a. Whether the repossession and sub-division of Plot No. 588 by the SFT was regular and lawful
18.The court has considered the material and submissions on record on this issue. The Plaintiff submitted that Plot 588 was properly repossessed because the 3rd Defendant had breached the terms and conditions of allotment. It was submitted that the 3rd Defendant was served with a notice to remedy the breach dated 20.03.1994 and notice of repossession dated 28.03.1995. The Defendants, on the other hand, submitted that there was no evidence to show that those notices were ever served upon the 3rd Defendant hence the SFT was not entitled to repossess Plot 588 in the circumstances.
19.The court has noted that the 3rd Defendant was offered Plot No.588 in 1982 and issued with a letter of allotment in 1983. The material on record shows that he paid 10% deposit but it is not clear from the record whether he paid the balance of 90% in full or at all. He testified at the trial that he could not remember how much he paid and that his receipts were lost when his house on the suit property was destroyed.
20.Be that as it may, the main question for determination herein is not whether or not the 3rd Defendant was actually in breach of any of the terms of allotment but whether due notice was given of his breach and of the intended re-possession. The court has seen copies of the letters which were intended to serve that purpose. The court is not so much concerned with the lack of signature on the copies of those letters. The court is aware that file copies in government files are not always signed. The court is more concerned with the evidence of service of the said letters or notices.
21.It is evident from the material on record that the Plaintiff called an officer from the office of the Director of Land Adjudication & Settlement who testified as PW2. Although PW2 asserted that the requisite notices were issued to the 3rd Defendant, he was unable to produce any evidence of service thereof upon the 3rd Defendant. During cross-examination PW2 stated thus on the letter dated 09.12.1994.
22.On the letter dated 20.03.1995, PW2 stated as follows during cross-examination:
23.It is evident from paragraph 1(d) of the 3rd Defendant’s letter of offer dated 21.05.1982 that repossession had to be preceded by a notice. The said paragraph stipulated that:
24.The court has noted that in its defence to counterclaim SFT did not plead that the 3rd Defendant was in breach of the terms and conditions of allotment of Plot No. 588 and no particulars of breach were pleaded in the defence to counterclaim. The SFT did not also plead that a notice to remedy any breach of conditions was ever served upon the 3rd Defendant. It was not even pleaded that he was served with a notice of re-possession or notice of cancellation of his allotment.
25.The court has also considered the decision in the case of Arthur Matere Otieno -vs- Dorina Matsanza  eKLR which was cited by the Defendants’ advocates on the question of service of notice of repossession by SFT. The court is not prepared to go as far as the High Court went in holding that the SFT had no power of repossession under any circumstances. The court is content to adopt the High Court’s holding on the issue of service. The court is thus of the opinion that in the absence of any evidence of service of the requisite notices upon the 3rd Defendant, the purported repossession and su b-division of Plot 588 was irregular, unlawful and of no legal consequence and did not extinguish the 3rd Defendant’s interest over Plot 588.
b. Whether the allocation of Parcel 1164 to the deceased was fraudulent and unlawful
26.The court has similarly considered the material and submissions on record on this issue. It is evident that this issue is somehow tied to the first issue since the first one impacts on the availability of the land for allocation. It is conceded by all the parties that Parcel 1164 was a sub-division of Plot No. 588. The court has already found and held that the purported repossession and sub-division of Plot No. 588 was irregular and unlawful.
27.It would, therefore, follow that the creation of Parcel 1164 was through an irregular and unlawful process. The deceased could not be lawfully allocated Parcel 1164 since it was not available for allocation in 1995. The entire Plot 588 having been allocated to the 3rd Defendant in 1982, a portion thereof could not be legally reallocated to the deceased without following due process of repossession. As a result, it is not really necessary to determine whether or not there was any fraud in its allocation since it was not available for allocation anyway.
28.The mere fact that the deceased was issued with a letter of offer, made the relevant payments, and was ultimately issued with a title deed could not validate and sanitize the irregular and unlawful manner of allocation. The fact that the deceased may not have been privy to any fraud or illegality would not avail the Plaintiff in view of the provisions of Section 26(1)(b) of the Land Registration Act, 2012. In the case of Elijah Makeri Nyang’wara -vs- Stephen Mungai Njuguna & Another  eKLR which was cited by the Plaintiff it was held, inter alia, that:
d. Whether the 3rd Defendant is entitled to the reliefs sought in the counterclaim
30.The court has found that there was no lawful repossession, sub-division and re-allocation of the 3rd Defendant’s Plot No. 588 of which Parcel 1164 was a sub-division. The court has also found that there was no regular, valid and lawful allocation of Parcel 1164 to the deceased in 1995 upon sub-division of Plot No. 588. The court is thus of the opinion that the Defendants are lawfully in possession of Parcel 1164 being part of Plot No. 588 hence the Plaintiff’s title to Parcel 1164 should be cancelled. In the premises, the court is satisfied that the 3rd Defendant is entitled to the prayers sought in the counterclaim to the extent shown in the final orders.