REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KISII
ELCLA NO. E002 OF 2023
THOMAS MAISIBA ONDORO ……………………………………….……… APPELLANT
AND
LYDIA MONYENYE …………………………………………………… 1ST RESPONDENT
WILFRED MONYENYE ………………………………………………. 2ND RESPONDENT
JUDGMENT
(Being an appeal against the judgment of Hon. P.K Mutai, Principal Magistrate, delivered on 26 June 2023 in the suit Kisii CMCCELC No. 02 of 2020)1. The appellant commenced suit through a plaint filed on 9 January 2020. He pleaded that he is the rightful proprietor of the land parcel Kisii Municipality/Block I/841 measuring 0.0515 Ha, having purchased it from the previous owner, one Geoffrey Matoke Omurwa, on 5 July 2018. He averred that upon the purchase he was issued with a Certificate of Lease on 31 July 2018. He pleaded that on 11 August 2019 he went to fence the suit property but was prevented by the 2nd defendant/respondent who showed him title documents belonging to the 1st defendant/respondent. He contended that the title of the 1st respondent was procured fraudulently, inter alia through a fake allotment letter. In the suit he asked for a declaration that he is the rightful proprietor of the suit property; an order of permanent injunction against the respondents; general damages for trespass; and costs.
2. The respondents filed a joint defence wherein they asserted that the proper title is that held by the 1st respondent and that the suit property measures 0.0456 Ha. They pleaded that the purported registration of the appellant was cancelled as it was procured fraudulently. They averred that it is the 1st respondent who was issued with an allotment letter to the suit property on 12 March 1997 and issued with a Certificate of Lease on 30 December 2004.
3. In his evidence, the appellant testified that he bought the land from Geoffrey Matoke Omurwa and produced various documents to prove that he had good title.
4. PW -2 was Stephen Mokaya the Land Registrar, Kisii. He was aware that two parties were claiming title to the suit land. He testified that his office has only one record, with the first proprietor being Paul Gwaro Bosire who was issued with a Certificate of Lease on 8 September 1988. He then transferred his interest to Geoffrey Omurwa on 9 March 2000. Geoffrey Omurwa subsequently transferred his interest to the appellant on 31 July 2018. He testified that what was in their record was not the original register as the original register was plucked out of their file and what he had was placed therein. He testified that it is a forged document. Cross-examined he reiterated that the register in the file was planted. It indicated the land to be 0.15 Ha which was big and according to him there is no such land measurement in Kisii. He testified that there was no letter of allotment and no letter from the National Land Commission, without which, no land can be registered. He was shown the documents of the respondents but I have not seen any conclusive answer from him on whether or not they are the genuine documents. He nevertheless acknowledged that his office had written a letter dated 14 August 2019 to the Kenya Police Service relating to the suit land and the land parcel No. 840, and in that letter he wrote that the documents of the appellant were planted in their registry, that the property belongs to the 1st respondent, and that the Certificate of Lease issued to the appellant has been recalled for cancellation. He nevertheless stated that they have no record of the 1st respondent being proprietor. He testified that he liaised with the Land Commission and was told that the clearance certificate was not correct. He concluded his evidence with the statement that he does not know who owns the land.
5. PW – 3 was Simon Ting’a the Coordinator National Land Commission, Kisii. He testified that they do not have documents for the suit land.
6. With the above evidence, the appellant closed his case.
7. DW – 1 was the 2nd respondent. He introduced the 1st respondent as his wife. He testified that the land is registered in name of the 1st respondent and he produced documents to demonstrate her registration. According to him the land measures 0.0456 Ha and not 0.515 Ha as shown in the appellant’s title. He thought that 0.515 Ha would be too big a land within the township.
8. DW – 2 was Nyamache Aaron, the Director Land Administration, Kisii County Government. His evidence was that the suit land belongs to the 1st respondent. He testified that the UPL number belongs to her and that it is number 286/00044 (though it was never elaborated what a UPL number is and its significance to land ownership.) He added that the unique personal number for the 1st respondent is 57/0193 which is the correct number (again it was never elaborated what a unique personal number is and its significance to land ownership). He testified that their system cannot re-allocate a number. In cross-examination he testified that they have documents to support ownership of the land by the 1st respondent which are lease and the certificate.
9. With the above evidence, the defence closed their case. Counsel were invited to file submissions, which they did, and the court proceeded to deliver the impugned judgment on 26 June 2023. After rehashing the evidence, the trial court made the following conclusion :
“The plaintiff therefore failed to produce certificate of lease to proof (sic) ownership. This was an omission which has turned out to be fatal to plaintiff’s case. The evidence of PW2 Steve Mogaya (sic) also dims plaintiff’s case with allegations of falsification or records (sic). Going to the basic that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he assert must prove that those facts exist. I find the plaintiff did not placed (sic) any materials (sic) before court to show he is the owner of suit land. There were also serious allegations coming from land Registrar that records showing the plaintiff was the owner were planted in the register and original records plucked out. On the balance of probability, the plaintiff’s case was not proved. It is dismissed with costs to the defendants.”
10. Aggrieved by the above judgment, the appellant has now preferred this appeal. Five grounds are raised, but more or less the appellant contends that the trial court was wrong in holding that he did not prove ownership of the suit property. The appellant seeks that the judgment be set aside and judgment be entered in his favour as prayed in the plaint.
11. I directed the appeal to be canvassed by way of written submissions. Both counsel for the appellant and counsel for the respondents filed their submissions. I have taken these into account before arriving at my decision.
12. This is a case of two people holding title to the same land and is one that requires to be judged based on the documentary evidence produced. The court needs to assess the root of the title to find out which of the two appears to have the lawful origin and I have assessed the documentation of both the appellant and the respondents.
13. Starting with the documents of the appellant, it will be recalled that it is his case that he purchased the suit property from one Geoffrey Matoke Omurwa. He indeed produced the sale agreement dated 5 July 2018. That sale agreement shows that the land being purchased is Kisii Municipality/Block I/841 measuring 0.515 Ha at a consideration of Kshs. 1,500,000/=. He also produced a search dated 24 July 2018 showing Geoffrey Matoke Omurwa as the proprietor of the suit land. That search shows that Geoffrey became registered on 9 March 2000 and he was issued with a Certificate of Lease on the same day. The plaintiff next produced a Certificate of Lease in name of Geoffrey Matoke Omurwa issued on 9 March 2000. That Certificate of Lease shows the Lessor to be Gusii County Council and the first lessee to be one Paul Gwaro Bosire. The term is 99 years from 1 July 1998 at an annual rent of Kshs. 2,000/=. The acreage of the land is 0.515 Ha. Next produced was the Leasehold Register (White Card). The first entry is in name of Paul Gwaro Bosire having become registered on 8 September 1998; then Geoffrey Matoke Omurwa, having become registered on 9 March 2000; then registration of the appellant on 31 July 2018 and on the same day he was issued with a Certificate of Lease. He also produced a letter from the Land Registrar, dated 4 February 2016 addressed to the Nyamira Law Courts, verifying that title is with Geoffrey Matoke Omurwa. It would appear that the title was probably going to be used for purposes of standing surety though I cannot with full certainty vouch for that. The appellant also produced a letter of consent dated 24 July 2018 from the National Land Commission giving a no objection letter, apparently with regard to the transfer of the land to the appellant, and a rates clearance certificate dated 19 July 2018 from the County Government of Kisii affirming that rates have been paid. He also availed a valuation report indicating that the property was valued for purposes of stamp duty. Interestingly, that valuation report indicates that the plot size is 0.0348 Ha. The appellant further produced a Certificate of Lease in his name issued on 31 July 2018 and an Official Search showing him as proprietor dated 8 May 2019. Regarding the first owner, he produced a Letter of Allotment issued to Paul Gwaro Bosire dated 12 March 1997. That allotment letter shows that the land being allotted is the land parcel Kisii Municipality/Block I/841 measuring 0.0465 Ha. The allotment letter shows that the term is of 99 years from 1 July 1995 at an annual rent of Kshs. 800/=.
14. It is apparent from the above documentation that there are discrepancies that are not reconcilable. If at all the first proprietor got a lease for the suit land measuring 0.0465 Ha, for 99 years from 1 July 1995, at an annual rent of Kshs. 800/= , it does not add up, and it is not explained how he got issued with a Lease and Certificate of Lease showing land measuring 0.515 Ha, for a term of 99 years from 1 July 1998, at an annual rent of Kshs. 2,000/=. The Lease is extremely doubtful. It follows that the doubt is carried to subsequent owners of the suit land. The plaintiff never produced any survey report to show that this land is truly 0.515 Ha which I agree appears to be too big a title for Kisii Township and also contradicts what is in the allotment letter by a very wide margin. Even in his plaint, the pleadings were for land measuring 0.0515 Ha and not 0.515 Ha.
15. I am persuaded that the appellant never proved good title to the suit land. I will however fault the trial court for holding that he never produced a Certificate of Lease. He actually did, and this is apparent from the evidence, only that this court is persuaded that it is not a legitimate title.
16. As far as the title documents of the respondents was concerned, the evidence was that their records are not in the Land Registry. I further observe that the respondents did not have any counterclaim that they should be declared the rightful owners of the suit land. Given this position, all I will hold is that the appellant did not prove good title to the suit land and he has no entitlement to it. His suit seeking to be declared owner of the suit land, seeking to have the respondents restrained from it by way of a permanent injunction, and seeking damages for trespass, therefore fails. For the avoidance of doubt, I make no orders regarding the legitimacy of the title of the respondents.
17. The result is that this court upholds the dismissal of the appellant’s suit with costs albeit on different considerations.
18. This appeal has no merit and it is hereby dismissed with costs.
19. Judgment accordingly.
DATED AND DELIVERED THIS 7 DAY OF NOVEMBER 2024
JUSTICE MUNYAO SILA
JUDGE, ENVIRONMENT AND LAND COURT
AT KISII
Delivered in the presence of :
Mr. Nyambati for the respondents
N/A on part of M/s Ochoki & Co for the appellant.
Court Assistant – David Ochieng;