Mugenyu & another v County Government of Nyeri & 2 others (Environment & Land Case 30 of 2014)  KEELC 4921 (KLR) (28 June 2022) (Judgment)
Neutral citation:  KEELC 4921 (KLR)
Republic of Kenya
Environment & Land Case 30 of 2014
L Waithaka, J
June 28, 2022
(CONSOLIDATED WITH NYERI ELC NO.26 OF 2014)
Phelis Nduta Mugenyu
Naomi Wanjiku Muturi
County Government of Nyeri
National Land Commission
1.By a plaint dated 25th February, 2014 and amended on 17th April 2014, the 1st plaintiff seeks a permanent injunction to restrain the 1st defendant from interferring with her quiet enjoyment of LR No.1246/7-Naromoru (formerly LR No.1246/1/3/R-Naromoru, Nyeri District hereinafter referred to as the suit property); a declaration that the 1st defendant’s acts and threats to forcefully invade and evict the plaintiffs from the suit property are unlawful; costs of the suit and any other or better relief the court may deem fit.
2.The 1st plaintiff’s claim is premised on the grounds that she is the bona fide owner of the suit property; that in disregard of her rights in the suit property, the 1st defendant through its employees, servants and/or agents threatened to forcefully take over the suit property from her and to demolish the structures she has erected thereon.
3.Through its statement of defence filed on 31st March 2014, the 1st defendant denied the allegations levelled against it and contended that the suit land is public land that had been offered to the 1st plaintiff’s husband and later the plaintiff on Temporary Occupation Licence (TOL).
4.Like the 1st defendant, the 2nd defendant filed a statement of defence through which it contends that the suit land is public land that it had been allocated to the 1st plaintiff on TOL basis.
5.In a rejoinder, the 1st plaintiff maintains that she was allocated the suit property and that all what remained was issuance of a lease in her favour.
The Plaintiff’s case.
6.When the case came up for hearing, the 1st Plaintiff Phelis Nduta Mugenyu (P.W.1), relied on her witness statement signed (thumb printed) on 30th January, 2014. She also relied on her list of documents filed on 17th April, 2014, after they were admitted in evidence as PEXBT 1-25.
7.Pexbt 1 is an agreement for sale of a portion of the suit property (6 acres) by the 1st plaintiff to the 2nd plaintiff; Pexbt 2 is an extract of Kenya Gazette, No.1666 dated 11th May 1965. The Gazette shows that the Commissioner of Lands issued a notice for applications for alienation of agricultural land referred to as L.R No.7836 measuring about 174 acres or thereabout (this document is not relevant as the land mentioned in the gazette notice is different from the suit property). Pexbt 3 is an agreement dated 1st January, 1968 between the Commissioner of Lands and the 1st Plaintiff. It shows that the Commissioner of Lands gave the 1st Plaintiff a TOL, to occupy the suit property for a period of 9 months. The purpose for the licence was grazing livestock. Pexbt 4 is a letter from the Commissioner of Lands to the 1st Plaintiff dated 30th April, 1979. The letter shows that the TOL issued to the 1st Plaintiff had been terminated but was, through that letter reinstated. Pexbt 5 is a letter of allotment of the suit property to the 1st Plaintiff dated 7th July, 1981. It shows that the 1st Plaintiff was given a TOL over the suit property. The TOL was for a term of three years effective from 1st August 1981. There was an option of converting the TOL to freehold grant upon fulfilment of the conditions in the letter of offer. Pexbt 6 is a Department of Lands receipt dated 18th August 1981. It shows that the 1st Plaintiff paid Kshs. 410 in respect of the TOL. Pexbt 7 is a letter dated 17th October 1984 from the Commissioner of Lands to a Mr. D. Ndegwa informing him that the decision that had been taken by the Government in respect of the suit property should not be reversed. Though it is not clear what decision the letter refers to, from the correspondences exchanged between various government offices, it is discernable that the decision referred to in the letter was the ‘Government’s’ decision to alienate the suit property in favour of the 1st Plaintiff. Pexbt 8 is Registry Index Map (RIM) dated 8th July 1992. Pexbt 9 is a letter from the Commissioner of Lands to the Director of Survey, dated 5th June 1996. Through the letter, the Commissioner of Lands was requesting for deed plan in respect of the suit property in order to issue a new grant. Pexbt 10 is a letter from the District Lands Officer Nyeri to the Commissioner of Lands. The letter shows that the suit property had been subdivided into three portions namely LR. No.1246/4; 1246/5 and 1246/6. The portions were occupied by the 1st Plaintiff, a Mr. Muchiri and the Ministry of Lands. It is indicated that the 1st Plaintiff claimed ownership of the entire suit property. Pexbt 11 is an official government receipt No.BV039952 dated 13th August 2001. It shows that the 1st Plaintiff paid Kshs. 12,200/- as survey fees in respect of the suit property.
8.Pexbt 12 is an internal Memo from Land Officer, J.M Gitau to the Commissioner of Lands, dated 24th November 2000. It gives the history of the suit property. The contents of the memo are as follows:-
9.Pexbt 13 is a letter from Department of Lands (by Karogo R.W.) to the Director of Survey dated 10th August 2001 requesting for deed plan for new grant. Pexbt 14 is a deed plan dated 21st August, 2001. Pexbt 15 is land rent demand note dated 16th May, 2003. Pexbt 16 is a letter from the Office of Commissioner of Lands (by G. Ireri) to the District Lands Officer, Nyeri. The contents of the letter are as follows:-
10.Pexbt 17 is a letter from Senior Lands Officer (S.L.O) to the Commissioner of Lands, dated 14th July 2005. Its contents are as follows:-RE: L.R NO.1246/7 (Formerly L.R-NO.1246/1/3/R-Naromoru-nyeri DistrictPlease note that investigations have revealed that the above property was allocated to Phelis Nduta Mugenyu and a letter of allotment dated 7/7/1981 issued for L.R.1246/1/3/R measuring 285 acres.The subsequent subdivision of the initial land allocated to Mrs. Mugenyu i.e LR No.1246/1/3/R into three portions is ironical. The subdivision was not initiated by the bona fide legal allotee thereby rendering it unprocedural. The allocation of the resultant subplots to third parties without regard to the initial allotee Mrs. Mugenyu are suspect. The initial letter of allotment for Phelis Nduta Mugenyu has not been cancelled and any allocation to other person(s) is creating double allocation.Site inspection of the above property has revealed that the Ministry of Agriculture has fenced off a portion of the land.Within this fenced-off area there is a semi permanent office block, foundation for construction of permanent office block, several semi permanent buildings and grounded machinery. Below the site fenced by the Ministry of Agriculture is a small earth dam and two small temporary structures/sheds.Mrs. Phelis Nduta Mugenyu has put up her homestead on the land LR. (1246/7) and she is living there with her family. The land adjacent to the homestead is extensively cultivated and the remainder is used for grazing purposes. Near the river the land is used for growing of vegetables. There are three graves on the land near the family homestead.In view of the foregoing, I recommend that the land in question i.e LR. No. 1246/7 be documented in favour of Phelis Nduta Mugenyu as was initially allocated back in 1981.Given that the Director of Surveys has prepared a deed plan for the same and Ministry of Agriculture had already relinquished its interests.”
11.Pexbt 18 is letter Ref. No.CR/130/VOL.7/304 from Director of Surveys. The contents of the letter are as follows:-
12.Pexbt 19 is cancelled survey plans of Land Reference Numbers 1246/6, 1246/4 and 1246/5.
13.Pexbt 20 is a letter from the office of the Commissioner of Lands (by G. Ireri) to the Permanent Secretary Ministry of Livestock Development. The contents of the letter are as follows:-
14.Pexbt 21 is internal memo from the office of the Commissioner of Lands to the Permanent Secretary for Lands dated 1st February, 2006. Its contents are as follows:-
15.Pexbt 22 is land rent invoice dated 1st March 2008. Pexbt 23 is a letter from Phelis Nduta Mugenyu (1st Plaintiff) to the Commissioner of Lands, dated 15th July 2013 requesting the Commissioner of lands to issue her with a title deed over the suit property. Pexbt No.24 is another letter from the 1st Plaintiff to the Commissioner of Lands, dated 17th September, 2013 reminding the Commissioner of Lands about her plea to be issued with a title deed in respect of the suit property. Pexbt 25, on the other hand, is a letter from the District Commissioner, Nyeri to the District Officer, Kieni East, dated 9th June, 1997. Through the letter, the D.C was informing the D.O of a complaint by the 1st Plaintiff to the effect that some people were harrasing her by resurveying the suit property. The letter required the D.O to investigate the complaint.
16.The evidence in support of the plaintiffs’ case is basically as contained in the contents of the documents reproduced herein above and reiterated in the oral testimony of the 1st plaintiff’s evidence, which I need not reproduce as it is in pari materia to what is contained in the documents she produced in evidence.
The Defendant’s case.
17.D.W.1, Silas King’ori Mburugu, a Land Administration Officer working with National Land Commission (NLC) relied on his witness statement recorded and filed on 7th July 2015 and the documents filed on an even date. The documents were produced as Pexbt 1-15.
18.Dexbt 1 is a letter dated 16th January, 1914 signed for Lands Oficer. The letter is in respect of Outspan Farm No.1246, West Kenia. Through the letter, the writer informed the addressee that the whole of the farm under reference-Outspan No.1246, West Kenia, was reserved to the Government for possible future requirements. D.W.1 was unable to confirm whether the subject matter of that letter is the same as the subject matter of this suit to wit L.R No.1246/1/3/R.
19.Dexbt 2 is a letter from the 1st plaintiff’s deceased husband G. Mugenyu to the Commissioner of Lands, dated 4th May, 1966. Through the letter the 1st plaintiff’s husband requested the Commissioner of Lands to issue him with a T.O.L in respect of the suit property for grazing purposes. In the letter, the 1st plaintiff’s husband acknowledged that the suit property constituted government land vested in the Ministry of Agriculture, Directorate of Veterinary Services.
20.Dexbt 3 is a T.O.L granted to the 1st plaintiff’s husband pursuant to the request referred to in paragraph 19 above. Dexbt 4 is a T.O.L granted to the 1st plaintiff by the Commissioner of Lands in 1968, after her husband passed on.
21.Dexbt 5 is a letter from the Senior Lands Officer to the 1st plaintiff, dated 6th April 1970, informing the 1st plaintiff that he had received complaints that she had not initiated developments in the suit land and warning her that unless she develops the land it would be repossessed and allocated to other people willing to develop it.
22.Dexbt 6 is a letter from the Provincial Director of Agriculture, Central Province to the D.C, Nyeri dated 23rd October 1973 informing the DC that the allotee of the suit property, the 1st plaintiff herein, had not improved her development in the suit property and advising that the suit property should be re-allocated.
23.Dexbt 7 is a letter from the Director of Veterinary Services to the Commissioner of Lands, dated 12th April 1976 to the Commissioner of Lands recommending that the TOL issued to the 1st plaintiff herein be cancelled on the ground that the land was not being utilized well.
24.Dexbt 8 is a letter from the Commissioner of Lands to the 1st plaintiff, dated 4th November 1976, informing her that the T.O.L issued to her would determine after expiration of three months from 1st November, 1976.
25.Pexbt 9 is a letter from the 1st plaintiff to the Commissioner of Lands dated 28th May 1977 requesting the Commissioner of Lands to reconsider his decision to determine her T.O.L.
26.Dexbt 10 is a letter from the Commissioner of Lands to the D.C, Nyeri dated 26th August, 1977 directing that the suit property be divided between the 1st plaintiff herein and Mr. Wanjau.
27.Dexbt 11 is a letter from the Provincial Commissioner, Central, to the Commissioner of Lands, dated 1st July 1982. The contents of the letter are as follows:-
28.Dexbt 12 is a letter from the Permanent Secretary Ministry of Agriculture to Mr. Simon Muchiri Wanjau dated 23rd May 1984. The contents of the letter are as follows:-
29.Dexbt 13 is a letter from the Deputy Director of Livestock Development to the Commissioner of Lands, dated 3rd June, 1983. Through the letter, the Ministry of Agriculture protested the allocation of the suit property. The contents of the letter are as follows:-
30.Dexbt 14 is a letter from the Permanent Secretary (PS) Ministry of Agriculture to the Commissioner of Lands dated 3rd January, 1996. Through the letter, the P/S addressed the Commissioner of Lands as follows:-
31.Dexbt 15 is a letter from the Permanent Secretary Ministry of Livestock and Fisheries Development to the Permanent Secretary Ministry of Lands. The contents of the letter are as follows:-
32.The defence case is premised on the contents of those documents and the oral testimony of D.W.1 who merely reiterated the contents of those documents in support of the defendants’ contention that the suit property constituted public land hence was not available for alienation in favour of the 1st plaintiff or any other person.
33.It is noteworthy that the above documents were not the only documents relied on by the parties in support of their case, but were the documents admitted in evidence.
Analysis and Determination**__
34.At close of hearing, parties filed submissions which I have read and considered. I find the issues arising from the pleadings, the evidence and the submissions to be:-i.Whether the suit property constituted alienated public land hence unavailable for alienation in favour of the 1st plaintiff or any other person.ii.Whether the plaintiffs has made up a case for being granted the orders sought; andiii.What orders should the court make?
35.On whether the suit property constituted alienated public land hence unavailable for alienation in favour of the 1st plaintiff, it is not in dispute that on 4th May 1966 the 1st plaintiff’s husband, George Mugenyu Kariuki (deceased), applied to the Commissioner of Lands for a Temporary Occupation Licence (TOL) in respect of the suit property. Through the letter, which was produced as Dexbt 2, the 1st plaintiff’s husband addressed the Commissioner of Lands as follows:-
36.From that letter (Dexbt 2), it is clear that as at 1966 when the 1st plaintiff’s husband first applied for the suit land, it constituted alienated public land vested in the Ministry of Agriculture, Veterinary Department. A fact acknowledged by the 1st plaintiff’s husband who was the initial allotee of the suit property.
37.After the 1st plaintiff’s husband died, the 1st plaintiff was allowed to continue living in the suit land by the District Commissioner Nyeri. In that regard, see the letter dated 23rd October 1973 (Dexbt 6) from the Provincial Director of Agriculture, Nyeri Province to the District Commissioner contained in the 2nd defendant’s list of documents filed on 7th July, 2014. The Letter, in part, reads as follows:-
38.On or about 7th July 1981, the Commissioner of Lands offered the suit property to the 1st plaintiff. The terms of the offer were as follows:-
39.The circumstances upon which the 1st plaintiff was issued with the TOL over the suit property are laid bear by the letter referred to in paragraph 3 above (Pexbt 6).
40.On 3rd June 1983, the Deputy Director of Livestock Development (Administration) wrote to the Commissioner of Lands protesting allocation of the suit land. The letter (Dexbt 13) reads as follows:-
41.From the documentary evidence adduced in this case, I entertain no doubt that by the time the Commissioner of Lands allocated the suit land to the 1st plaintiff’s husband and subsequently to the 1st plaintiff, the suit land constituted alienated public land vested in the Ministry of Agriculture and Livestock Development, particularly the Veterinary Department.
42.Whilst in their submissions’ the plaintiffs have submitted that under Section 3 of the Government Lands Act, Cap 280 Laws of Kenya (now repealed), the President through the Commissioner of Lands could alienate land irrespective of any Government department’s interest in the land; That submission is not a proper interpretation of the law as the President’s power under the said provision of the law was limited to alienating unalienated Government land. In the circumstances of this case, the suit land comprised alienated land vested in the Ministry of Land, with a known user. That being the case, it was not available for allocation to the plaintiff or any other person. In that regard see the case of Henry Muthee Kathurima vs. Commissioner of Lands & Another (2015) eKLR where the Court of Appeal stated:-
43.In the decision appealed from, the trial judges, J.G Nyamu (as he then was) and R. Wendo J., inter alia stated:-
44.The above legal position has been restated in many cases including but not limited to the case of Kenya Anti-Corruption Commission vs. Lima Limited & 2 others (2019)eKLR where it was stated:-
45.In the case of Adan Abdirahani Hassan & 2 others v. Registrar of Titles, Ministry of Lands & 2 others (2013)eKLR it was held:-
46.On whether the plaintiffs’ have made up a case for being granted the orders sought, having found that the suit property constituted alienated public land, vested in the Ministry of Agriculture, Department of Veterinary Services when the Commissioner of Lands purported to allocate it to the 1st plaintiff and that the Commissioner of Lands had no power to alienate or offer for alienation the suit property to the 1st plaintiff; I find and hold that contract entered into between the plaintiff and the Commissioner did not confer on the plaintiff any legally protectable interest in the suit land or any legitimate expectation that the TOL given to her would be converted into a long term lease and that she would be issued with a title deed in respect of the suit property. In that regard see the case of Henry Muthee Kathurima (supra) where the Court of Appeal stated:-
47.In view of the foregoing the submission by the plaintiffs that the Government is bound by the commitment it made to the 1st plaintiff that it would register her and issue her with a title deed in respect of the suit property has no leg on which it can stand. In the circumstances of this case, even if the plaintiffs’ had been issued with a title deed in respect of the suit property, the lease would not afford them legal protection as at the time the land was purportedly allocated to the 1st plaintiff, it constituted alienated public land for which the Commissioner of Lands lacked power to alienate in favour of the 1st plaintiff or any other person.
48.Despite having found that the suit property is public land that was irregularly alienated in favour of the 1st plaintiff and that the irregular alienation did not confer any legally protectable interest in the suit property to the 1st plaintiff; I hasten to point out that as occupiers of the suit property, the plaintiffs may not be removed from the suit property without due process of the Law. In that regard see Section 152C of the Land Laws (Amendment) Act, 2016 (herein after referred to as the Act) which provides as follows:-
49.Section 152F of the Act provides that any person served with a notice in terms of Sections 152C or Sections 152 D and E of the Act, may apply to court for relief against the notice.
50.A court seized with an application made under Section 152F of the Act, may confirm the notice and order the person to vacate, cancel, vary, alter or make additions to the notice on such terms as it deems equitable and just; suspend the operation of the notice for any period which the court shall determine; or order for compensation.
51.In the circumstances of this case, the plaintiffs have pleaded that that during the month of January 2014, the 1st defendant through its agents, representatives and/or employees visited the suit property and threatened to forcefully take over the suit property and demolish her property; that on 24th February, 2014 the 1st defendant sent persons to the suit property who menacingly threated the plaintiffs with eviction from the suit property.
52.Through its statement of defence, the 1st defendant denied having threatened to forcefully evict the plaintiffs from the suit property but contended that the plaintiffs should vacate the suit property as it constitutes public land vested in it.
53.Have carefully reviewed the evidence adduced in this case, the plaintiffs did not adduce any evidence capable of proving the alleged threat of eviction by the 1st defendant or the 1st defendant’s agents.
54.Having determined that the suit property constitutes public land that was irregularly alienated in favour of the plaintiffs, I find and hold that they have not made a case for being granted the orders sought. The land being public land vested in the 1st defendant and managed by the 2nd defendant on behalf of the people of Nyeri County, the 2nd defendant may, upon strict compliance with the law on eviction of persons in unlawful occupation of the suit property evict the plaintiffs from the suit property.
55.The upshot of the foregoing is that the plaintiffs’ suit is found to be lacking in merits and dismissed.
56.In the peculiar circumstances of this case, where the plaintiff was put in possession of the suit property by the Government through its agents and even promised to be given the land, it is only fair that parties bear their costs of the suit.
57.The upshot of the foregoing the plaintiffs’ suit is dismissed with no order as to costs.
DATED AND SIGNED AT ITEN THIS 2ND JUNE, 2022.L. N. WAITHAKAJUDGEREAD, SIGNED AND DELIVERED AT NYERI THIS 28TH DAY OF JUNE, 2022.J. O OLOLAJUDGE