Judge sues in land dispute
By Daniel Chege | February 10th 2021
A judge in Nakuru came face to face with the painful reality of multiple land allocations in the country when it dawned on him that documents he holds for a prime parcel of land may be fake.
Justice Sila Munyao who sued Sally Cheruitich for the land measuring 0.048 hectares located in Nakuru's Naka Estate, may have joined the growing list of people who are victims of double allocation of land.
Ironically Justice Munyao sits in the Environment and Land Court that is legally mandated to listen and determine cases on land.
On Tuesday afternoon, Nakuru Land Registrar Raymond Gitonga testified before Justice Dalmas Ohungo that Mr Munyao was in possession of documents that do not exist in the land registry.
Munyao had rushed to court to challenge Cherutich's claim on the parcel saying he was in possession of documents to prove ownership.
The judge was in possession of a certificate of lease, transfer documents from Samuel Kiplangat to him dated October 27, 2010, sale agreement dated July 2, 2010, and receipts for payments of premium stand and rent.
He was also in possession of a letter of consent dated July 1, 2010, signed by the then Commissioner of Lands Sammy Komen Mwaita.
However, in his testimony, Mr. Gitonga told Judge Ohungo that the registry only recognizes Cherutich’s documents that were on record at the registry.
“I personally searched in the registry and found no other documentation; lease, green or white card, records, over the suit land, save for Cherutich’s,” testified Gitonga.
He maintained that there can never be two sets of documents for the same land with different names. “If two documents exist, then one must be a forgery.”
He added that no other document can challenge the certificate of lease for the suit land, issued to Cherutich on September 6, 2018, and a white card she possesses of the land.
According to Gitonga, Cherutich was issued with the certificate of lease following a recommendation by the Chief Land Registrar in Nairobi.
He testified that the office in Nakuru received a lease for the land dated August 9, 2018, in the name Sally Cherutich from Nairobi with reference number 308230.
He told the court that they booked the lease for registration on September 6, 2018.
“The registration was done on the same day and Cherutich was issued with a Certificate of lease and a white card for the suit property in good faith,” testified Gitonga.
Gitonga said there was no green card for the land before September 6, 2018, which would imply that the land belonged to the Government of Kenya.
However, Gitonga said they received a complaint from Munyao on October 11, 2018, over the suit properties and District Land Registrar put a restriction on the land.
He said that Munyao presented documents forcing the registry to write a letter to Nairobi dated October 16, the same year, for confirmation of existence of other contrary documents.
“We got a response on December 5, 2018. The letter stated that Cherutich’s documents were the legal and correct documents for the land and there were no other documents,” he said.
He added that the Chief Land Registrar advised them to proceed and register Cherutich’s lease.
“In the absence of other contrary documents concerning the land, we were advised to register the lease of Cherutich and issue her with a certificate and white card,” he testified.
He testified that the documents belonging to the judge have been forwarded to the Directorate of Criminal Investigations (DCI) for investigations.
In cross-examination, Gitonga said that he was aware of fraud cases in the land registry and has dealt with quite a number including missing files and planted files.
Gitonga was testifying in defense of Munyao’s testimony on October 27, 2020. Munyao testified that he leased the land on December 2, 2010.
He accused Lands registry in Nakuru of fraudulently transferring the parcel to Cherutich and termed the Cherutich’s procurement as fraud and misrepresentation at the registry.
“The land registry committed a crime by illegally issuing the defendant with the title while aware there was another certificate of lease for the suit land,” testified Munyao.
He testified that the registry not only fraudulently transferred his land to Cherutich, but tampered with the genuine records with respect to the suit land.
He added that the registry caused the disappearance of the genuine file containing genuine records for the proprietor of the land.
He wants the court to declare him the genuine owner of the land and declare the lease issued to Cherutich as fake.
The judge said he paid Sh40,000 stamp duty and was to pay a rent of Sh1,400 annually for the land valued at Sh2.5 million adding that he has been in peaceful possession for the last nine years.
However, he testified that on October 7, 2018, as he was inspecting the land, he found two people digging holes and attempting to put up posts to fence the land.
Cherutich will testify on June 22, 2021.
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