defendant was duly registered on the 10.07.2010.
94. DW 2 denied being aware or notified of the repossession relating to the suit property by the 2^nd Defendant.
95. Further to that, DW 2 denied any knowledge that the suit property had been allotted to CONSOLATA WAIRIMU MUKABI by the 2^nd Defendant.
96. DW 2 confirmed that at the time the suit property was said to have been repossessed by the 2^nd Defendant, the same already had a Certificate of Lease in his name.
97. DW 2 averred that both the Lease Agreement and the Certificate of Lease have never been recalled by the 2^nd Defendant and/or challenged in a Court of law.
98. In concluding his re-examination, DW 2 reiterated that the suit property does not have any rent arrears and/or has any demand made by the 2^nd Defendant which the 1^st Defendant declined to settle.
99. At the end of this re-examination, DW 2 was duly discharged from the witness box and the 1^st Defendant closed its case.
100. The Plaintiff after the close of the Defendants case made an application for the testimony of an expert witness from the 2^nd Defendant’s office to make comments on the various documents produced by the parties herein.
101. The Plaintiff applied witness summons for one CECILIA WANGARI KOIGU to come and give her comments on the documents produced in Court issued by the parties herein.
102. On the 29.05.2024, the Expert witness known as CECILIA WANGARI KOIGU attended Court and  gave her expert opinion thereof.
103. The Expert witness introduced herself as the Chief Officer in the Department of Lands at the 2^nd Defendant offices.
104. The Expert witness informed the Court that she was a Surveyor by profession and well versed with the land issues within Nairobi County.
105. The Expert witness stated that she had prepared a number of documents relating to the suit property that would assist the determination of the issues in this suit.
106. The Expert witness that produced the following documents before the Court;-

EXPERT WITNESS EXHIBIT 1 - A copy of an Internal Memo dated March 2024 from the Chief Officer, Lands Department to the County Solicitor.

EXPERT WITNESS EXHIBIT 2- A copy of a Letter dated 25.08.1978 from the 2^nd Defendant to MARY BJERI SAMUEL.

EXPERT WITNESS EXHIBIT 3- A copy of an Extract of the Minutes of the Housing Development Committee dated 08.10.2008.

EXPERT WITNESS EXHIBIT 4- A copy of a letter dated 26.11.2008 from the 2^nd Defendant to one CONSOLATA WAIRIMU MUKABI.

EXPERT WITNESS EXHIBIT 5- A copy of a letter dated 26.11.2008 from the 2^nd Defendant to one MERCYLINE A. OCHOLI.

EXPERT WITNESS EXHIBIT 6- A copy of a letter dated 17.09.2009 from the Plaintiff to the Director of Housing Development.

EXPERT WITNESS EXHIBIT 7- Copies of the Minutes of the Housing Development Committee dated 16.11.2011.

1. The Expert witness then informed the Court that these are the only documents available in the 2^nd Defendant’s offices relating to the suit property.
2. At the end of the Expert witness’s evidence, the Court directed parties to prepare, file and serve their final submissions in support of their cases.
3. The Plaintiff filed her final submissions dated 15.07.2024, the 1^st Defendant filed his final submissions dated 12.08.2024 and the 2^nd Defendant filed their final submissions dated 28.06.2024.
4. The Court has carefully gone through the pleadings filed by the parties, the testimonies of the witnesses, the documentary evidence adduced by the parties and the final submissions and identifies the issues for determination as follows; -

ISSUE NO. 1- WHETHER THE PLAINTIFF HEREIN IS THE LAWFUL OWNER OF THE SUIT PROPERTY HEREIN OR NOT?

ISSUE NO. 2- WHETHER THE 1^ST DEFENDANT’S CERTIFICATE OF LEASE IS LAWFUL OR NOT?

ISSUE NO. 3- WHETHER THE 1^ST DEFENDANT’S OCCUPATION ON THE SUIT PROPERTY IS LAWFUL OR NOT?

ISSUE NO. 4- WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT?

ISSUE NO. 5- WHO BEARS THE COSTS OF THIS SUIT?

1. The court having identified the above issues for determination, the same shall be discussed as herein below; -

ISSUE NO. 1- WHETHER THE PLAINTIFF HEREIN IS THE LAWFUL OWNER OF THE SUIT PROPERTY HEREIN OR NOT?

1. According to the Plaintiff’s Amended Plaint, the Plaintiff claims ownership of the suit property on the strength of three crucial documents namely: the letter of allotment issued to one CONSOLATA WAIRIMU MUKABI by the 2^nd Defendant on the 26.11.2008, a Sale Agreement dated 30.06.2009 and a Power of Attorney executed between CONSOLATA WAIRIMU MUKABI and the Plaintiff dated 30.06.2009.
2. The Plaintiff has also supported his ownership of the suit property through a number of documents which include minutes from the Housing Development Committee and a beacon certificate issued on the 27.05.2011 by the 2^nd Defendant as well as rent payment receipts of the suit property.
3. On the other hand, the 1^st Defendant also pleaded that the suit property was registered in his name in the year 2010 through a Transfer of Lease dated 01.06.2010 from one JOSEPH RATEMO MAUA who was his brother and a certificate of lease issued in his name on the 01.07.2010.
4. The 1^st Defendant also pleaded that the suit property was initially allotted to one MARY MAGDALENE NJERI who then sold it to her brother JOSEPH RATEMO MAUA on the 12.10.1993 and a certificate of lease issued in the name of her brother on the 16.05.2001.
5. In essence, the 1^st Defendant pleaded that the suit property was never available for repossession and re-allotment by the 2^nd Defendant in the year 2008 capable of giving any ownership rights to the said CONSOLATA WAIRIMU MUKABI who then passed it to the Plaintiff herein.
6. The 2^nd Defendant did not call a witness to confirm who the legitimate owner of the suit property was between the Plaintiff and the 1^st Defendant.
7. However, the Plaintiff herein applied for witness summons for the Chief Officer in the Lands Department of the 2^nd Defendant to present the documents relating to the suit property and assist the Court in determining this issue.
8. Indeed, the Chief Officer in-charge of the Lands Department in the 2^nd Defendant offices attended court in 29.05.2024 and produced a total of seven exhibits which she said were the only documents in the records of the 2^nd Defendant.
9. To be able to ascertain the ownership and/or the legitimacy of the Plaintiff’s ownership, the court has no choice but to look back at the history and legitimacy of the previous ownership.
10. According to the Plaintiff, it is clear and not in dispute that she purchased the suit property from one CONSOLATA WAIRIMU MUKABI based on the Agreement of Sale dated 30.06.2009.
11. The question then is whether CONSOLATA WAIRIMU MUKABI was a legitimate and lawful owner of the suit property as at the time she sold the suit property to the Plaintiff.
12. The ownership of CONSOLATA WAIRIMU MUKABI emanates from the minutes of the Housing Development Committee of 08.10.2008 which repossessed the suit property from one J. ONDIEKI for defaulting to pay KShs.16,900/=.
13. However, according to the Expert Witness’s bundle of documents, the suit property had actually been allocated to one MARY NJERI SAMUEL on 25.08.1978 and a copy of the said allocation was tabled before this court.
14. The Plaintiff on the presentation of the Letter of Allotment to MARY NJERI SAMUEL confirming the allotment of the suit property on the 25.10.1978 did not challenge the validity of this document.
15. This Court therefore makes a finding that the original allottee of the suit property was on MARY NJERI SAMUEL from 25.08.1978.
16. The Plaintiff and/or the 2^nd Defendant was under a legal obligation under Section 107 of the Evidence Act, Cap 107 to demonstrate how ownership of the suit property passed on from one MARY NJERI SAMUEL who was allocated the same on 25.08.1978 up to when CONSOLATA WAIRIMU MUKABI took lawful ownership of the same in 2008.
17. Unfortunately, the Plaintiff only presented a portion of the ownership record starting in the year 2008.
18. The effect of presenting an incomplete background of the ownership record creates a doubt as to the manner and procedure in which the person called CONSOLATA WAIRIMU MUKABI acquired her legal rights.
19. According to the Plaintiff’s evidence contained in the Housing and Development Committee minutes of 08.10.2008, the 2^nd Defendant is repossessed the suit property from one J. ONDIEKI who is alleged to have been the owner of the same.
20. The ownership of J. ONDIEKI has not been proved by the Plaintiff or the 2^nd Defendant through the Expert Witness by way of a Letter of Allotment and/or any Agreement For Sale from a legitimate owner giving him any legal rights over the suit property.
21. To make matters worse, according to the Expert Witness, after the repossession of the suit property by the Housing Development Committee of 08.10.2008, the Expert Witness Exhibits 5 and 6 show two Letters of Allotment in the name of CONSOLATA WAIRIMU MUKABI and MERCYLYNE A. ACHOLI dated 26.11.2008 from the 2^nd Defendant.
22. The 2^nd Defendant did not give any explanation or clarify the circumstances in which the Letter of Allotment issued to MARY NJERI SAMUEL in the year 1978 was ever withdrawn or terminated.
23. Looking at the above scenario, it is clear in the mind of this court that the 2^nd Defendant has failed to keep a proper and accurate record of the ownership relating to the suit property thereby creating confusion and allowing persons whose ownership cannot be ascertained to gain access and/or be issued with Letters of Allotment contrary to laid down procedures and/or compliance with the statutory provisions of the law.
24. As regards the Plaintiff, this court makes a finding that the Letter of Allotment issued on the 26.11.2028 to one CONSOLATA WAIRIMU MUKABI could not possibly pass any legal rights therein.
25. There is no proof tabled by the Plaintiff or the 2^nd Defendant that the purported person known as J. ONDIEKI who is alleged to have been the owner of the suit property as at 08.10.2008 had actually acquired any lawful rights and obligations which could be breached and thereby give the Housing Development Committee powers the rights to repossess the suit property.
26. This court therefore, makes a finding that the Letter of Allotment issued to CONSOLATA WAIRIMU MUKABI on the 26.11.2008 by the 2^nd Defendant over the suit property was irregular, unlawful and incapable of passing any legal rights to the said CONSOLATA WAIRIMU MUKABI and by extension the Plaintiff herein through the Agreement For Sale and Power of Attorney both dated 30.06.2009.

ISSUE NO. 2- WHETHER THE 1^ST DEFENDANT’S CERTIFICATE OF LEASE IS LAWFUL OR NOT?

1. The Plaintiff in the Amended Plaint challenged the legality of the Certificate of Lease currently being held by the 1^st Defendant relating to the suit property.
2. The Plaintiff in paragraph 20 of her Amended Plaint pleaded particulars of fraud perpetuated by the 1^st Defendant.
3. The particulars of fraud pleaded by the Plaintiff against the 1^st Defendant were two namely; purporting to acquire the property without the Plaintiff’s consent despite it being unavailable for acquisition and initiating an illegal and irregular process of processing a title deed for the suit property.
4. On the other hand, the 1^st Defendant through his Statement of Defence pleaded that the Certificate of Lease he currently holds is legitimate and lawful having been issued regularly and in line with the laid down procedure.
5. During the hearing, the Plaintiff attacked the 1^st Defendant Certificate of Lease originally issued to JOSEPH RATEMO MAUA on the 16.01.2001 and thereafter transferred to the 1^st Defendant and a second Certificate of Lease issued on 01.07.2010.
6. The Plaintiff testified that the Lease Agreement which was originally executed between JOSEPH RATEMO MAUA and the 2^nd Defendant dated 16.05.2021 was fraudulent because the entity known as NAIROBI CITY COUNCIL was non-existent and secondly the person known as JAMES ONDIEKI MAUA actually never signed the purported Lease Agreement as required by Law.
7. Secondly, the Plaintiff further testified that the Transfer of Lease from JOSEPH RATEMO MAUA to the 1^st Defendant was not properly executed and the necessary statutory payment made to enable the property legally vest in the name of the 1^st Defendant.
8. The 1^st Defendant in response to the above allegation stated that JOSEPH RATEMO MAUA was his brother whom he had authorized to transact on his behalf for the reason that he was a resident of the United States of America.
9. It is on the basis of this understanding that JOSEPH RATEMO MAUA executed the Agreement of Sale dated 12.10.1993 with one MARY MAGDALENE NJERI for the purchase of the suit property.
10. Upon successfully purchasing the suit property in the year 1993, the 1^st Defendant’s brother JOSEPH RATEMO MAUA proceeded to procure a lease with the 2^nd Defendant which was dated 16.05.2001 and executed the same.
11. Upon execution of the Lease dated 16.05.2001, the 1^st Defendant’s brother JOSEPH RATEMO MAUA proceeded to have the Lease Agreement registered and was issued with the 1^st Certificate of Lease dated 16.05.2001.
12. Upon the 1^st Defendant return to the country on/or about 2009 and by mutual agreement, the suit property which had been registered in the name of JOSEPH RATEMO MAUA was transferred to his name through the Transfer of Lease dated 01.06.2010.
13. The 1^st Defendant further testified before the court that his ownership of the suit property is well known to the 2^nd Defendant for the reason that he successfully applied for a change of user of the suit property on the 17.07.2015 as well as applied for a development permission on the same date.
14. The 2^nd Defendant upon receipt of these applications and payment of the relevant statutory charges granted permission to the 1^st Defendant to develop the property on 14.08.2015.
15. The 1^st Defendant further produced receipts of rent payment up to 28.02.2017 as well as receipts for connection of water and sewerage facilities on the said property.
16. The 1^st Defendant therefore reiterated that he is the lawful registered owner of the suit property to the exclusion of the Plaintiff.
17. The court has considered the pleadings by the Plaintiff and the 1^st Defendant as well as the documentary evidence produced by the parties in court. 
18. To begin with the 1^st allegation of fraud by the Plaintiff, this court has already made a finding that the Plaintiff herein did not acquire proper and lawful legal rights over the suit property from the CONSOLATA WAIRIMU MUKABI.
19. It therefore goes without saying that the 1^st Defendant or his predecessor in title known as JOSEPH RATEMO MAUA was under no obligation or legal duty to seek any consent from the Plaintiff in processing of Lease agreement appertaining to the suit property from the 2^nd Defendant.
20. As to the second allegation that the Lease Agreement to the suit property procured by JOSEPH RATEMO MAUA and subsequently transferred to the 2^nd Defendant was fraudulent, this court has the following comments to make: -
21. First and foremost, the 2^nd Defendant’s Defence dated 20.03.2021 denies that the Plaintiff herein was ever issued with any letter of allotment and/or received any rent from the Plaintiff.
22. Secondly, the court has indeed looked at the Lease Agreement dated 16.05.2001 which was executed between the 2^nd Defendant, one MARY MAGDALENE NJERI and the 2^nd Defendant’s brother JOSEPH RATEMO MAUA.
23. The first issue of contention raised by the Plaintiff is that the Lease was issued by the NAIROBI CITY COUNCIL which is a non-existent entity instead of the CITY COUNCIL OF NAIROBI.
24. From the perusal of Lease Agreement dated 16.05.2001 it is true that the party appearing on the 1^st page of the Lease is NAIROBI CITY COUNCIL but when you look at the page of execution, the party that executed the Lease was the CITY COUNCIL OF NAIROBI and a seal affixed on it witnessed by the Deputy Mayor and the Town Clerk.
25. The Plaintiff in his pleading as well as his evidence did not call any of the persons who witnessed the scene to dispute the legality of the Lease.
26. This court therefore makes a finding that the Lease Agreement dated 16.05.2001 was duly executed by the CITY COUNCIL OF NAIROBI as is required by the law and the official seal affixed on it with the verification of the Deputy Mayor and the Town Clerk.
27. The second issue of contention is whether the 2^nd Defendant’s brother JOSEPH RATEMO MAUA actually lawfully procured and/or executed the Lease Agreement dated 16.05.2001 from the 2^nd Defendant.
28. The answer to this question again lies on the execution pages of the Lease Agreement dated 16.05.2001.
29. According to the Court interpretation of the execution pages contained in the Lease Agreement dated 16.05.2001, the 2^nd Defendant then known as the CITY COUNCIL OF NAIROBI executed a Lease in favour of MARY MAGDALENE NJERI over the suit property in line with the Letter of Allotment that had been issued in the year 1978.
30. Thereafter, MARY MAGDALENE NJERI assigned the Lease to one JOSEPH RATEMO MAUA as the Legal Attorney of the 1^st Defendant.
31. It is on the basis of the above actions that the Certificate of Lease issued on the 16.05.2001 was in the name of JOSEPH RATEMO MAUA.
32. The Plaintiff cannot therefore succeed in his claim that the Lease Agreement dated 16.05.2001 and the initial Certificate of Lease dated the same day were fraudulent acquired because he requires to first challenge the ownership of MARY MAGDALENE NJERI who was the first person to sign the Lease Agreement relating to suit property with 2^nd Defendant.
33. It is only after the Plaintiff has successfully challenged the ownership of MARY MAGDALENE NJERI that he can also succeed to challenge the ownership of JOSEPH RATEMO MAUA and the 1^st Defendant.
34. This court therefore, makes a finding that the Plaintiff herein has not demonstrated any evidence of fraud by JOSEPH RATEMO MAUA and/or the 1^st Defendant in the process of procuring the Lease Agreement dated 16.05.2001 in relation to the suit property herein.
35. Further to that, the court makes a finding that the 1^st Defendant ownership is indeed recognized to be lawful by the 2^nd Defendant based on the fact that the 2^nd Defendant receives Land Rent from the 1^st Defendant, has connected the 1^st Defendant to its water supply and sewerage facilities and further permitted him to develop the property in accordance to Plans submitted by him and duly approved.

ISSUE NO. 3- WHETHER THE 1^ST DEFENDANT’S OCCUPATION ON THE SUIT PROPERTY IS LAWFUL OR NOT?

1. The third issue for determination is whether the 1^st Defendant occupation or use of the suit property is lawful or not.
2. The Plaintiff pleaded in her Amended Plaint and testified in court that she is the registered owner of the suit property and the 1^st Defendant occupation is therefore unlawful and trespass.
3. The Plaintiff’s prayer was that the 1^st Defendant should be evicted from the suit property forthwith and pay for his illegal development and/or use.
4. However, based on the Court’s finding in issue No. 1 and 2, it is clear that the suit property belongs to the 1^st Defendant and he is lawfully entitled to the use and allowed to develop the same as approved by the 2^nd Defendant.

ISSUE NO. 4- WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO THE PRAYERS SOUGHT IN THE PLAINT

1. As to whether the Plaintiff is entitled to the prayers in the Amended Plaint, this court is of the finding that the Plaintiff is not entitled to the prayers sought in the Amended Plaint based on the findings on issue No. 1, 2 and 3.

ISSUE NO. 5- WHO BEARS THE COSTS OF THIS SUIT?

1. Cost usually follow the events and in this instance the plaintiff has not been successful in prosecuting his case on the 1^st and 2^nd Defendants.
2. Consequently, the Plaintiff is condemned to pay costs of this suit only to the 1^st Defendant.

CONCLUSION

In conclusion, this Court hereby makes the following orders in determination of the Amended Plaint dated 31.10.2019; -

1. THE AMENDED PLAINT DATED 31.10.2019 IS NOT MERITED AND THEREFORE DISMISSED FORTHWITH.
2. THE PLAINTIFF WILL BEAR THE 1^ST DEFENDANT’S COSTS ONLY.

DATED, SIGNED & DELIVERED Virtually in KILGORIS ELC Court on 21^ST OF NOVEMBER 2024.

IN THE PRESENCE OF:

COURT ASSISTANT: MR. NGENO

ADVOCATE FOR THE PLAINTIFF: MR. MUHIA

ADVOCATE FOR THE 1^ST DEFENDANT: MR WAUDO H/B FOR MS KAGOYA

ADVOCATE FOR THE 2^ND DEFENDANT: N/A