Case ID:180406

Francis Njuguna Thuo v Julius Macharia Taki in his capacity as the member of County Assembly Witeithie Ward & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Case Suit 149 of 2018

Parties:

Francis Njuguna Thuo v Julius Macharia Taki in his capacity as the member of County Assembly Witeithie Ward & County Government of Kiambu

Date Delivered:

29 Jul 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Francis Njuguna Thuo v Julius Macharia Taki in his capacity as the member of County Assembly Witeithie Ward & another [2021] eKLR

Advocates:

M/s Waigwa for the Plaintiff

M/s Mbugua for the 2nd Defendant

Court Division:

Environment and Land

County:

Kiambu

Advocates:

M/s Waigwa for the Plaintiff

M/s Mbugua for the 2nd Defendant

Case Outcome:

Suit allowed

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT THIKA

ELC SUIT NO. 149 OF 2018

FRANCIS NJUGUNA THUO.......................................................................................PLAINTIFF

VERSUS

JULIUS MACHARIA TAKI

in his capacity as the member of

COUNTY ASSEMBLY WITEITHIE WARD..................................................

1

ST

DEFENDANT

COUNTY GOVERNMENT OF KIAMBU......................................................2

ND

DEFENDANT

JUDGMENT

By a Plaint dated

15

th

May 2018,

the Plaintiff sought for Judgment against the Defendants jointly and severally seeking for the following orders:-

a. A Declaration that the Plaintiff is the rightful registered proprietor of all that land parcel known as original land Reference Number L.R No. 14936(with resultant titles known as L.R No. 14936/1-13), all measuring approximately 0.3997 Ha situate within Witeithie ward

b. A Declaration that the 1

st

Defendant has unlawfully encroached onto the property of the Plaintiff, which is all that property known as original land reference L.R No. 14936(with resultant titles known as L.R No. 14936/1-13) all measuring approximately 0.3997 Ha situate within Witeithie ward.

c. The 1

st

& 2

nd

Defendants be restrained by themselves, their servants, agents employees and/or anyone from encroaching onto or interfering in any manner howsoever with the Plaintiff’s quiet user and enjoyment of all that property known as L.R No. 14936(with resultant titles known as L.R No. 14936/1-13) all measuring approximately 0.3997.

d. The 1

st

& 2

nd

Defendants be restrained by themselves, their servants, agents, employees and /or anyone claiming ownership through or under them by permanent injunction from making public allegations and/or claims howsoever that all that property known as original L.R No. 14936(with resultant titles known as L.R No. 14936/1-13) all measuring approximately 0.3997 Ha belongs to anyone else besides the Plaintiff

e. Damages for trespass

f. Punitive or exemplary damages.

g. Costs of this suit

h. Any other or further relief this honourable Court may deem fit to grant.

In his statement of Claim, the Plaintiff averred that in

1990,

he bought

L.R No. 14936,

from

Frame Tree Farms Limited,

and the said land was transferred to him in

1992.

That he took possession and started developing the said land as he deemed fit. That in

2005,

he engaged a Surveyor who carried out subdivision of the suit property and on

23

rd

August 2006

, the resultant

13 deed plans

being

L.R No. 14936/1-13,

were duly registered in his name.

Further that he has retained possession and has been in full control of the suit property without any interference until

May 2018,

when the 1

st

Defendant unjustifiably claimed that the said suit property was public land and started encroaching on the said suit property. That prior to

May 2018

, the 1

st

Defendant publicly alleged that the suit property was meant to be a public utility and engaged his agents/employees to forcefully enter the suit property and removed the beacons that had been rightfully placed. That the Plaintiff’s demands to the 1

st

Defendant to stop the trespass were not fruitful.

That on

9

th

May 2018

, the 1

st

Defendant publicly declared that under no circumstances shall the

County Government of Kiambu,

allow the Plaintiff’s continued ownership and / or use of the suit land and that the same was declared in his presence and that of the Surveyor. That the Defendants have been legally notified in writing that there is no eviction order against the Plaintiff and no order to the effect that the land is public land. It is the Plaintiff’s contention that the suit property is neither located on a public amenity nor set aside for any public use . That it is not specifically mentioned in the

Ndungu’s Land Report,

and does not fall under any titles revocation notices.

The Plaintiff further averred that he has suffered loss by way of deprived rights of user and damages. That the 1

st

Defendant ‘s actions as a servant of the

County Government of Kiambu

, have been oppressive, arbitrary and unconstitutional and they are bordering on actual harassment and disregard for the Plaintiff ‘s right to peaceful enjoyment of his property.

The suit is contested and the 2

nd

Defendant filed its statement of Defence dated

5

th

March 2019,

and denied all the allegations made in the Plaint. The 2

nd

Defendant denied that the 1

st

Defendant is its servant or agent and that it should be held accountable for his actions. It further denied being issued with a notification in writing over the said parcel of land. It was its contention that the Plaintiff has not proved any interference with his parcel of land by the 2

nd

Defendant.

The 1

st

Defendant entered appearance vide Notice of Appointment dated

28

th

May 2018,

through the

Law Firm of Kimani Wakimaa & Company Advocates,

but did not file any Defence nor participate in the hearing.

The matter proceeded by way of viva voce evidence, wherein the Plaintiff testified for himself and closed his case. The Defendants did not call any witnesses.

PLAINTIFF’S CASE

PW1 Francis Njuguna Thuo

adopted his witness statements as his evidence in Court. He produced his list of documents dated

15

th

May 2018,

as Exhibits 1 to 5 and urged the court to allow his prayers.

That the 1

st

Defendant encroached on his land. That he had reliable information that the Governor had gone to see the plot. Further, that the area MCA engaged his agents and visited his plot and later trespassed on it, That they continued the act of trespass and destroyed his property. That the County Government of Kiambu intended to construct a hospital, though no hospital was constructed. That the area

MCA

and the

County Government of Kiambu

tried to repossess his property. That the MCA and the Governor are joined at the hip and 1

st

Defendant is the Representative of the County Government.

The Plaintiff and the 2

nd

Defendant filed written submissions which the Court has read and considered. The Court has also read and considered the pleadings by the parties, the evidence adduced and the relevant provisions of law and finds that the issue for determination is

whether the Plaintiff is entitled to the orders sought

.

The Court will first determine whether the 1

st

Defendant is an employee and or servant/agent of the 2

nd

Defendant.

Article 176 of the Constitution makes provisions for County Government and under Article 176(1) it provides;

“

there shall be a County government for each county, consisting a County Assembly and County Executive

.”

From the above, it is not in doubt that the 1

st

Defendant is not an agent nor an employee of the 2

nd

Defendant as their offices are distinct.

The Plaintiff had sued the 2

nd

Defendant on the basis that the 1

st

Defendant was acting on its behalf. No evidence nor direct allegations were made against the 2

nd

Defendant. Therefore, the Court finds and holds that the suit as against the 2

nd

Defendant is not tenable, having held that the 1

st

Defendant was not its agent.

Though duly served, the 1

st

Defendant only entered appearance but did not file a Defence and the allegations made by the Plaintiff remained uncontroverted. It is not in doubt that the Plaintiff is the registered owner of the suit property as he has produced in evidence, a Grant evidencing the same.

Section 2

6

of the

Land Registration Act

provides that

“(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—

(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or

(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”

The Plaintiff being in possession of the Certificate of title is therefore the

absolute

and

indefeasible

owner of the suit property. No evidence has been produced to show that his title to the suit property has ever been impeached or no evidence has been called to challenge his registration. Therefore, the Plaintiff being the registered owner of the suit property, remains the indefeasible and absolute owner.

The Plaintiff has accused the 1

st

Defendant of interfering with his title. In his list of documents, the Plaintiff has produced, a

Grant,

and demand letter. It was also the Plaintiff’s evidence that he was present when the 1

st

Defendant sought to declare his property pubic land. These evidence has not been controverted. Though there is no recording or corroboration by a third party, the Court is satisfied that the demand letter and moving this Court is enough proof that indeed there was interference with the Plaintiff’s quiet possession of the suit property as there is no way he could have moved the Court without justifiable cause, in the absence of any evidence to the contrary. This Court is thus satisfied that the 1

st

Defendant ought to be restrained from interfering in any manner whatsoever with the Plaintiff’s quiet possession of the suit property.

The Plaintiff has also sought for damages for trespass. Though the Plaintiff has alleged that there was trespass into his property and that the 1

st

Defendant’s through his servants removed beacons, from the suit property, he has not produced any evidence of such trespass. Trespass is the unjustifiable intrusion of someone’s land. In this case, the Plaintiff needed to have proved that there was intrusion by providing photographs or any tangible proof of the same which he has failed to do. Therefore, this Court finds that the Plaintiff is not entitled to the prayers sought for damages for trespass.

Consequently the Court finds and holds that the Plaintiff has failed to prove his claim against the 2

nd

Defendant, but has partially proved his claim against the 1

st

Defendant.

Having now carefully read and considered the pleadings, the evidence adduced and the written submissions and the relevant provisions of law, the Court finds and holds that the Plaintiff has proved his claim to the required standard of balance of probabilities and his claim vide the Plaint dated

15

th

May 2018

is allowed in the following terms;

a. A Declaration be and is hereby made that the Plaintiff is the rightful registered proprietor of all that land parcel known as original land Reference Number L.R No. 14936(with resultant titles known as L.R No. 14936/1-13) all measuring approximately 0.3997 Ha situate within Witeithie ward.

b. The 1

st

Defendant be and is hereby restrained by himself his servants , agents employees and/or anyone from encroaching onto or interfering in any manner howsoever with the Plaintiff’s quiet user and enjoyment of all that property known as L.R No. 14936(with resultant titles known as L.R No. 14936/1-13) all measuring approximately 0.3997.

c. The 1

st

Defendants be and is hereby restrained by himself, his servants, agent , employees and /or anyone claiming ownership through or under them by permanent injunction from making public allegations and/or claims howsoever that all that property known as original L.R No. 14936(with resultant titles known as L.R No. 14936/1-13) all measuring approximately 0.3997 Ha belongs to anyone else besides the Plaintiff

d. Costs of this suit to be borne by the 1

st

Defendant.

It is so ordered.

DATED, SIGNED AND DELIVERED AT

THIKA

THIS 29

TH

DAY OF JULY 2021.

L. GACHERU

JUDGE

29/7/2021

Court Assistant – Dominic

ORDER

In view of the declaration of measures restricting Court operations due to the

COVID-19

Pandemic, and in light of the directions issued by His Lordship, the Chief Justice on

15

th

March 2020

, this

Judgment

has been delivered to the

parties online with their consents. They have waived compliance with

Order 21 rule 1

of the

Civil Procedure Rules

which requires that all judgments and rulings be pronounced in open Court.

With Consent of and virtual appearance via video conference – Microsoft Teams Platform

M/s Waigwa for the Plaintiff

No appearance for the 1

st

Defendant

M/s Mbugua for the 2

nd

Defendant

L. GACHERU

JUDGE

29/7/2021