Daniel Maina Kibage (Duly Registered Attorney of Gabriel Githaiga v Kenya Forest Service [2018] KEELC 2260 (KLR)

REPUBLIC OF KENYA

ENVIRONMENT AND LAND COURT

AT NYAHURURU

ELC CASE NO 96 OF 2017

DANIEL MAINA KIBAGE (DULY REGISTERED                 

ATTORNEY OF GABRIEL GITHAIGA..............PLAINTIFF

VERSUS

KENYA FOREST SERVICE...............................DEFENDANT

JUDGEMENT

1. Before me for determination is a matter that was originally filed on the 20^th March 2012 at the High Court of Kenya at Nakuru as Civil Suit No. 102 of 2012. The defendants entered their defence on the 11^th June 2012.

2. Alongside with the plaint. The Plaintiff also filed an Application by way of a notice of motion dated the 3^rd May 2011(sic) wherein he sought for interim orders against the Defendants. Interim injunctive orders pending the hearing of the application inter-parties were issued on the 18^th May 2012.

3. Subsequently the application was heard inter-parties on the 25^th September 2012 wherein the ruling was delivered on the 28^th March 2013 wherein the trial Judge found that although the Plaintiff was the registered proprietor of the suit land, yet the material presented before her was not sufficient to find that he had demonstrated that he had established a prima facie case with a probability of success to be entitled to an interlocutory injunction. She further found that the court needed to take evidence and examine the relevant documents so as to establish whether the land was the Plaintiff’s or not. Further that since the Defendants were in occupation of the suit land, they were to continue occupying it until the matter was heard and determined.

4. The matter was subsequently transferred to the Land and Environment Court wherein on the 9^th June 2015, the same was certified ready for hearing of the main suit. It was then transferred to this court upon its establishment wherein it proceeded for hearing of the main suit on the 28^th September 2017.

5. In his plaint, the Plaintiff prayed for;

i. A declaration that he is the legal owner for L.R/Nyandarua/Muruai 926 and he is entitled to its exclusive use as against the Defendant.

ii. Cost of the suit.

iii. Any other of further relief that the court may deem fit and just to grant.

6. The court was informed that although the suit was filed by Mr. Daniel Maina who stood in as an the Attorney of Mr. Gabriel, the said Mr. Daniel was now deceased and that Mr. Gabriel wished to proceed on his own, there being no objection from the Defendants, the said Mr. Gabriel Githiga, with the permission of the court proceeded to testify. 

7. In short, the Plaintiff’s case was to the effect that he was the proprietor of suit parcel No Nyandarua/Muruai/926 having acquired the same through allotment by the Settlement Fund Trustee in the year 1999.

 8. That he was issued with a letter of offer dated the 14^th April 1999 produced as exhibit1, for plot No. 926 in Nyandarua.

9. That the offer was valid for 90 days wherein he had to pay 10% deposit for the plot. That he complied with the terms of the allotment by paying the 10% required vide a receipt dated the 8^th November 2004 for ksh 2,721 which he produce as exhibit 2. That after the payment of the 10%, the settlement Fund Trustee then gave him a charge dated the 29^th August 2007 which he produced as exhibit 3.

10. That as per the charge, he was to make further payments which he made on the 10^th August 2006 for Ksh 5,195/= (deposit slip produced as Exhibit 4) on account of additional land deposit because the land was bigger than what he had been allocated.

11. The Plaintiff testified that he made further payments in the following way:

i. 29^th September 2007, he paid Ksh. 5,000/= for the loan repayment vide receipt was produced as exhibit 5.

ii. On the 6^th June 2008 he paid Ksh. 6,000/= vide receipt produced as exhibit 6

iii. On the 11^th June 2008 he paid Ksh. 20,000/= being loan repayment precept produced as exhibit 7.

12. That he was then issued with a letter dated the 21^st September 2009, produced as exhibit 8 which indicated that he has cleared the amount in full.

13. That further he was issued with a letter dated the 25^th September 2009 herein produced as exhibit 9 forwarding the discharge of charge. Subsequently he was given a transfer of land of the suit land document which was attached with the discharge of charge. The documents were produced as exhibit 10(a) and (b) with which he procured the title to the suit land on the 10^th November 2009 being L.R/Nyandarua/Muruai 926, exhibit 11 that had an acreage of 18.50 acres.

14. The Plaintiff also produced the mutation form from the settlement Fund Trustee for the suit land as exhibit 12 showing that parcel No. 926 was mutated from parcel No. 96 which had been sub divided into many parcels of land.

15. He also produced two certificates of search dated the 11^th June 2010 and 26^th November 2010 as exhibit 13 and 14 respectively that indicated that the suit land was not encumbered.

16. The copy of the register for the suit land herein produced as  exhibit 15 also confirmed that the suit land had initially been registered to the Settlement Fund Trustees wherein they had transferred it to the Plaintiff vide entry No. 2 and a title was issued to him vide entry No 3.

17. The Plaintiff also produced as exhibit No. 16 the registry for parcel No. 96 that indicated that the 1^st entry was in the name of the Settlement Fund trustee and was closed on the 26^th October 1999 upon its sub-division into parcels No. 917-939. That the present suit land fell within the said numbers of parcels of land.

18. That he took possession of the land upon being shown the beacons by the district lands settlement officer but since the year 2011 when he was informed by the forest officers that the land was forest area, he has been unable to utilize the same. The Plaintiff testified that the suit land was not part of forest land and that the forest had no interest and neither were they justified in interfering with his land.

19. In cross examination, it was the Plaintiff’s testimony that he followed all the procedure required to acquire the land. He informed the court that he had come to know of its availability through the Ministry of lands wherein he made his application vide a letter he had not produced in court and paid all the requisite fees. He confirmed that he was not aware of any gazette notice and neither had he conducted a search before he had bought the land.

20. That as by 2011 his father used to farm on the land but that by the time the injunction was issued, they were no longer on the land. In re-examination the Plaintiff clarified that he had paid all that was required of him as was shown in exhibit 8. He also confirmed that he was issued the offer in the year 1999 wherein at the time, register for the suit land which was produced as exhibit 15 was not in existence. He confirmed that the mother title to the suit land, that is exhibit 16, was opened on the 26^th November 1985 and that at the time he bought the suit land, he could only have relied on the said mother register.

21. The Plaintiff closed its case wherein the defence called the chief Officer of survey and mapping working with the forest Service’s, one Mr. Evans Kigode, as its witness.

22. The Defence witness testified, while adopting his witness statement, to the effect that he was familiar with the issues at hand and that the said suit land was set aside for the forest after a successful exchange program between themselves and the settlement Fund Trustee wherein the Settlement Fund trustee had surrendered the parcels of land within in Muruai and Kirima, being land parcels No. Nyandarua /Muruai 96 and No. Nyandarua/Kirima 298 which were part of the Leshau forest within the Aberdare forest to the forest department.

23. The defence witness further testified to the effect that after this exchange program, the forest department was to survey the two parcels of land being 96 and 298 to prepare the boundary plans so that they could be forwarded to the director of survey for authentication before they were forwarded to the Hon Attorney General to be gazetted as forest areas which process was done.

24. The witness produced a letter dated the 3^rd November 1997 as Defence exhibit 1, from the settlement Fund Trustee to the chief Conserver of the forest requesting him to survey and gazette that Land.

25. He also produced Defence exhibit 2 and 3 to show the authenticated and registered boundary plans No. 175/322 for Muruai forest and No. 175/323 for Kirima forest respectively.

26. The witness further informed the court that once the gazette notice was published, 28 days were allowed for any objection to the gazetted area being as such.

27. That this area was published as such on the 30^th July 1993 vide gazette Notice No. 3600 which he produced as Defence exhibit No. 4. There were no objections received during the 28 days and the notice has therefore never been rescinded as at the moment.

28. The witness also produced as Defence Exhibit 5, the special issue Kenya gazette Supplement Notice No. 130 dated the 21^st August 2017 which had gazetted several other areas including Muruai, legal No. 177 dated the 14^th August 2017, as forest areas.

29. That at the time the Plaintiff was buying the suit land, the same had already been reserved as forest area and the settlement Fund Trustee therefore had no rights over the same. That had the Plaintiff conducted due diligence, he would had discovered as such and the Defendant should not be held liable. The Defendant prayed for the suit to be dismissed and the Plaintiff’s title be cancelled.

30. On cross examination, the Defendant was categorical that parcel No 96 still existed but changed his mind when he was shown exhibit No 16 although he defended his earlier testimony to the effect that the Registrar at the lands office ought to have consulted with the Director of survey before conducting any registration.

31. He confessed that he could not confirm as to whether the registration of the Plaintiff’s title was carried out after the consultation with the director of survey although that ought to have been the case.

32. The witness testified that he was sure that there was documentation to show that there had been an exchange between the settlement fund Trustee and the Forest department although he did not have a copy of the same in court.

33. He confirmed that vide Plaintiff exhibit 16, the suit land had never been registered in the name of the name of Kenya forest and also as per the Plaintiff’s exhibit 17, that parcel No. 926 was opened in the name of Settlement Fund Trustee and the second entry was in the name of the Plaintiff at which time the land hand not been declared.

34. He also confirmed that the declaration was made just the other day but that the moment the land was set aside for forest purpose, then according to the Forest Conservation and Management Act 2016, it could be declared as a forest area.

35. He informed the court that by the time the Plaintiff was buying the suit land, the same was the property of the Kenya Forest Service.

36. In re-examination, the witness confirmed that they had not been aware that there had been such a transaction between the Settlement fund trustee and the Plaintiff in the land registry. The Defence closed its case whereby parties filed their submissions.

Plaintiff’s Submission.

37. It was the Plaintiff’s submission that there once existed parcel of land known as LR. Nyandarua/Muruai/96, out of which the suit land plot 926 was excised. That this parcel of land, known as LR Nyandarua/Muruai/96 was solely owned by the Settlement Fund Trustee.

38. On 26^th November 1985, the Settlement Fund Trustee was registered as the sole and absolute proprietor of LR Nyandarua/Muruai/96 under the Registered Land Act (repealed).

39. That Section 27(a) of the Registered Land Act provided for the interest that is conferred by such registration, thus:-

“Subject to this Act:-

The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto”.

40. They submitted that the plaintiff had produced the green card for LR. Nyandarua/Muruai/96 which was evident from the card that at no given time had the Settlement Fund Trustee transferred its interests over it. That by virtue of being the registered proprietor of Parcel 96, the Settlement Fund Trustee had all the rights over the said land, which rights included disposing it or dealing with it in any manner it deemed fit. On 26^th October, 1999, the Settlement Fund Trustee thus caused the register of LR Nyandarua/Muruai/96 to be closed on sub division and new registers were opened for parcels No. 917 to 939.

41. It was further their submission that by the time the Settlement Fund Trustee caused the closure of the register, LR Nyandarua/Muruai/96 had not been declared a state forest, and neither had it been transferred to the Ministry of Natural Resources.

42. That in fact from the Defendant’s case, after the Settlement Fund Trustees had entered into an arrangement with the Ministry of Environment and Natural Resources, to exchange land, in the year 1979, the Ministry of Environment and Natural Resources had Gazetted in the Gazette notice of 30^th July 1993 of an INTENTION TO DECLARE FOREST AREAS, whereby it intended to declared Parcel 96 as a forest area. That this process of declaring parcel 96 a forest area was guided by Section 4 of the Forest Act (now repealed)

43. The plaintiff submitted that before a declaration is made under paragraph (b) or Paragraph (c) of Section 4 of the Act, it was a requirement that the gazettement of the declaration itself be made and this was done in August 2017 but that the said declaration was of no legal effect because the said land ceased to exist on 26^th October, 1999. The said legal notice lacked any basis and was incapable of compliance as it was with regard to a non-existent parcel of land.

44. It was their submission that in view of the failure to declare LR. Nyandarua/Muruai/96 a state forest during its existence, the Settlement Fund Trustee did not at any given time divest itself of any rights over it, and as such it was within its powers to cause its register to be closed and thereafter allocate the resultant parcels.

45. That on 10^th November, 2009, the plaintiff was registered as the sole and absolute proprietor of LR. Nyandarua/Muruai/926, and a title deed was issued thus conferring upon him the rights provided in Section 27 (a) and 28 of the Registered Land Act.

46. Section 28 of the Registered Land Act provides:-

“The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of the court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor together with all privileges and appurtenances belonging thereto free from all other interests and claim whatsoever,..........

47. That Section 27(a) of that Act provides that:

‘……the registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto;’

48. That the Defendant had not counterclaimed for cancellation of the Plaintiff’s title deed for LR Nyandarua/Muruai/926, and neither had it sought for cancellation of the entry of 26^th October, 1999 on LR Nyandarua/Muruai 96 that closed its register. In the circumstances, the Defendant could therefore not seek for dismissal of the Plaintiff’s suit and ignore the existence of title deed for LR. Nyandarua/Muruai 96.

49. The Plaintiff maintained that his title was valid unless it was defeated in accordance with the law because it was legally and procedurally transferred to him. That the Defendant had not exhibited anything to prove that the land that it was to give out in the exchange arrangement in consideration of LR Nyandarua/Muruai /96, ever ended up in the names of Settlement Fund Trustees.

Defendant’s submission.

50. The Defendant on the other hand submitted that the first Gazette notice that declared the intention to make the suit property a forest area was not rescinded nor cancelled at any given point, neither were objections raised by any party within the 28 days period from the date of publishing the gazette notice.

51. The Settlement Fund Trustees transferred all its interests over the entire Nyandarua/Muruai/96 and Nyandarua/Kirima/298 measuring 733.1 and 527.5 hectares respectively, in exchange for 194.7 hectares and 4340 hectares of Leshau and Aberdare Forests respectively.

52. It was further the Defendant’s submissions that the Plaintiff’s alleged acquisition of land set aside for forest while being aware of gazette notice No 3600 of 20^th July, 1993 setting out the said land for forests smacked of fraud.

53. That further, even though the Attorney General took long in issuing a gazette notice marking the area as a forest land, the existence of a gazette notice of intention to declare the area a forest was valid as it had not been rescinded. As a result, the land still fell within the ambit of public land under Article 62(1) (c) of the Constitution which defines public land to include land transferred to the state by way of sale, reversion or surrender.

54. That the Settlement Fund Trustee had ceded and/or surrendered the suit land to the forest department way back in 1979 thus beginning the process of surveying and registering its boundary as plan number 175/323 up to when it was gazetted as a forest on the 21^st August 2017 vide the Special Gazette Notice No 130.

55. The Defendant submitted that the entire process started way before the plaintiff acquired the land as alleged and he cannot therefore hide behind the fact that the land was only gazetted as a forest land later in August 2017, to aid him in acquiring public land set aside for a state forest. That if he were allowed to do so, he would open a Pandora’s Box which would defeat the Defendant’s and the Government’s efforts to protect and conserve forests.

56. That it was clear from the Plaintiff’s testimony that he allegedly bought the land from Settlement Fund Trustee, at the time when the Settlement Fund Trustee could not purport to allocate parcels of land within the Muruai and Kirima areas as the same had been ceded to the Forest Department way back in 1979. That the Plaintiff could not lawfully acquire title to public land which had been set aside for government forest. His claim, if any, should be addressed to the Settlement Funds Trustee.

57. That further the letter of cessation from the Director of Adjudication and Settlement dated 23^rd November 1979 to the Chief conservator of forests authorizing him to carry out the survey and demarcation work of Muruai and Kirima for conversation into forestry is still binding up until this day as the same has never been revoked. The Settlement Fund Trustee took possession of Leshau and Aberdare Forests and they have never returned any part of the said area to the Forest Department.

58. The Defendant submitted that it was common public knowledge that Muruai area was set aside for the forest and has been suffering encroachment as evidenced by the letter of complaint dated 5^th February 2002 by Ndaragwa District Environmental Committee, a fact which the Plaintiff was also aware of when he acquired the suit land.

59. Further submission was that it was common knowledge that forests in Kenya are facing rapid decline and degradation mainly due to illegal logging, human encroachment and illegal acquisition of gazette forest land and/or land set aside for forests. The Defendant however, strives to put its foot forward to protect forests in exercise of the mandate donated by the Forest Act. That to allow the likes of the Plaintiff to encroach into land set aside for forests and/or land that had been published as forest area would have the effect of restraining the Defendant from exercising its legal obligation of checking encroachment and illegal acquisition of land set aside for forests in the country.

60. That if the prayer’s sought by the Plaintiff were allowed, it would curtain the Government’s responsibility as enshrined in Article 69 (1) of the Constitution which inter alia requires the state to:

(a) ensure sustainable exploitation, utilization, management and conservation of the environment and natural resources, and ensure the equitable sharing of the accruing benefits;

(b) work to achieve and maintain a tree cover of at least ten per cent of the land area of Kenya;

(c) protect and enhance intellectual property in, and indigenous knowledge of, biodiversity and the genetic resources of the communities;

(d)encourage public participation in the management, protection and conservation of the environment;

(e) protect genetic resources and biological diversity;

(f) establish systems of environmental impact assessment, environmental audit and monitoring of the environment;

(g) eliminate processes and activities that are likely to endanger the environment; and

(h) utilize the environment and natural resources for the benefit of the people of Kenya.

61. The Defendant further submitted that all the foregoing duties and responsibilities of the state under Article 69 (1) of the Constitution could only be achieved through robust protection and conservation of the environment, including forests, and forests could only be protected and conserved by checking illegal encroachment and or acquisition of land set aside to be converted to forest land such as the suit land herein.

62. The Defendant submitted that the alleged registers and the title deed issued to the Plaintiff were obtained illegally and fraudulently and the same do not lawfully exist. That there were no clearance certificates produced by the Plaintiff to show that he was authorized to acquire the suit property.

63. That it was clear that the Plaintiff did not conduct any due diligence before buying the said land and if the Settlement Fund Trustee indeed sold the land to the Plaintiff, the amount he paid can be ascertained and the plaintiff should claim to be reimbursed by Settlement Fund Trustee. The Dependent have been on the suit land since 2011, about 7 years ago proving that their possession as they continue to protect the forest.

Determination

64. I have considered the evidence by the parties as well as the submissions by their counsel. Indeed there is no dispute that the Plaintiff is the registered proprietor of the suit property having acquired it under the Registered Land Act (now repealed). I note that these properties were registered under the repealed Registered Land Act which is now governed by The Land Act, 2012 and the Land Registration Act, 2012. Indeed the law is very clear on the position of a holder of a title deed in respect of land. Section 26(1) of the Land Registration Act provides as follows:

“the Certificate of Title issued by the Registrar upon registration, to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all counts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of the proprietor shall not be subject to challenge, except –

a. On the ground of fraud or misrepresentation to which the person is proved to be a party

b. Where the Certificate of Title has been acquired illegally un-procedurally or through a corrupt scheme

65. As may be observed, the law is extremely protective of title and provides only two instances for the challenge of title. The first is where the title is obtained by fraud or misrepresentation to which the person must be proved to be a party. The second is where the certificate of title has been acquired illegally, un-procedurally or through a corrupt scheme.

66. The import of Section 26 (1) (b) is to remove protection from an innocent purchaser or innocent title holder. It means that the title of an innocent person is impeachable so long as that title was obtained illegally, un-procedurally or through a corrupt scheme. The title holder need not have contributed to these vitiating factors. The purpose of Section 26 (1) (b) is to protect the real title holders from being deprived of their titles by subsequent transactions.

67. The Court of Appeal in the case of Munyu Maina vs. Hiram Gathiha Maina [2013] eKLR, held as follows:

We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register.

68. From the foregoing pleadings, the following issues emerge for determination:-

i. whether indeed there was allotment of land

ii. Whether that land was being capable of being allotted. 

iii. Whether the Plaintiff is entitled to the reliefs sought.

69. The registration of title in the suit property has been challenged by the Defendant herein to the effect that although the plaintiff was allocated the said suit land, yet it  in 1979, there had been a successful land exchange program between the Settlement Fund trustee and the Kenya Forest Service wherein the Forest department ceded 194.7 hectares of Leshau forest and about 4,340 hectares of Abedares Forest to the Settlement Fund Trustee to be converted into Geta, Makaro and Leshau settlement Schemes. On the other hand and in exchange, the Settlement Fund Trustee had ceded Parcel No. Nyandarua /Muruai 96 and No. Nyandarua/Kirima 298 measuring approximately 733.1 hectares and 527.5 hectares respectively to the forest Department to be converted into government forests.

70. That pursuant to this exchange program, Notices were published in the Gazette Notice No. 3600 on the 20^th July 1993 of the intention to declare Parcel No. Nyandarua /Muruai 96 area as a forest and remained so until August 2017 when the same was eventually published as a public land via special gazette Notice No. 130 of 21^st August 2017. The Plaintiff’s acquisition of the suit land was therefore fraudulent keeping in mind that the said notice of 1993 was never rescinded.

71. That the suit property is situated within the boundaries of Muruai Forest and falls under the Forest Act, Cap 385 presently Forest Conservation and Management (No. 34 of 2016) and therefore the purported allocation above was illegal and the title is null and void. The Defendant states that the suit property was not available for allocation as it was a State forest.

72. Section 4 of the Forest Act Cap 385 provides as follows:

(1)There is hereby established a Service to be known as the Kenya Forest Service.

(2)The Service shall be a body corporate with perpetual succession and a common seal and shall, in its corporate name, be capable of—

(a) suing and being sued;

(b) acquiring, holding, charging and disposing of movable and immovable property; and

(c) doing or performing all such other things or acts for the proper discharge of its functions under this Act.

73. From the evidence adduced in court, there is no dispute that on 23^rd November 1979 (see Defence Exhibit 1) the Director of settlement Fund trustee wrote to the Chief Conservator of forests through the Cabinet secretary, Ministry of Natural resources asking him to go ahead to survey and demarcate Kirima and Muruai Farms to be gazetted as forests. Subsequently the two parcels of land were authenticated and boundary plans No. 175/322 for Muruai forest and No. 175/323 for Kirima forest were registered respectively. On the 30^th July 1993, the Minister for Environment published, vide gazette Notice No. 3600 his intention to declare Muruai Parcel No. 96 on boundary No175/322 a forest area upon which, 28 days were allowed for any objection to the gazetted area being as such.

74. There were no objections received during the 28 days and the notice has therefore never been rescinded. Via special gazette supplement No. 130 of 21^st August 2017, legal notice No 177, No. Nyandarua /Muruai 96 was confirmed as a forest area.

75. The Plaintiff claims to have bought the suit property L.R/Nyandarua/Muruai 926 which was as a result of the subdivision of Nyandarua/Muruai 96 from the Settlement Fund Trustee in April, 1999. The Plaintiff is said to have been allotted the suit property vide a letter of offer dated the 14^th April, 1999. There was no letter of allotment produced in court though, but the letter of offer was to the effect that it was valid for 90 days form the 14^th April 1999 within which period the Plaintiff was to pay 10% deposit for the plot.

76. As at the 14^th April 1999 when the Land Adjudication and Settlement Department wrote to the Plaintiff offering him Plot No 926 Muruai settlement Scheme, the same had been mapped out as forest area as per the plans that were produced by the Defendant in their evidence. There was therefore no way the suit property would have been lawfully created from land which was not available. The settlement fund trustee had no good title to transfer to the Plaintiff because the land was not available for allocation. This being the case, the Plaintiff cannot claim that and he is entitled to the exclusive use of the suit land as against the Defendant.

77. From the evidence adduced herein and the documents produced in this case, it is clear that the title by the Settlement Fund Trustee which was subsequently transferred to the Plaintiff was obtained illegally, un-procedurally and through a corrupt scheme. The title to the suit property had ceased to exist as an independent title upon the declaration vide gazette Notice No. 3600, dated the 30^th declaring the suit land as forest land. The action of resurrecting the title to the suit property was therefore illegal and was done fraudulently.

78. As Lord Denning said in the case of Lazarus Estates Limited vs. Beasley (1956) 1 ALL ER 341 at 193,

‘No Court in this land will allow a person to keep an advantage he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever…’

79. Indeed Article 40 of the Constitution is clear that it does not afford protection to a property which is found to have been unlawfully acquired. The suit property had already been designated as a reserve for the forest. Its allocation and subsequent transfer to the Plaintiff cannot be protected by the Constitution. The suit property remained a reserve of the forest and no person could lawfully lay claim to it.
 

80. The suit property having been acquired unlawfully, it follows that the Plaintiff cannot seek either restoration of the same to him or compensation from the Defendant. The upshot of this is that I find that the Plaintiff has failed to prove his case on a balance of probability. The same is hereby dismissed with costs to the Defendant.

Dated and delivered at Nyahururu this 31^st day of July 2018.

M.C. OUNDO

ENVIRONMENT & LAND – JUDGE