Case ID:181964

Benard Mbugua Kinyanjui v County Land Registrar, Kiambu & another [2021] eKLR

Case Metadata

Case Number:

Environment and Land Miscellaneous 35 of 2019

Parties:

Benard Mbugua Kinyanjui v County Land Registrar, Kiambu & Attorney General

Date Delivered:

24 Sep 2021

Case Class:

Civil

Court:

Environment and Land Court at Thika

Case Action:

Ruling

Judge(s):

Lucy Nyambura Gacheru

Citation:

Benard Mbugua Kinyanjui v County Land Registrar, Kiambu & another [2021] eKLR

County:

Kiambu

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 MISC NO. 35 OF 2019

BENARD MBUGUA KINYANJUI...........................APPLICANT

VERSUS

COUNTY LAND REGISTRAR, KIAMBU...1

ST

RESPONDENT

THE ATTORNEY GENERAL ......................2

ND

RESPONDENT

RULING

By a Notice of Motion dated 12

th

June 2019

, the Applicant sought for the following orders as against the Respondent;

1. That a mandatory order do issue directing the 1

st

Respondent by himself or through his officers or agent or servant to unconditionally supply to the Applicant all the documents used to register the name of

George Gathutu Wainaina

in registration Section Part B Proprietorship Section Entry No. 5 date

16

th

March 2001,

in piece of land known as Dagoretti/Kinoo 1070.

2. That a mandatory order do issue directing the 1

st

Respondent by himself or through his officers or agents or servant unconditionally release Title Deed document in the name of the Applicant Bernard Mbugua Kinyanjui in the 1

st

Respondent custody of piece of land known as Dagoretti/Kinoo 1070

.

The Application is premised on the grounds that on

16

th

March 2001

, the 1

st

Respondent registered the name of

George Gathitu Wainaina,

in registration Section PART B

Proprietorship Entry 5,

on the suit property without any colour of right. That from

16

th

March 2001,

to date the Applicant has been writing to the 1

st

Respondent to supply the documents, without success. Further that the Ministry of Lands through Chief Land Registrar, and

Permanent Secretary

has been requesting from the 1

st

Respondent documents used to transfer the suit property without any success. That for the past 19 years, the 1

st

Respondent has ignored/ refused or neglected the letters which were addressed to him.

That the Inspector General applied for documents which were used to transfer the suit property from the Applicant to

George Wainaina,

to enable them investigate the fraud, but that the same was not supplied. That the Applicant has suffered for the past 19 years and the 1

st

Respondent has failed in its statutory and Constitutional duty and as a result the Applicant right to enjoy his property has been violated.

In his Supporting Affidavit,

Bernard Mbugua Kinyanjui

averred that on

16

th

March 2001,

the District Land Registrar cancelled his name from the Register and fraudulently registered the name of

Gathitu Wainaina,

and his efforts to get the documents used for the said registration have not been fruitful. That the District Land Registrar received the letters seeking for supply on

2

nd

February 2008,

but no supply or response was made. Further that despite his subsequent letters to the District Land Registrar, the same has born no fruits . Further that on

29

th

July 2011,

the Chief Land Registrar, Kiambu wrote to the District Land Registrar and requested him to issue

Bernard Mbugua Kinyanjui,

with the documents used to transfer the suit property. Further that on

11

th

April 2012,

he further wrote to the Permanent Secretary, who in turn wrote to the District Land Registrar requesting him to supply the Applicant with the supporting documents on how the suit property changed hands but no response was forthcoming.

That the District Land Registrar then wrote to the Ministry detailing the history of the suit property, which history was not required. That the Ministry then wrote to the District Land Registrar, Kiambu informing him that the Applicant wanted to be issued with certified true copies of the original documents that were used to transfer the suit property including an Application for Land Control Board, letter of consent, receipt for whole transaction, any other documents relating to the whole transaction, . which letter enlisted no response. Further, that his efforts to get information from the

National Land Commission

have not been fruitful.

The Applicant filed a Further Affidavit on

9

th

December 2019,

and averred that he had attached the document that he failed to inhibit in his Supporting Affidavit and in his submissions. That the document was to show how he had been struggling with the instant matter for the last

19 years

as he had sought help t no avail.

The Respondent did not file any pleading in this matter. However, on in

22

nd

January 2020

, the Applicant appearing in person and

Ms. Nyawira

taking instructions for the Respondents, agreed that the Land Registrar Kiambu appear in Court and produce the documents that the Applicant needed.

On

17

th

November 2020

, the Land Registrar Kiambu

Philip Munyoki Maingi,

appeared in Court and testified that he had the documents in Court, the same being the transfer document for

Dagoretti/ Kinoo/1070

. That the said land was transferred by charge in exercise of Power of Sale on

16

th

March 2001,

and that the same was transferred to

George Gathitu Wainaina

. That there were other documents to wit an Application for Consent from

Barclays Bank of Kenya Limited.

Letter of consent dated

1

st

March 2001,

Memorandum of Sale, payment receipt for stamp duty and that the transfer was effected.

The Court ordered the Applicant to go through the documents and verify whether the same was what he had applied for. On

31

st

May 2021

the Applicant informed Court that he did not get any of the documents that he had applied for to which the Court reserved a date for Ruling.

The Respondents did not file any submissions. The Court has carefully read and considered the pleadings by the Applicant, the Affidavits in support, the evidence adduced by the Land Registrar and the submissions and renders itself as follows;

The Applicant filed the instant Application seeking for various Orders. Amongst the said orders, the Applicant sought to be supplied with the documents that were used to register

George Gathitu Wainaina

as the owner of the suit property . The Applicant has also sought orders that the Respondents be ordered to release the title in his name. In the Court’s understanding, as per the pleadings by the Applicant, that the registration of the said

George Gathitu Wainaina

be cancelled. The Court therefore finds and holds that the issues for determination are;

1. Whether the 1

st

Respondent has supplied the Applicant with the documents sought.

2. Whether the Applicant is entitled to the orders.

1. Whether the 1

st

Respondent has supplied the Applicant with the documents sought.

In his Application, the Applicant unconditionally supplied to the Applicant all the documents used to register the name of

George Gathutu Wainaina

in registration Section Part B Proprietorship Section Entry No.5 date

16

th

March 2001

in piece of land known as

Dagoretti/Kinoo 1070

.

On

17

th

November 2020

, the Land Registrar Kiambu

Philip Munyoki Maingi

appeared in Court and testified that he had the documents in Court, the same being the transfer document for

Dagoretti/ Kinooo/1070

. It was his evidence that the same was transferred by chargee in exercise of Power of Sale on

16

th

March 2001

. He produced in evidence an

Application for Consent from Barclays

Bank of Kenya Limited

.

Letter of consent

dated

1

st

March 2001,

Memorandum of sale and payment receipt for

Stamp

duty. In his evidence, those were the documents that were used to transfer the suit property to the said

George Gathitu Wainaina.

It may or not may be that the said documents were sufficient to effect the transfer. However, the evidence by the Land Registrar is that as per their records, those were the documents that were used to effect the transfer of the suit property.

The Applicant is of the view that those were not the documents that he had asked for or needed. However, it is the Court’s considered view that a party can only produce that which is in its possession. The

Land Registrar,

having produced and supplied the Applicant with the documents, he says were used to effect the transfer, this Court cannot then compel the

Land Registrar

to produce any other documents which it does not have. The Applicant had sought for an order that the documents used to effect the transfer be produced and the Court is thus satisfied that the same has been done regardless of whether or not the same were sufficient to effect the transfer.

The Court therefore finds and holds that the Respondents duly supplied the Applicant with the documents that were used to effect transfer of the suit property .

2. Whether the Applicant is entitled to the orders.

The Applicant had sought for two orders , one seeking to be supplied with the documents used to transfer the suit property and the Court finds that the same has been satisfied and therefore spent and cannot be granted.

The Applicant has also sought for a mandatory order compelling the Respondent to release the title document in his name and essentially cancel the

title deed

issued to

George Gathitu Wainaina

. It was the Land Registrar’s evidence that the suit property was transferred as a result of

exercise of power of sale by a chargee.

It is further not in doubt that as per the evidence adduced that the said suit property is now registered in the said

George Gathitu Wainaina’s

name. Therefore, it follows that the said

George Gathitu Wainaina

has Interest over the said property and adverse orders cannot be made in his absence or issued against him.

The Applicant ought to have filed a suit against the parties to whom he seeks orders to be effected against and therefore the Court finds and holds that the said orders are not tenable and Consequently, finds that the Applicant is not entitled to the orders sought. The Court finds the instant application is

not merited.

Having now carefully read and considered the

Notice of Motion Application,

the evidence adduced and the written submissions, the Court finds and holds that the Applicant has not availed sufficint evidence to warrant the Court grants the orders sought. Therefore, the court finds and holds that the Applicant is

not

entitled to the orders sought and the Application is therefore not merited and it is dismissed entirely..

Costs usually follow the event unless the Court’s finds that there are special circumstances that warrant deviating from the same. The Applicant had sought these documents from the Respondents who had to be summoned by Court in order to produce the same. The Respondents being a government institution, the Court is therefore inclined to order that each party to bear its own costs of the suit.

It is so ordered

DATED, SIGNED

AND DELIVERED AT THIKA THIS 24

TH

DAY OF SEPTEMBER, 2021

L. GACHERU

JUDGE

Court Assistant – Lucy