a. Whether the Plaintiff was the rightful proprietor of the Parcel No 6107
13.The court has considered the evidence and submissions on record on this issue. The Plaintiff’s evidence was that it was initially the owner of Plot No 180 whereas the Defendant was the owner of Plot 322. The two Plots were separated by an access road. It was the Plaintiff’s evidence that it subdivided Plot 180 into Parcel Nos 2978 and 2979 and later on Parcel 2978 was further sub-divided into Parcel Nos 3608 and 3609. Parcel 3608 was later sub-divided into Parcels 5435, 5436 and 5437. It was the Plaintiff’s further evidence that Parcel 5435 was ultimately sub-divided into Parcels 6107, 6108 and 6109. It was contended that it was on Parcel 6107 that the Defendant had encroached without lawful justification or excuse.
14.It was further the Plaintiff’s evidence that sometime in 2005, the dispute between the parties was reported to the District Land Registrar for resolution and that upon visiting the site the Registrar found that the Defendant had encroached upon Parcel 5435. It was further contended that vide a court order made by this court, the Land Registrar and the District Surveyor visited the disputed property to ascertain its boundaries and that vide a report dated October 14, 2016 and filed on October 17, 2016 it was found that the Defendant had encroached on the Plaintiff’s property which was then still part and parcel of Parcel 5435.
15.The Defendant, on the other hand, testified that he was allocated Plot No 322 in 1963 whereas the Plaintiff was allocated Plot No 180. It was his evidence that sometimes in 1972 the Plaintiff crossed over the access road separating the two Plots and occupied a portion of his Plot No 322. He further stated that despite complaining about the Plaintiff’s land grab to the District Land Registrar and the Settlement Officer no action was taken to remedy the situation. It was his further evidence that in 2005 he filed claim No 26 of 2005 before the Tribunal which heard the dispute and determined the case in his favour. He further testified that the award of the Tribunal was adopted by the Magistrate’s Court at Nyahururu as a judgment of the court in SPM’s LDT Case No 55 of 2005.
16.During cross-examination the Defendant stated that he did not agree with the map for Muruaki Settlement Scheme which was produced by the Plaintiff. He did not also agree with the position of the access road as shown thereon. He contended that there was an original map which was not before court which showed the correct position on the ground. When asked whether he had any evidence to prove that Parcel 5435 belonged to him he answered in the negative but insisted that the land belonged to him and that part of it had been wrongfully given to a primary school even though he was still using part of the land.
17.The court is of the opinion that although the Plaintiff did not produce a complete record of all the green cards for sub-division of the original Plot No 180, the court is satisfied that Parcel 5435 was part and parcel of the original Plot No 180 and not the Defendant’s original Plot No 322 (which later became Parcel 2411 and later on Parcel Nos 2747 and 2748 upon sub-division).
18.The map for the demarcation of Muruaki Settlement Scheme was produced by the Plaintiff as exhibit P-1. The Plaintiff also produced certified copies of the Registry Index Map (RIM) for Muruaki Scheme which showed the relative positions of the original Plot 180 and the original Plot 322. The official records were clear that the two plots were separated by a crescent road and not a straight road as claimed by the Defendant. The Defendant did not produce any other map or RIM which showed a contrary position. Accordingly, the court shall go by the official government records which were tendered in evidence.
19.The court is further satisfied that the suit property belongs to the Plaintiff because there is an official report by the County Land Registrar -Nyandarua dated October 14, 2016 which was prepared pursuant to a court order. The report was produced as exhibit P-8 at the trial. It is evident from the said report that the Registrar found that the Plaintiff was the owner of Parcel 5435 and that the Defendant had encroached upon it to the extent of about 0.6 ha.
20.Finally, a copy of the green card for Parcel 5435 indicated that it was registered in the name of the Plaintiff and that the title was closed in 2013 upon sub-division into Parcel Nos 6107, 6108 and 6109. Accordingly, there is adequate evidence on record to demonstrate that the Plaintiff is the legitimate proprietor of Parcel 6107 which was a sub-division of Parcel 5435.
b. If the answer to (b) is in the affirmative, whether the Defendant has wrongfully interfered with it
21.The court has already found that the Plaintiff is the proprietor of Parcel 6107. It is evident from the material on record and, in particular, the Land Registrar’s report that the Defendant has encroached on a portion of Parcel 5435 which was sub-divided to give rise to Parcel 6107. The Defendant’s own evidence at the trial also confirmed his interference with the Plaintiff’s property. During cross-examination by the Plaintiff’s advocate the Defendant maintained that the land in dispute was his and that he was still utilizing a portion thereof for cultivating livestock fodder. There is also some evidence on record to demonstrate that the Defendant has previously been committed to civil jail for disobeying an interim injunction which restrained him from interfering with the suit property which was then part of Parcel 5435. The court is thus satisfied on the basis of the material on record that the Defendant’s interference with the suit property has been established.
c. Whether the dispute before court has previously been heard and determined by the Tribunal
22.The court has considered the material and submissions on record on this issue. Although the Defendant submitted at length on the issue, the Plaintiff did not submit thereon. The Defendant submitted that the dispute before court was conclusively resolved by the Tribunal in Claim No 26 of 2005 whose award was adopted in Nyahururu PM Land Case No 55 of 2005. It was submitted that the instant suit was res judicata and otherwise an abuse of the court process. It was contended that the Tribunal had jurisdiction to entertain the suit since it was a claim for trespass.
23.The court has perused the record of the proceedings in PM Land Case No 55 of 2005. The original record of proceedings of the Tribunal is not in the file. The original award of the Tribunal is also not in the file. However, it is evident from the order of the Magistrate’s Court adopting the award that the Tribunal was dealing with a dispute concerning Parcel 2747 and had made, inter alia, the following awards:a.That the directors of the Plaintiff should give back to the claimant his portion of land they had ‘fraudulently’ taken.b.That the directors of the Plaintiff should pay the claimant mesne profits at the rate of Kshs 3,000/= per acre per year from January 1980 until the date the land is transferred back to the claimant.c.That the directors of the Plaintiff should reimburse the claimant his expenses of Kshs 80,000/= incurred on the disputed since 1979.d.If the answer to (c) is in the affirmative what is the legal consequence thereof
24.It is evident from the material on record that by the time the Tribunal heard and determined the dispute, the Plaintiff was the registered as owner of the disputed land and that is why it ordered that mesne profits shall be payable until the said land was transferred to the claimant. It is also evident that the Tribunal held that the Plaintiff’s directors had fraudulently acquired a portion of the Defendant’s land. It was not a case of trespass as submitted by the Defendant’s advocate in the instant suit. The Plaintiff was already registered as owner of the disputed property hence the reason it was required to transfer it back to the claimant. That cannot constitute trespass as known to law. The court is of the opinion that it was clearly a case involving title to land.
25.Under Section 3(1) of the Land Disputes Tribunals Act 1990 which was then in force the jurisdiction of the Tribunal was stipulated as follows:
26.The court is of the opinion that the nature of the dispute which was presented before the Tribunal and determined by it had nothing to do with trespass to land as contended by the Defendant. It was a claim for alleged fraudulent acquisition of a portion of the Defendant’s land since it was land which had already been registered in the name of the Plaintiff. Accordingly, the Tribunal acted without jurisdiction in purporting to entertain and determine the claim which related to title to land.
29.The court is thus of the opinion that the Tribunal had no jurisdiction to entertain the claim and to make the award it made. It was a Tribunal without competent jurisdiction hence its award was a nullity. The subsequent adoption of the award by the subordinate court was equally a nullity and of no legal consequence. Accordingly, the court is unable to agree with the Defendant’s submission that the Plaintiff’s suit is res judicata or an abuse of the court process.