the boad of trustees, redeemed gospel church, kisumu VS kisumu municipal council

Vide the amended plaint dated 13^th March, 2023, the Board of Trustees, Redeemed Gospel Church, Kisumu and Jackton Mark Kegohi, the Plaintiffs herein sued the Defendants seeking for the following relief;

1. a declaration that the Plaintiff is the absolute owner of the disputed parcel of land and the 1^st Defendant Municipal Council, the City Manager of the 3^rd Defendant and the 3^rd Defendant and County Government of Kisumu are trespassing.
2. an order compelling the Defendant to approve the Plaintiffs’’ building plans.
3. A permanent injunction restraining the 1^st, 2^nd and 3^rd Defendants, their servants, agents, representative and from sub-dividing, transferring or in any way interfering with land parcel number KISUMU MUNICIPALITY BLOCK 9/145.
4. General damages for malicious damage to property.
5. Costs of the suit.

The Plaintiffs’ case was that at all material times, the Plaintiff was the registered owner of plot No. KISUMU/BLOCK 9/145 (the suit land) herein. That on 12^th January, 2012, the Defendants through their agents moved onto the suit land and embarked on destroying the fence and poured garbage on the plot and turned the land into a dumpsite.

That the Defendants encroached onto the suit land and were busy sub-dividing it without any colour of right. That on 28^th December, 2020, the 2^nd Defendant acting on behalf of the 3^rd Defendant descended on the Plaintiffs’ property and demolished the ECD building, Dining Hall and the kitchen using bulldozers and heavy tractors. That the actions of the 2^nd and 3^rd Defendant were meant to force or evict the Plaintiffs from the suit land. The Plaintiffs therefore sought the court’s intervention.

In reply to the amended plaint, the Defendants filed amended statement of defence and counterclaim dated 25^th October, 2023 denying the Plaintiffs’ claim and claiming that at all material times, the suit land was under the control of the Ministry of Lands and Settlement Department of Physical Planning who were tasked to administer the same on behalf of the Defendants who were the holders of the primary title. That the suit land was reserved for Agricultural Society of Kenya (A.S.K) Showground and hence the acquisition and/or ownership of plot NO. KISUMU/MUNICIPALITY/BLOCK 9/145 by FREDRICK OMONDI OYOO and subsequent transfers were illegal, un-procedural and through a corrupt scheme.

The Defendants therefore sought for orders that;

1. The 3^rd Defendant revokes and/or cancels the 1^st Defendant’s ownership and/or certificate of lease over plot No. KISUMU/MUNICIPALITY/BLOCK 9/145 and the same reverts to the County Government of Kisumu.
2. Vacant possession of plot No. KISUMU/MUNICIPALITY/BLOCK 9/145 and/or an order of eviction against the 1^st and 2^nd Defendants from the above-mentioned plot.
3. Costs of the counter-claim.
4. Interest on (c) above at court rates.
5. Any other relief this honourable court deems fit to grant in circumstances.

The Evidence

The evidence of the plaintiffs comprised of the testimony of David Otieno Owino who adopted the contents of his witness statement dated 28^th September, 2023 as his evidence in chief. He had stated in the witness statement that he was a Pastor with the Redeemed Gospel Church Inc. Kisumu. That the church identified a plot offered for sale by HEKIMWE INVESTMENT LTD. That the Church’s due diligence revealed that the plot had first been allocated to one Fredrick Omondi Oyoo trading as MO DEVELOPERS for purposes of developing a primary and secondary school.

That on 5^th December, 1992, the land was transferred from Fredrick Omondi Oyoo to KEF MILLERS KENYA LTD who was issued with a lease document which was registered on the 26^th November 1993. That KEF MILLERS and HEKIMWE INVESTMENTS LTD had common directors.

That after the church satisfying itself of the genuineness of the ownership status, HEKIMWE INVESTMENTS LTD issued the church with a Letter of Offer dated 13^th June, 2000 after which the church entered into an agreement on the 7^th September, 2000 to purchase the parcel at a cost of Kshs.5,000,000/= so as to develop an educational institution thereon.

That the church submitted its plans to build a school on the parcel of land to the Municipality. That the church received a letter inviting it to a meeting to deliberate over creation of a rear access road to the Municipal Stadium in its neighborhood. That it was agreed that the road be created on a pre-condition that the church be compensated, but that this has not been done.

PW1 testified further that the District Physical Planning Officer vide the letter dated 18^th January, 2007 circulated a print of the proposed Part Development Plan but no action has been taken on it to date.

That on 28^th December, 2020 the Defendants demolished the Plaintiffs’ ECD building, dining hall and the kitchen using bulldozers which resulted in the destruction of many books which action was aimed at frustrating the church and force it or evict it from the suit land.

He stated that the Defendants went as far as depositing garbage on the suit land.

PW1 produced the documents listed in the Plaintiffs’ list of documents dated 13^th March, 2023 as exhibits P.1 to P.40.

On cross-examination and re-examination PW1 stated inter alia that Hellen Njeri Nderu to whom part of the purchase price was paid was one of directors of the seller company. That their application for approval was declined on the basis of the Ndungu report.

That there is a school on the suit land called Bishop Mark Care Centre Academy which was approved by the County Government and has been in existence since 2007. That the people who were demolishing the school property were in County uniforms.

The evidence of the Defence comprised of the testimony of 2 witnesses. DW1 was Michael Abala Wanga, the City Manager, Kisumu County. He adopted the contents of his witness statement dated 25^th October, 2023 as his evidence in chief. He had stated in the witness statement that a 9-meter road separates the suit property and land parcel number No. KISUMU/MUNICIPALITY/BLOCK 9/102 where the Moi Stadium which is under ownership and management of the Defendants is located.

That the two adjacent parcels namely; the suit property and land parcel No. KISUMU/MUNICIPALITY/BLOCK 9/102 are fenced off from each other and cannot be accessed easily without the consent of its respective proprietors and/or custodians.

DW1 stated that neither party have ever damaged and/or torn the fence encircling the suit property for purpose of dumping garbage therein. That the Plaintiffs’ claim boarders a boundary dispute that should first have been addressed by the Land Registrar for investigations and determination before bringing it to court.

That the suit land was illegally, fraudulently and clandestinely acquired by the 1^st Plaintiff. That the documents produced by the Plaintiff are forged.

That documents in the custody of the Defendant and particularly the Part Development Plan indicate that the land was set apart as the location to house the A.S.K. Showground.

On cross-examination, DW1 stated that the people who demolished the school did not have instructions from him. That he was aware that there a church on the suit land.

DW1 produce exhibits namely; Part Development Plan, letter dated 29^th December, 1987, letter dated 5^th November, 1992, transfer form and lease documents.

DW2 was Valentine Oiro, a Surveyor. He referred to the PDP and stated that he did not know how the suit land was allotted to the Plaintiffs. That the land was set aside by National Government with the Local Authority for use by Agricultural Society of Kenya. That Municipal Council gave approval for development on the suit land, subject to conditions attached in the letter.

Submissions

It was submitted on behalf of the Plaintiffs that based on the documents produced, especially the lease documents, the Plaintiffs have proved that they are the registered and absolute owners of the suit land.

That the Plaintiffs are innocent purchasers for value without notice and that their title cannot be ousted except by an order of the court. Counsel relied on inter alias the case of Katende -vs- Haridar & Company Limited [2008] 2 E.A. 173 on the definition of innocent purchaser for value without Notice. Counsel submitted further that at the time the Plaintiffs were registered as owners, the land was vacant and the seller had title which had validly been issued by the Commissioner of Lands. That no contrary evidence was produced to disapprove the Plaintiffs’ evidence.

That the Defendants’ activities and attempts to evict the Plaintiff without court orders amounted to trespass. The Plaintiff prayed for Kshs.30,000,000/= general damages for trespass and malicious damages to property.

Counsel relied among other cases, the case of Park Towers Ltd -vs- John Mithamo Njika & 7 Others [2014]eKLR where it was held that where trespass is proved a party need not prove that he suffered any specific damage or loss so as to be awarded damages .

Counsel submitted that the Plaintiffs were entitled to an order of permanent injunction against the Defendants and an order for approval of the building plans.

Counsel submitted that the counterclaim was incompetent as the Defendant did not pay any court fees on the same. Counsel relied on the provisions of Section 96 of the Civil Procedure Act. Counsel submitted further that there was no leave sought to join the Land Registrar as a party in the counter-claim. That no summons was taken out and no evidence that the Land Registrar was served.

Counsel relied on the case of Karandeep Singh Dhilon & Another -vs- Nteppes Enterprises Ltd & Another (2010)eKLR where a plaint was struck out because no summons had been taken out/served upon the Defendant.

Counsel submitted further that the counterclaim was time barred and further that the claim based on fraud was not proved. Counsel submitted further that the Defendant tried to introduce the issue of the Ndungu report in the trial. That the issue was not pleaded. Counsel urged the court to allow the Plaintiffs’ claim as prayed.

On behalf of the Defendant it was submitted that the counterclaim was not time barred – Counsel relied on the provisions of sections 26 and 42 of the Limitation of Actions Act. That the Defendants discovered that the suit property had been illegally acquired sometime in December 2014. Referring the court to exhibit D.6 Counsel submitted that vide the letter dated 2^nd December 2014, the Defendants declined the Plaintiffs’ application for development of the property because the land had been included in the Ndungu Commission Report. That the particulars of fraud were pleaded in the counter-claim.

On whether title to the suit land was acquired lawfully, Counsel relied on the provisions of Section 26 of the Land Registration Act and submitted that the certificate of title over the suit property was acquired illegally, un-procedurally and through a corrupt scheme. That there is procedure for disposition of public land. That the suit land was designated for Agricultural Society of Kenya (A.S.K) Showground. That Fredrick Omondi Oyoo disposed of the land to KEF MILLERS before he fulfilled the primary purpose stipulated in the letter dated 28^th December, 1987 which was to construct a primary and secondary school on the property.

That at the time Fredrick Omondi Oyoo acquired the land, a Part Development Plan (PDP) had not been drawn which makes the process of acquiring the suit property illegal. That thus the subsequent transfer of the suit land to KEF MILLERS LTD and thereafter to the Board of Trustees, Redeemed Gospel Church was null and void ab initio.

That Fredrick Omondi Oyoo did not address the court on whether he was ever issued with letter of allotment from the Commissioner of Lands. That he was never issued with certificate of lease over the suit property.

That the Plaintiffs failed to produce Letters of Allotment, Certificate of Lease that was issued to Fredrick Omondi Oyoo, Receipts for payment of stamp duty, approved building plans, approved Part Development Plan, authentic or certified consent from the Municipality of Kisumu and Commissioner of Lands approving transfer from Fredrick Omondi Oyoo to KEF MILLERS LTD, a beacon certificate, change of user. That this shows that the Plaintiffs failed to conduct due diligence prior to purchase of the suit property and hence they cannot assert the defence of innocent purchaser for value with regard to land that was illegally acquired.

That the correspondence dated 5^th November, 1993 cannot be equated to Letter of Allotment. That the Plaintiff failed to produce a Letter of Allotment from the Commissioner of Lands and a Letter of Acceptance of the offer in respect of the suit property.

That Fredrick Omondi Oyoo did not comply with the terms of the offer within the stipulated time. Counsel relied on the case of Torino Enterprises Ltd -vs- Attorney General (2023)eKLR.

Counsel submitted that as at 5^th November, 1992, Fredrick Omondi Oyoo lacked the requisite capacity to transfer ownership of the suit property to KEF MILLERS and/or HEKIMWE INVESTMENTS LTD. That in the circumstances, the transfer to KEF MILLERS LTD and the plaintiffs were void ab initio.

That the inclusion of the suit land in the Ndungu report was an affirmation of the Defendants’ averment as pleaded in the counterclaim.

That the act of the Defendants approving building plans and receiving payment of rates from the Plaintiff does not negate an illegality and/or cure the flawed process Fredrick Omondi Oyoo used to acquire possession of the suit property. That the property is still public land.

On whether or not the Defendant trespassed onto the suit land, Counsel submitted that the Plaintiffs failed to provide any evidence of encroachment by the Defendant. That there is nothing in the Plaintiff’s evidence that can be used to enable the court determine the actual and/or measure of the damage or loss that the Plaintiff and/or its members suffered. That the Plaintiff should not be awarded general damages.

Issues for Determination

From the pleadings, evidence and submissions the following emerge as the issues for determination: -

1. whether or not acquisition of the suit land by the Plaintiff was lawful;
2. whether or not the Defendants trespassed onto the suit land;
3. whether or not the Plaintiffs are entitled to the relief sought;
4. whether or not the Defendants are entitled to relief sought in the counter-claim;
5. who pays costs of the suit?

Analysis and Determination

The first issue for determination is whether or not acquisition of the suit land by the Plaintiffs was lawful. The Plaintiffs’ case is that they are the registered owners of the suit land. PW1 testified on how the Plaintiff acquired the land. That the Plaintiff bought the land at Kshs.5,000,000 from HEKIMWE INVESTMENT LTD who were then the registered owners.

The Plaintiffs produced the land sale agreement dated 7^th September, 2000 between HEKIMWE INVESTMENT LIMITED as the Vendor and Redeemed Gospel Church Inc. as the Purchaser. The subject property was parcel No. KISUMU/MUNICIPALITY/BLOCK 9/145 sold at Kshs.5,000,000/= as the purchase price. The Plaintiff produced evidence of payment of the purchase price in full.

The Plaintiff further produced Transfer of Lease of the suit land from HEKIMWE INVESTMENT LTD to Redeemed Gospel Church Inc.

The Plaintiff also produced a certificate of lease dated 25^th May, 2004 to show that the suit land is registered in the name of the Plaintiff. The first lease was given to the plaintiff on 13/12/2000 in the name of Redeemed Gospel Church but later there was a change of name to Registered Trustees Redeemed Gospel Church hence the lease dated 25/5/2004. The Lease Certificate produced showed that the suit land was charged to Barclays Bank on 27/10/2000 for a loan facility which was later discharged. Again on 21.6.2007, the land was charged to Equity Bank. All with the consent of the Defendants and the Ministry of Lands. The Memo dated 30/10/2006 signed by G. L. Mukofu for Commissioner of Lands recommended that the plaintiff’s request to charge the property be granted. Further, the letter by the Commissioner of Lands dated 1. 11. 2006 to the District Land Registrar Kisumu advised the Land Registrar that the matter had been reviewed and that the Land Registrar may grant Consent to the plaintiffs to charge the property in the usual manner.

The Defendants question the validity of the Plaintiffs’ title on ground that the original allottee of the land one Fredrick Omondi Oyoo did not acquire the land procedurally hence he had no capacity to pass good title to KEF MILLERS/ HEKIMWE INVESTMENTS LTD who sold it to the Plaintiffs.

Fredrick Omondi Oyoo or his representative was not joined in the counterclaim by the Defendants so that he could answer the allegations of illegal acquisition of the property.

The Plaintiffs’ witness explained the steps that the Plaintiffs took in doing due diligence. The witness explained that the Plaintiffs were shown among other documents a transfer from Fredrick Omondi Oyoo to KEF MILLERS (exhibit D.4 and a Lease in the name of KEF MILLERS who was the seller. The Lease was produced as exhibit P.6 by the plaintiff and exhibit D. 5 by the Defendants.

The Defendant also claimed that the land was set apart for the Agricultural Society of Kenya Showground. To prove this, a document was produced as exhibit D.1 as a Part Development Plan No.217 executed in the year 1976. Perusal of the document does not show the position of the showground in relation to the suit land on the ground. The letter dated 18. 1. 2007 by the Provincial Physical Planning Officer had a copy of the Part Development Plan attached that shows the existence of the suit land on the ground. The Memo dated 30. 10. 2006 from the Commissioner of Lands while giving reasons why the plaintiff’s lease could not be revoked indicated inter alia that the current user was educational, that the showground was no longer in the area. 

Further, the evidence on record shows that the Defendants recognized the Plaintiffs as owners of the suit land. The Defendants gave the Plaintiffs provisional approval for development of the existing school on the land. The Minutes dated 27^. 10. 2009 show this. Assessment of the school by Municipal Education Officer found that the School had basic requirements and recommended it for registration. The plaintiff was allowed by the Defendants to construct a perimeter wall. The Defendants collected rents and rates from the plaintiff. The Defendants engaged the Plaintiffs as owners of the land for purposes of opening the rear road of access to the Stadium, compensation was agreed on which has not been paid to date.

The evidence on record shows that the plaintiffs hold a certificate of lease to the property, that they purchased the property in good faith with no knowledge or notice of any fraud or any problem with the suit land and at a valuable consideration. The seller showed them a certificate of lease in the seller’s name. The plaintiffs took possession and have been in occupation.

I find that the acquisition of the suit land by the Plaintiff was lawful.

On whether or not the Defendants trespassed onto the suit land, the Plaintiff led evidence of the actions of the agents of the Defendants in trespassing onto the land and the destruction they caused. PW1 testified that the agents who came to demolish property on the land used bulldozers and that they were in County uniforms. The photographs produced as exhibits confirm the demolitions.

DW1 did not deny the demolitions. He only stated that the people who demolished the property did not have his instructions to do so. I find that it has been demonstrated that the Defendants through their agents trespassed onto the suit land.

The third issue is whether the Plaintiff is entitled to the relief sought.

The relief sought by the Plaintiff is firstly, a declaration that the Plaintiff is the absolute owner of the disputed parcel of land and the 1^st Defendant Municipal Council, the City Manager of the 3^rd Defendant and the 3^rd Defendant and County Government of Kisumu are trespassing. From the evidence placed before court and more particularly, the land sale agreement, evidence of payment of the purchase price and the Lease certificate I find that the plaintiffs are entitled to a declaration that they are the owners of the suit land and that the acts of the Defendants thereon amount to trespass to land.

The second prayer is for an order compelling the Defendant to approve the Plaintiffs’ building plans. It was the plaintiffs’ case that building plans submitted to the Defendants for approval so as to enable development of the land have not been approved to date. The defendants in their submissions cited the Ndungu report as one of the reasons why the approval had not been given. However, vide Memo dated 30/10/2006, the Commissioner of Lands gave reasons why the plaintiffs Lease could not be revoked. The reasons were that the current user was educational, that the Showground was no longer in the area and that the Ndungu report had wrongly indicated that the land was currently for residential purposes when it was actually a school. Further by letter dated 2/12/2014, the Commissioner of Lands advised that the Ndungu report had not made reference to previous correspondence particularly, the letters dated 22/10/2010, 1. 11. 2006 and the Memo dated 30.10. 2006. The plaintiffs are entitled to have their building plans approved to enable development of the land

The 3^rd prayer was a permanent injunction restraining the 1^st, 2^nd and 3^rd Defendants, their servants, agents, representative and from sub-dividing, transferring or in any way interfering with land parcel number KISUMU MUNICIPALITY BLOCK 9/145. Having found that the suit land is the property of the plaintiffs and that the Defendants trespassed onto it, the plaintiffs are entitled to an order of injunction to bar future acts of trespass.

Regarding general damages in Nakuru Industries Limited -vs- S S Mehta & Sons [20l6] eKLR the court held: -

“The General principles as regards the measure of damages to be awarded in cases of trespass to land where damage has been occasioned to the land is the amount of diminution in value or the cost of reinstatement of the land. The overriding principles is to put the claimant in the position he was prior to the infliction of the harm.”

In the case of Duncan Nderitu Ndegwa v. KP& LC Limited & Another (2013) eKLR it was held that: -

“…once a trespass to land is established it is actionable per se, and indeed no proof of damage is necessary for the court to award general damages. This court accordingly awards an amount of Kshs 100,000/= as compensation of the infringement of the Plaintiff’s right to use and enjoy the suit property occasioned by the 1st and 2nd Defendants trespass.”

Having established that the Defendants did trespass onto the land, I find that the Plaintiffs are entitled to damages.

Under section 27 of the Civil Procedure Act, costs of the suit follow the event.

On whether or not the Defendants are entitled to the claim in the counterclaim, having found that the suit land belongs to the plaintiff and that the Defendants’ entry there onto was an act of trespass, I find that the counter-claim has not been proved.

The upshot is that I find that the Plaintiffs have proved their case on a balance of probabilities and that the counter-claim has not been proved.

The counter-claim is therefore hereby dismissed. No orders as to costs.

Judgement is entered in favour of the Plaintiff for: -

1. a declaration that the Plaintiff is the owner of the parcel of land known as KISUMU MUNICIPALITY BLOCK 9/145.
2. An order compelling the Defendant to approve the Plaintiff’s building plans in accordance with the laws and regulations governing approval of building plans.
3. A permanent injunction restraining the 1^st, 2^nd and 3^rd Defendants, their servants, agents and representative from sub-dividing, transferring or in any way interfering with land parcel number KISUMU MUNICIPALITY BLOCK 9/145.
4. General damages of Kshs 1,000, 000/ for trespass.
5. Costs of the suit.

Orders accordingly.

Judgement dated and signed at Kisumu and delivered this 7^th day of November, 2024 virtually through Microsoft Teams Online Application.

E. ASATI,

JUDGE.

In the presence of:                   

Maureen: Court Assistant.

Mwamu for the Plaintiff

Rodi for the Defendants.