Dr Silas Malemo Juma accuses the Danish Embassy of unfair termination of contract.
A judge suffered a setback after the Court of Appeal set aside a judgement by the Environment and Land Court (ELC) which had declared him the owner of three parcels of land in Takaungu, Kilifi County.
Appellate judges Gatembu Kairu, Pauline Nyamweya, and Kibaya Laibuta ruled that the ELC erred in concluding that Justice Charles Chemutut had established his case to the required standard.
“That conclusion is based on a misapprehension of the evidence…we are therefore entitled to interfere with the judgment of the ELC,” ruled the appellate court judges.
The Court of Appeal ruled that in allowing Justice Chemutut’s claim, the ELC did not consider or adequately consider critical evidence of Mr Wilson Kibichi, an employee of the Ministry of Lands and the Land Registrar.
“Had the judge done so, no doubt she would have reached a different conclusion,” ruled the three-judge appellate bench on Friday, May 9.
The Court of Appeal noted that for a period of over twenty years, from 1992 when the parcels of land were offered to him to 2013 when he lodged a complaint with NLC, Justice Chemutut’s claim to the properties hinged entirely on a letter of allotment.
ELC had ruled that any title documents held by Peter Walker, Maureen Walker (The Walkers), and Jacqueline Wanjiku were obtained fraudulently, illegally hence null and void.
It also ruled that Peter and Maureen Walker were wrongfully in occupation of the properties, hence trespassers, and were not entitled to enter or remain thereon.
The decision prompted Mr Ketan Doshi, who had sold the land to the Walkers, to appeal the decision of the ELC, arguing that it (ELC) erred by failing to find that a letter of allotment is not a title to property.
Mr Doshi also argued that the ELC erred in finding that Justice Chemutut had met the conditions in the letter of allotment.
He further said that ELC erred in failing to find that the letter of allotment had lapsed and that the property was available for alienation and reallocation to him.
The case at the ELC was instituted by Justice Chemutut against Peter and Maureen Walker.
Justice Chemutut had told the ELC that on March 3, 1992, alongside one G. Somba Kivalya, he applied for allocation of residential plots to the Commissioner of Lands and that his application was approved and endorsed by the late former President Daniel Arap Moi, whereupon the properties were allocated to him.
The claim by Justice Chemutut against the Walkers was founded on trespass on the basis that they had, without any colour of right, authority or consent, entered and trespassed on the properties in respect of which he claimed to be the registered proprietor.
However, the Court of Appeal noted that Justice Chemutut had the burden, beyond proof on a balance of probabilities required in ordinary civil cases, to impeach the title to the properties in favour of the Walkers.
It also noted that by the time Mr Doshi became registered as proprietor of the land, Justice Chemutut did not have title to the three parcels of land.
“As already noted, for over twenty years (attributing his inaction to exigencies of duty of his office as judge), he did not perfect his title and arguably the offer contained in the letter of allotment had in the meantime lapsed,” ruled the Court of Appeal on Friday.
The appellate court further said that by the time Justice Chemutut moved to the NLC in 2012, the titles in respect of the plots in favour of Mr Doshi had long since been in existence, having been issued in 2003.
“Based on the evidence of Mr Kibichi and the Land Registrar, when the provisional certificates of title for parcels numbers MN/III/432-435 were being issued in 2017 pursuant to the orders granted by the ELC, those parcel numbers no longer existed,” ruled the Court of Appeal.
The Court of Appeal noted that the Walkers provided evidence that they purchased the land from Mr. Doshi on the basis of an Agreement for Sale dated May 12, 2006, and the properties transferred to them by instrument of Transfer dated June 22, 2006, and registered on August 3, 2006.
It further said that under Section 23 of the repealed Registration of Titles Act and Section 26 of the Land Registration Act, they became absolute and indefeasible owners absent fraud, misrepresentation or unless it was shown that the same was acquired illegally, unprocedurally or through a corrupt scheme, none of which has been proved.
“In our view, the title of Mr & Mrs Walker was demonstrably indefeasible, beyond the sweeping claim by Justice Chemutut that the titles in favour of Mr. & Mrs. Walker were obtained illegally and unlawfully,” ruled the Court of Appeal.
It also noted that no particulars of fraud were pleaded against them (the Walkers), and neither was any evidence led in support of those claims.
