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Judge fights to reclaim land he had for 10 years

BUSINESS
By Daniel Chege | March 25th 2021
Environment and Lands Court judge Sila Munyao before the Nakuru Lands Courts on October 27, 2020. [Daniel Chege, Standard.]

A judge is fighting to prove ownership of a piece of land that was in his possession for 10 years.

Justice Sila Munyao of the Environment and Land Court said he went through all the necessary steps while acquiring the 0.048-hectare property in Nakuru.

However, he still got enmeshed in a web of litigation involving a double claim.

Records before the Nakuru Law Courts show the judge and his wife Linda Chepkorir obtained documentation demonstrating the history of the land from the land registry, including certificate of search, past leases, rent clearance certificate, consent to transfer and receipts of past payments.

“Valuation for stamp duty was done on October 12, 2010 and we paid using KRA declaration slip. We applied for registration of the transfer and paid for registration.

“The transfer was registered and a certificate of lease dated December 2, 2010 issued to us,” Justice Munyao told the court.

He took possession of the land in 2010 and the following year fenced it off.

He would visit the site routinely until October 7, 2018 when he found two men preparing to fence off the property.

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The piece of land had changed hands without his knowledge. One Peter Ondande was the new owner, having been issued with a lease certificate on September 6, 2018.

Ondade had bought the land from one Ms Sally Cherutich, who had been issued with a Certificate of Lease a month earlier, on August 9, before selling it a few weeks later.

“She sold the land within three weeks. This was even before her certificate of lease was issued. No explanation is given as to why she sold it so quickly.

“We have never sold the land to anyone since we bought it. We still hold the original certificate of lease,” Justice Munyao said.

The judge said he reported the matter to the police and investigations were launched. The Chief Lands Registrar had said his file was “missing or non-existent” and even Justice Munyao’s copy of title could not then be certified.

When Gildine Gatwiri Karani, the Principal Land Registration Officer based at the Chief Land Registrar’s office in Ardhi House, Nairobi, appeared before the court last month, she confirmed Cherutich’s lease originated from her office.

She, however, said she had nothing to do with it.

“We don’t create leases but we just forward them. I am not familiar with the process of creation or issuance of leases.

“A land officer is the right person to shed light on creation of leases. I did not have a chance to look at the file in respect of the lease at the land administration department,” she said.

While admitting it is usual for files to go missing at the lands department, Karani also dropped another bombshell: “From the contents of DExb 4, there is a possibility that file No 197888 was not missing or non-existent.

“I am not aware if any efforts were made to trace the file. If there was a property issued a lease, then the first lease would take priority.”

Still, according to her, the first entry on that land was Cherutich’s.

Another lands official at the Nakuru office, Raymond Kubai, testified that Cherutich’s lease came from Nairobi. The lease was booked and registered on the same day by the Nakuru office.

“We only registered documents forwarded to us from Nairobi. I am not aware of any member of our office who was charged with fraud in respect to the property. “We did the registration in good faith as per the documents that were forwarded to us,” said Kubai, who is also an advocate.

Kubai said two white cards or two green cards should not exist for the same property.

Upon further cross-examination, it emerged that Cherutich’s process of ownership of the property had defaulted completion of an allotment offer back in 1997.

“A letter of allotment is an offer which has to be accepted.

“The allottee has to pay the premium as indicated in the letter for the land to be allocated to him,” he testified.

In this case, the letter of allotment was dated February 8,1997, requiring Cherutich to pay Sh18,235. She would pay the money on May 2018.

“The condition was that they pay within 30 days from February 8, 1997,” he said.

Kubai said the Nakuru office had “no other role to play” apart from registering Cherutich’s lease as received from the Chief Lands Registrar. He too distanced his office from the matter.

But Kubai also made another startling revelation in his testimony. After listing the trove of evidence provided by Justice Munyao -- copies of the 2003 lease, 2010 transfer, 2010 certificate of search, 2010 sale agreement, 2010 letter of consent from Commissioner of Lands, stamp duty and rate payments -- Kubai said he wished they had known better.

He said: “If all these copies were made available prior to issuance of the 1st defendant’s certificate of lease, we would not have registered her lease or issued a certificate of lease to her.” The fact that Justice Munyao transacted on the land, he reckoned, there must have been a register in his favour.

To conduct an official search as the one Justice Munyao conducted, one must present a copy of title.

But he refused to assign “fraudulent” status to the registered lease only asserting that “if two titles exist for one parcel of land, then there must be fraud involved.”

In his evidence, the file number 197888 alluded to in a letter responding to Justice Munyao’s complaint contrasts the file number 308230 in favour of Cherutich’s claim.

The mathematical numbering of the two file suggests the former was created prior to the latter. Hearing on the matter will proceed on June 22. 

Clarification and apology:

An earlier version of this story published on February 11, 2021 suggested the documents tabled by Justice Munyao to back up his ownership claim on the land were deemed fake during the hearing on February 9, 2021. We note that the witnesses who appeared in court on the said date did not ascribe fake or fraudulent status to any documents by either parties to the suit, including Justice Munyao’s. We take this opportunity to apologise to the judge for the embarrassment caused. The matter is also still in court.

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