REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 517 OF 2007

KHALIF SHEIKH ADAN …………………….…………………………………

PLAINTIFF

VERSUS

THE ATTORNEY GENERAL ……………………….………………………

DEFENDANT

PLAINTIFF’S SUBMISSIONS

May it please Your Ladyship,

PLEADINGS

PLAINT

This suit was instituted by way of Plaint dated the 3 rd of July 2007 and filed
herein on the 5th of July 2007. Therein the Plaintiff averred that on the 24th of
July 1998, he was allotted the suit property namely Garissa Municipality Block
II/126 also known as Residential Plot ‘C’, after paying all the requisite
payments for such allotment. On the 20th of November 2000, the Plaintiff
was issued with a Certificate of Lease under the Registered Lands Act, Cap
300, by the Commissioner of Lands.

On the 19th of April 2006, the Defendant wrote a letter to the Plaintiff
alleging that the said allotment and subsequent registration were void as the
suit property had been reserved by the government for tree nurseries. On the
17th of August 2006, the Plaintiff wrote to the Ministry of Environment and
Natural Resources stating that the suit property had been illegally encroached
upon by the Provincial Forest Department who were claiming possession.
The Plaintiff consequently filed the current suit praying inter alia for a
restraining order against the Defendant and a declaration that the suit
property belongs to the Plaintiff as the registered owner, that his title
documents are protected by sanctity of title and the rule of law and finally that
his right to have protection from deprivation of property is protected under
the constitution.

DEFENCE
The Defendant filed a defence dated the 6th of August 2007 and filed herein on
the 9th of August 2007. Therein the Defendant denying the Plaintiff’s
averments argued inter alia that the suit property was at all material times
unalienated government land and therefore was not available for allocation.

REPLY TO DEFENCE

The Plaintiff subsequently filed a reply to defence dated the 31 st of August

2007 and filed herein on the 5 th of September 2007. Therein the Plaintiff
reiterated the averments made in the Plaint.

ISSUES

The Plaintiff invited the Defendant to file an agreed List of Issues and when
the Defendant failed to respond, filed its list of issues on the 28th March 2008.
The issues are outlined as follows:-

1. Whether or not the Plaintiff was allocated the parcel of land being Plan No.
326/98/35 by a letter of Allotment dated 24 th July 1998, then referred to as
Unsurveyed Residential Plot “C” Garissa.

2. Whether or not the Plaintiff met the allotment requirement and was
subsequently issued with a Certificate of Lease under the Registered Land
Act, Cap 300 on or about 20th November 2000.

3. Whether or not the Plaintiff is the registered owner of the said property
(suit property) namely Title No. GARISSA MUNICIPALITY BLOCK
II/126.
4. Whether or not the Residential Plot “C”, GARISSA MUNICIPALITY
BLOCK II/126 was unalienated government land and available for
allocation and/or grant.

5. Whether it is the Plaintiff or the Defendant and more particularly the

Provincial Forest Department that is encroaching and/or trespassing on
the suit title.

6. Whether any party has suffered loss and damage as a consequence.

7. Is the Plaintiff entitled to peaceful and quiet possession and occupation of

the suit property?

8. Is the title document of the suit property held by the Plaintiff protected by
the sanctity of the title and the Rule of Law?

9. Whether or not the Plaintiff has a constitutional right to have protection

from deprivation of the property (suit property), which can only be
acquired by compulsory acquisition.

10. Who should bare the costs of the suit?

ORAL AND DOCUMENTARY EVIDENCE

The Plaintiff filed a List of Documents on the 30 th July 2008 while the
Defendant filed its List of Documents on the 21st July 2010.

At the hearing of this matter, the Plaintiff testified and produced as evidence
in Court the Documents listed in his List of Documents which we shall submit
on hereinafter.
On the other hand, the defendant failed to produce any witness even after
several adjournments and indulgence by the Court.
The hearing was eventually closed without any oral evidence from the
defendant and the documents filed in Its List of Documents were therefore not
produced.

PLAINTIFF’S EVIDENCE
The Plaintiff, KHALIF SHEIKH ADAN, testified under oath as PW 1 and was
the sole witness.

The Plaintiff testified that he was issued with a letter of allotment by the
Commissioner of Lands dated 24 th July 1998 for the suit property. The same
was referred to as unsurveyed Residential Plot C Garissa and required him to
pay Kshs. 42,997.00 on his acceptance. He confirmed formally accepting the
allotment and paying the requisite fee. He produced as evidence a copy of the
Letter of Allotment along with a Part Development Plan for the area.

The Plaintiff also produced a copy of a Letter from Commissioner of Lands

dated 15th December 1998 to the Director of Surveys in which letter, the
Commissioner of Lands advised the Director of Survey to survey the plot (suit
property).

In further support of his case, the plaintiff testified that the Local Authority,
Municipal Council of Garissa, acknowledged the allotment and confirmed vide
a Letter from Town Clerk to the Commissioner of Lands dated 28 th January
2000 that it had no objection to the issuing of title documents to the Plaintiff
over the suit property. The letter was also produced as an exhibit.

Vide a Letter dated 4th October 2000 the Commissioner of Lands forwarded for
registration the lease documents for the suit property in favour of the Plaintiff.
The letter was also produced as an exhibit before the Court.

Subsequently the Plaintiff was issued with Lease for L.R NO.
GARISSA/MUNICIPALITY BLOCK 11/126 on the 2nd of September 2000 in
his favour. A copy of the Lease was also produced in Court as an exhibit.
The Plaintiff confirmed that the process was finalized by a Certificate of Lease
for L.R No. GARISSA MUNICIPALITY BLOCK 11/126 registered on the 20th
of September 2000 in his favour and produced the same as an exhibit.

The Plaintiff also confirmed to Court that he paid all dues to the Local
Government and Ministry of Lands in terms of Land Rent and fees and
produced as exhibits a copy of Receipt dated 20 th November 2000 for Kshs.
125 from Department of Lands for Certificate of Title for the suit property, a
receipt from Garissa Municipal Council dated 19th September 2005 for
payment of Annual Rent for suit title and a receipt from Garissa Municipal
Council dated 7th July 2006 for Kshs. 4,500/= being payment for building plan
approval.

The plaintiff took possession of the suit Property, fenced it and had quite and
peaceful possession until a later claim by the Forest Department. He testified
that he made inquiries with the Ministry of Lands which led to the Permanent
Secretary asking the Commissioner of Lands to shed light on the position of
the title. He produced as an exhibit a copy of the Letter of Allotment with
hand written remarks form the Permanent Secretary to Commissioner of
Lands.

By a reply dated 1st September 2005 the Commissioner of Lands wrote to the
Permanent Secretary, Ministry of Lands & Housing, confirming that the
original use of the suit property was for low density residential housing as per
the approved Development Plan. He also produced a copy of that letter as an
exhibit.

The genesis of this suit was a Letter dated 19 th July 2006 from the Ministry of
Environment and Natural resources to the Plaintiff alleging that the suit
property was illegally allocated to him. The said letter was also produced as a
Plaintiff’s exhibit.

As statutorily required the Plaintiff issued a 30 days demand letter to the

Defendant giving his notice of intention to institute proceedings against the
Attorney General. The Notice produced as an exhibit is dated 13 th October
2006.

DEFENDANT’S CASE

As earlier said, the defendant did not produce any witness and no documents
were therefore produced before the Court in support of the Defendant’s case.

This Court shall therefore analysis only the Plaintiff’s evidence (oral and
documentary) for a determination.

Your Ladyship, in our humble submission, the issues you need to address to
resolve the dispute between the parties before the court can be summarized
as follows:-

1. What constitutes Government land?

2. Who is the lawful registered owner of the suit property, of all that piece
of land known as GARISSA MUNICIPALITY BLOCK II/126. And what
are the legal consequences of such ownership?
3. What is the legal status of the Defendant in relation to the suit property,
and what rights are available to the Plaintiff?
4. What is the legal claim/defence advanced by the Defendant?
5. Who pays the cost of the suit?

What constitutes Public / Government Land?

Your Ladyship, this is the first issue that needs your legal determination.

At all material time Public / Government Land comprises of:

(a) Unalienated government land which is land not leased to any other
person or in respect of which the commissioner has not issued any
letter of allotment,
(b)Trust land vested in county councils under the Trust Lands Act 8,
Chapter IX of the Old Constitution of Kenya,
 (c) Land held by public bodies.

Under the Old Constitution the President had constitutional and

statutory power to grant unalienated land
1. Grants completed by registration under existing laws (in this case R.L.A.
Cap 300 LOK) are protected by the sanctity of title and the rule of
law.

2. The defendant has no powers of nullification of title deeds under the

existing law. Once title has been issued by the President in exercise of
his Constitutional and statutory power then he is functus officio and
as such has no authority in law to revoke such title.

3. Section 75 of the old Constitution states that the Plaintiff is protected

from deprivation of property unless by compulsory acquisition as well as
adequate compensation and right to seek redress in the High Court if
the compensation is not adequate. The same rights are still
guaranteed under Article 40 of the Constitution.

1. ISSUES NUMBER 2: who is the lawful registered owner of the suit

property that is the piece of land known as GARISSA MUNICIPALITY
BLOCK II/126?

A resolution of this issue as between the parties in essence determines

conclusively the entire dispute between the parties. It is not in dispute that
the Plaintiff is the sole registered and lawful owner of the suit property. The
Plaintiff has a title deed to the suit property. The title document has
been produced. The Plaintiff even went further and produced as
evidence documents showing the root of title. Equally important is that
the said title has never been cancelled.

Your Ladyship, we don’t intend to belabor what the sanctity of title to property
connotes and the constitutional place of property in our legal set up. Section
75 of the Old Constitution protected deprivation of property unless by
compulsory acquisition and the same is retained in the Constitution under
Article 40(1) and is quite clear on this, and it states as follows:-

“Subject to Article 65, every person has the right, either

individually or in association with others to acquire and own
property:-

(a) Of any description and,

(b)In any part of Kenya.

Your Ladyship, we cite the case of Wreck Motor Enterprises –vs- The
Commissioner of Land and 3 Others, Civil Appeal No. 71 of 1997
[unreported].

In this case, the court again reiterates the sanctity of title and dismisses
anything that is not grounded on a title. It called for respect for title deeds. It
stated as follows:-

“The suit plot was registered in the name of the Second

Respondent... There is no ambiguity as to the number and
extent of the suit plot and neither are there two separate
and distinct plots..... Title to landed property normally
comes into existence after issuance of a letter of allotment,
meeting the conditions stated in such a letter and actual
issuance thereafter of title document pursuant to Provisions
held”

The same touches only on the sanctity of title and the law on a trespasser. The
law mandates this court to protect Plaintiff’s title and the same must be
respected. That is what the law of the land mandates.

Your Ladyship, it must be appreciated that the Plaintiff before this court is
asserting a constitutional right to property. This right to property is protected
in the Bill of rights. He seeks the assistance of this court to accord him
protection as provided for by the Constitution.
On the other hand for the Defendant to succeed in his defence it must assert a
right under the Constitution that must be quantitatively better than that
asserted by Plaintiff to protect his right to property.

Further as was variously stated by the courts, the sanctity to title and
ownership to private property must be respected as sacrosanct. It is a
Constitutional right that is jealously protected. As was stated by the Court of
Appeal while restating the effect and import of Section 23(1) of the
Registration of Titles Act, Registration of Titles Act, Cap 281 in the case of Dr.
N.K. Ngo’k –vs- Justice Ole Keiwua & Two Others C.A. No. 60 of 1997 .
The Court expressed itself as follows:-

“Section 23(1) of the Act gives an absolute and indefeasible

title to such an owner of the property. The title to such an
owner can only be subject to challenge on grounds of fraud
or misrepresentation to which the owner is provided to be a
party. Such is the sanctity of title bestowed upon the holder
under the Act. It is our law and law takes precedence over
all other alleged equitable rights to title. In fact the Act is
meant to give such sanctity of title. Otherwise the whole
process of registration of titles and the entire system in
relation to ownership of property in Kenya would be placed
in Jeopardy”.

Your Ladyship, the Court of Appeal in this case not only protected the sanctity
of title but even went further. It alludes to the danger and chaos that can and
will engulf the rights to property if the sanctity to title is either not respected
or diluted. We see such a danger in the conduct of the Defendant. It must
never be tolerated, even for a minute!

The East Africa Court of Appeal in Moya Drift Farm Limited –vs-
Theruri [1973] E.A. 114 is a case that restates the law in Kenya. Once a
party shows that he owns or is the registered proprietor of the suit property
the right remedy is for the court to order the immediate eviction of the
trespasser. At page 116, the court states:-

‘’I cannot see how a person could possibly be described as

‘’the absolute and indefeasible owner’’ of land if he could
not cause a trespasser on it to be evicted. The Act gives a
registered proprietor his title on registration and unless
there is any other person lawfully in possession, such as a
tenant, i think that title carries with it Legal possession:
there is nothing in the Act to say or even suggest that his
title is imperfect until he has taken physical possession. In
my opinion, the Appellant Company is clearly entitled to an
Order for eviction. It has proved its title to the land in
dispute and the Defendant has failed to show that he has
any right to be there” per Spry – Vp.”

At pages 117 Sir William Dufus P states:-

“The evidence also established that the Respondent was in
possession of this land and refuses to give up possession
and further that he is a trespasser without any right, title or
interest in the land. In these circumstances the Appellant
was undauntedly entitled to an Order for possession of the
land, and I also agree that this is a proper case to order a
perpetual injunction to issue against the Respondent.”

In Charles Odejo Ochieng –vs- Geoffrey Okumu [1995] eKLR, the Court
of Appeal addressed trespasser to property and the remedy available to the
owner of the property.
The court stated:-

“Trespass is an injury to a possessory right, and therefore

the proper plaintiff in an action of trespass to land is the
person who has title to it or a person who is deemed to have
been in possession at the time of trespass.”
The Court of Appeal further and rightly in our respectful submission
expounded on the Import of what title is and its sanctity. It stated:-

“Moreover, under Section 23(1) of the Registration of Titles

Act Cap 281 a Certificate of title... shall be taken by all
courts as conclusive evidence that the Respondent is the
proprietor of the said land as the absolute and indefeasible
owner thereof, subject to encumbrances, easement,
restrictions, and conditions contained therein or endorsed
thereon, and the title shall not be SUBJECT to challenge
except on the ground of fraud or misrepresentation to
which he in proved to be a party”

A case that is very relevant to the determination of the dispute before the
court is the case of Portland Managements’ Limited –vs- Harte and
Others [1976] 1 ALL E.R. 231. In this case at page 225 the court held that:-
“Where an absolute owner of land brought an action for
trespass against a person alleged to be in possession all that
the owner had to prove was his title and an intention to
regain possession. If the Defendant either admitted the
Plaintiffs’ ownership or was faced with evidence, which the
court accepted that the Plaintiff was in fact the owner, the
burden was on the Defendant to confess and avoid by
setting up a title or right to possession consistent with the
fact of ownership vested in the Plaintiffs”.

Your Ladyship, that is the law in Kenya too. The Defendant to succeed must
show that he has a superior title to the land than held by the Plaintiff.

Your Ladyship, in answering issues Number 1 and 2 we conclude by

submitting as follows:-

First, the Plaintiff is the lawful sole and undisputed registered owners of the
suit property. Your Ladyship, one can confidently submit that if the
Jurisprudence of our courts have shown consistence over the years and
zealous respect of the law in one area of the laws, it is the protection our
courts have given to the sanctity of titles. This is principally because it shows
respect for the Rule of Law. Without such strict adherence to the law, chaos
will rein and the very foundation of our country will go a sunder.

Your Ladyship, from the Jurisprudence expounded upon in the above cases, it
is quite clear that our Jurisprudence as it relates to title deeds is solid, affirm
and Constitutional. Such firm order and constitutional respect for private
property is what the case before you is loudly crying for.

Not according respect to sanctity of title or entertaining the frivolous claims

by the very Government is a recipe for chaos and disaster.

ISUES NUMBER 3 AND 4 What is the Defendant’s case?

The Defendant in Paragraph 6 of its defence alleges that the suit property was
at all material times unalienated government land and therefore was not
available for allocation. This narrative, and this we say very respectfully, is one
of a cock and bull story. Our client’s case is grounded on the Constitutional
Right to private property protection and sanctity of title.

My Lady the Plaintiff has proved his case and we pray for Orders as prayed in
the Plaint.

Thank you Your Ladyship.

DATED AT NAIROBI THIS………………..….DAY

OF…………………………..2012.

----------------------

AHMEDNASIR, ABDIKADIR & COMPANY

ADVOCATES FOR THE PLAINTIFF
DRAWN & FILED BY:
M/s Ahmednasir, Abdikadir & Company
Advocates,
CBA Building,
2nd Floor,
P.O. Box 57731 – 00200
NAIROBI (Ref No. AAC 1813/ 2006)

TO BE SERVED UPON:-

Attorney General
Attorney General’s Chambers
P.O. BOX 40112-00100
NAIROBI