The Plaintiff’s Evidence
8.At the hearing, the plaintiff testified as PW1 and called four witnesses. In his evidence, the plaintiff reiterated the facts contained in the amended plaint and adopted his witness statement dated May 31, 2021 as his evidence-in-chief and prayed for the reliefs in the amended plaint. The plaintiff stated that he was getting an income of about Kshs30,000/= per month from the premises on the plot that he had rented out. The plaintiff produced a letter of allotment dated February 7, 1994, a PDP from director of survey (F/R No 230/171 folio no 253) for Chuka Town, letters of administration issued to Rebecca Njiru in succession cause No 45 of 1986 in respect of the estate of Japhet Njiru, transfer of plot No M26B, letters of administration issued to the plaintiff in succession cause No 66 of 2002, certificate of death of Rebecca M Njiru, certificate of confirmation of grant in succession cause No 66 of 2002, reviewed certificate of confirmation in the same cause, confirmation letter from the administrator Chuka township that the plaintiff is the owner of the suit plot, bundle of land rates payment receipts, approved plan by the municipal council, notice of demolition, photographs, receipts for charges for valuation, demand letter and statutory notice to the Attorney General as p exhibits 1 to 16 (e ) respectively.
9.The plaintiff testified that there is a difference between parcel No 26 and plot No M26B, adding that he came to know the registered owner of parcel No 26 as one Njeru Kanyi.
10.When cross-examined by Mr Mugambi, learned state counsel for the Attorney General for the 1st and 6th defendants, the plaintiff reiterated that his building that was demolished was on a plot that he claims. He stated that he has produced the letter of allotment as proof of ownership and is used to process title. He confirmed that a letter of allotment is an offer. He further confirmed that he withdrew the case against the 2nd and 3rd defendants.
11.When re-examined by Mr Mugo, learned counsel for the plaintiff, the plaintiff stated that he has sued the 5th defendant because she was the one demolishing the building while the 4th defendant were given the contract to construct the road by the 1st defendant.
12.PW2 was Cecilia Mukiri, the administrator of Chuka sub-county, and Chuka town is within her area of jurisdiction. She testified that she coordinates the devolved functions of the county government of Tharaka Nithi and her work entails keeping some records, while others are kept by the other departments.
13.According to PW2, plot No M26B measuring 20 feet by 120 feet is within the planned commercial zone 513 in Chuka township and is registered in the name of the plaintiff. PW2 referred to the letter of confirmation dated May 19, 2022 which she stated she obtained from the senior physical planner, Tharaka Nithi county, who also provided a PDP extract for plot No M26 and an extract of the register which shows that plot No m26 was subdivided into plot M26A (1) in the name of Richard Gakuri and M26A2 belonging to Elias Mucheni and M26B in the name of the plaintiff. PW2 produced the said documents as pexhibits 21 (a) and (c) respectively.
14.When cross-examined by Ms Kendi learned counsel for the 1st and 6th defendants and re-examined by Mr Mugo, PW2 confirmed that her work did not include land survey and was not the custodian of land records. While referred to the letter of allotment, PW2 could not confirm whether stand premium was paid or whether there was acceptance or if the offer lapsed. PW2 could not also explain why the physical planner used the words “currently not developed”.
15.PW3 was Cyprian Kirera Irugu a registered valuer and licensed to practice valuation. He prepared the report dated April 24, 2020 which he produced as pexhibit 14 and confirmed that he charged for the services rendered and issued a receipt which was produced as pexhibit 15.
16.PW3 testified that he looked at the survey plan, rates demand notices, approved drawings and also inspected the property which was also identified by the plaintiff. He stated that the entire property was not demolished. He assessed the damage at Kshs 2,893,170/= and the land at Kshs 406,640/=.
17.PW4 was Zachary Thuku Kananu, a licensed surveyor under the Survey Act under the name of Kananu Geospecial Surveyors Consultants. He testified that pursuant to instructions, he investigated and filed a report over plot No M26B, a subdivision of plot No M26 parcel No 227. PW4 stated that a plot number is not registered with the director of surveys while a parcel number refers to an area that is surveyed, beaconed, issued with a parcel number by the director of survey and a plan thereof issued. He stated that parcel No Chuka 227 is surveyed and approved by the director of survey and that pexhibit 2 is a copy of the survey plan from survey of Kenya.
18.PW4 testified that in carrying out the exercise, he referred to survey plan F/R 253/67 done by S.N Wambaru (deceased) which was authenticated on October 4, 1985 and which comprised parcel Nos 202 to 259 in which parcel No 227 was part of. He stated that surveyors who are recognized to carry out survey works are licensed surveyors and government surveyors, and that the director of survey can authorize a surveyor who is not in his department to do survey work and the authorization must be in written. That a surveyor working with a parastatal must have a letter from the director.
19.PW4 testified that he did not do the beacons for plot No M26B, but confirmed that the said plot is part of parcel No 227. That he visited the area in question and found out that plot No 227 was demarcated into three portions: M26A(1) belonging to Richard Kagure, M26A(2) belonging to Elias Micheni and M26B belonging to Frankline Japeth Njiru. That he found that the upper parts of portions M26A and M26B were demolished. That the area for plot No 26A and M26B were demolished. That the area for plot No 26A(2) that was demolished was 0.0043 hectares and for plot No. M26B, the area demolished was 0.050 hectares.
20.It was the evidence of PW4 that properties which have been approved by the director of surveys cannot include roads, adding that the roads must be outside the parcels. That plot Nos M26B and M26A(2) could not be on the road. PW4 produced the report he prepared as pexhibit 17 and the receipt as pexhibit 18.
21.When cross-examined by Ms Kendi learned counsel for the 1st and 6th defendants, PW4 stated that plot No M26B and M26A2 are within parcel No 227 which had been subdivided. He testified that parcel No 227 was surveyed in the year 1995, though the letter of allotment (pexhibit 1) states that the plot was unsurveyed. He confirmed that page 2, paragraph 2 of the letter of allotment states that one had to be clear when constructing on an unsurveyed plot for if one overstepped, the reconstruction would be borne by the owner.
22.When re-examined by Mr Mugo learned counsel for the plaintiff, PW1 stated that he was taken around the suit property by the owner and he confirmed that no construction was undertaken outside the surveyed plot No 227.
23.PW5 was Mwenda Kithinji Duncan, a senior physical planner working with the Tharaka Nithi county government. He testified that his work entails preparation of physical and land use development plans. He stated that he was conversant with all the plots and properties in Tharaka Nithi county, which includes plots in Chuka township.
24.PW5 testified that he authored the letter of confirmation of ownership dated May 19, 2022 produced as pexhibits 21 (a), (b) and (c). He stated that he obtained the details from the plot register and confirmed that plot No M26b measures 20 feet by 120 feet. He however stated that there was an error on his letter when he stated that it was not developed, yet there is a building on the plot. He confirmed that the plot was within the plan of Chuka township and that the plot was not on a road reserve. He testified that as per the register, plot No M26B is registered in the name of Frankline Japheth Njiru, the plaintiff herein and measures 20 feet by 120 feet.
25.When cross-examined by Ms Kendi, PW5 confirmed that they did not keep all the ownership documents, but only kept a copy of the register. He reiterated that he authored the letter dated May 19, 2022 which stated that the plot was currently not developed, though he pointed out that that was an error and which he wrote to the owner to clarify. He admitted that pexhibit 1 indicated that the plot No M26 Chuka is unsurveyed and set out the conditions the allotee needed to meet including stating that if a building is constructed on a road reserve, the owner of the building will bear the costs of the demolition of such buildings. He further confirmed that once one is given a letter of offer, he/she is supposed to make payment in acceptance within 30 days. PW5 stated that he was not aware whether these conditions were met within 30 days.
26.The case against the 2nd and 3rd defendants was withdrawn by the plaintiff while the 4th and 5th defendants never entered appearance and/or file defence.
27.The 1st and 6th defendants filed a joint defence dated June 15, 2020 wherein they denied the averments in the plaint. The 1st and 6th defendants denied that the plaintiff has been the legally registered owner of parcel No 26B Chuka township and averred that the suit land is the property of the republic of Kenya and that the plaintiff interest in the suit land was fraudulently and illegally procured contrary to the provisions of the Government Lands Act and the repealed constitution and all enabling laws.
28.The 1st and 6th defendants listed particulars of fraud and illegality as follows:i)Making application for property that was being reserved for government purposes which application was never approved hence has no locus over the suit property.ii)Unduly influencing municipal council to allot land that was not within their jurisdiction and without issuance of any lease certificate.iii)In consort with the municipal council failure to comply with the provisions of the Government Land Act (GLA).iv)In consort with the commissioner of lands, failing to comply with section 9, 12 and 13 of the Government Land Act (GLA).
29.The 1st and 6th defendants further denied the use and further developments in the suit land. They reiterated that the suit land was reserved for government purpose, was not available for disposal to private entities and by dint of the doctrine of radical title ought to revert back to the government as the owner.
30.It is the 1st and 6th defendants’ case that they are strangers to all the allegations set out in the plaint and aver that they are strangers to all the said allegations and put the plaintiff to strict proof thereof. Further, the 1st and 6th defendants aver that the suit does not disclose any reasonable cause of action, is misconceived and not properly grounded in law and prayed for the dismissal of the suit with costs.
Analysis And Determination
48.The court has carefully considered the pleadings and the evidence adduced. The court has also taken into account the submissions filed, the cited authorities and the relevant provisions of law. The court identifies the following issues for determination:i.Whether the plaintiff has satisfied the court as to ownership of the suit propertyii.Whether the property had encroached into a road or road reserve.iii.Whether the defendants are liable for the demolition.iv.Whether the plaintiff is entitled to the orders sought.
Whether the plaintiff has satisfied the court as to ownership of the suit property
49.The plaintiff’s case is that he is the owner of the suit property known as plot No M26B Chuka Township measuring 20 feet by 120 feet. The plaintiff avers that he inherited the said plot which was subdivision of plot No M26 parcel No 227 from his mother, Rebecca Njiru who had in turn inherited the plot from Japheth Njiru, the plaintiff’s father. That at one time, the property was referred to as plot No 26 which was allocated to Japheth Njiru and Richard Gakuuri. Among the documents produced by the plaintiff as exhibits in support of his case are a letter of allotment dated February 7, 1994 in the names of Richard Gakuri and Rebecca Njiru in respect of an unsurveyed plot No M26 Chuka, a PDD, grant of letters of administration in respect of the estate of Japheth Njeru and the estate of Rebecca M Njiru, certificate of confirmation of a grant in respect to the said estates, death certificate, a letter dated September 16, 2020 from the sub-county administrator, Chuka, confirming that plot No M26B is in the name of the plaintiff, land bills and receipts for payment of rates, an approved plan, notice to remove structures on road reserve and photographs. Other documents are valuation reports and correspondences among others.
50.Looking at the said documents, the main ownership document relied on by the plaintiff is the letter of allotment and the PDP produced as pexhibit 1 and 2 respectively.
52.In the case of Joseph Arap Ng’ok v Justice Moijo Ole Keiyua (supra), the Court of Appeal stated thus:
53.In this case, the original allotees were being offered government land and the letter of allotment was subject to, and the grant was to be made under the provisions of the Government Lands Act [cap 280), and title issued either under the Registration of Titles Act [cap 281) or the Registered Land Act [cap 300] (all repealed). It is also clear from the letter of allotment the plot was given subject to the allotees meeting certain conditions.
55.And as rightly submitted by the 1st and 6th defendants, the second step would be for the part development plan to be drawn up and approved by the commissioner of lands, the third step involves the determination of certain matters by the commissioner of lands which are listed under section 11 of the Government Lands Act (repealed), then gazettement and sale as provided under section 13 and 15 of the said Act.
56.The next step would be for the issuance of an allotment letter to the allotee as in the present case. It has however been held that a letter of allotment per se is nothing but an invitation to treat. It is not capable of conferring an interest in land, being nothing more than an offer, since the allotee is expected to meet the stipulated conditions.
57.In this case, the original allotees were required to comply with the conditions stipulated in the letter of allotment dated February 7, 1994 within thirty (30) days. In this case, the plaintiff has not produced any evidence to show that the original allotees met the conditions stipulated in the said letter of allotment. This court cannot rely on the correspondence that simply give a confirmation that the plot is in the name of the plaintiff. The question that arises is if the allotees had complied with the conditions set out in the letter of allotment, then the cadastral survey, its authentication and approval by the director of surveys and issuance of a beacon certificate. The survey process precipitates the issuance of a land reference number and finally the issuance of a certificate of lease. None of these processes have been shown to the court by plaintiff herein.
58.And even assuming that the suit plot was surveyed as alleged by the plaintiff, the court has noted that the size of the plot allotted to the original allotees was approximately 0.036 hectares. However, the survey report marked pexhibit 17 that was produced by Zachary Thuku Kananu who testified as PW4 has given the area of the suit plot as 0.0469 hectares. If the original allotees were allocated a plot measuring 0.036 hectares and that is what the plaintiff inherited, then the question that arises is where did the extra 0.0109 hectares come from? There was no evidence adduced that there was any amendment made on the original letter of allotment dated February 7, 1994 which was for an area measuring 0.036 hectares, or that another letter of allotment was issued for the additional area measuring 0.0109 hectares. The only presumption is that the extra area is a road reserve. Therefore, it is my finding that the extra area of 0.0109 hectares is on a road reserve and the plaintiff is the one who had encroached on the road reserve.
Whether the defendants are liable for the demolition and whether the plaintiff is entitled to the orders sought
59.Having perused the evidence adduced, and specifically the letter of allotment marked pexhbit 1, the court finds that the plaintiff was only entitled to a portion measuring 0.036 hectares. From the documents relied on by the plaintiff, and in particular the report marked pexhibit 17, it is apparent that the plaintiff’s building may have been put up on an area outside the one that was allocated, and may as well be on a road reserve.
60.This court has also noted that the plot that was allocated was in respect of an unsurveyed plot, but there was also a warning given to the allotees that at the time they commence building, they should “exercise the greatest care to ensure that any building or other works are contained within the boundaries of the plot.” Further, the allotees were warned that in the event they inadvertently overstep the boundaries, the cost of removal and reconstruction must be borne by them.
61.Having evaluated the matter and the evidence adduced, and considering that the plaintiff did not confine his building within the area that was given to him, and in the absence of any evidence to prove where the extra area came from, it is my finding that the plaintiff has failed to prove his case on a balance of probabilities.
62.Consequently, this suit fails and the same is hereby dismissed with costs to the 1st and 6th defendants.