mkurugenzi
Elder Lister
Someone grabbed SK beach property and sold to a msungu who put up a hotel. Sasa koti imesema the illegal structures on SK land ziondolewe and trespassers warushwe inje.
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: NAMBUYE, WARSAME & OTIENO-ODEK, JJA)
CIVIL APPEAL NO. 100 of 2018
BETWEEN
ESTATE SONRISA LIMITED..........................................................APPELLANT
AND
SAMUEL KAMAU MACHARIA...........................................1st RESPONDENT
LAND REGISTRAR KWALE................................................2nd RESPONDENT
AND
FIDELITY COMMERCIAL BANK LIMITED..............INTERESTED PARTY
(Being an appeal against the Ruling and order of the Environment and Land Court
at Mombasa (A. Omollo. J.) dated 5th July, 2016
in
ELC Case No. 30 of 2014)
3. In support of his claim, the 1st respondent averred that on 21st May 1981, he acquired a certificate of title over the suit property. Subsequently, he applied for a loan facility and charged the property to Daima Bank Limited - now under liquidation with the Deposit Protection Fund Board (DPFB). That upon clearing the facility, the DPFB discharged the property and issued a discharge dated 14th August 2013. That with a view to registering the discharge, the 1st respondent was frustrated as the land registry file could not be found. That consequently, the 1st respondent visited the suit property and discovered that the appellant had encroached the same and had commenced construction. Upon inquiry, the 1st respondent discovered that one Ali Khan Ali Muses had been issued with a title deed over the suit property. He also discovered that the appellant’s encroachment over the suit property was done with the knowledge, collusion and fraud of the 2nd respondent herein.
6. In his statement of defence, the said Ali Khan Ali Muses averred that he was the registered proprietor of the suit property Kwale/Galu/Kinondo/50 on which is erected an incomplete hotel building put up by the appellant. He denied being privy to any of the fraud and collusion alleged in the plaint.
8. Upon hearing the parties, the learned Judge S. Mukunya, J. (as he then was) in a judgment delivered on 13th October 2014 made a finding that the certificate of title issued in favour of the said Ali Khan Ali Muses over the suit property was a fraud. The Judge held that the legitimate owner of the suit property was the 1st respondent in this appeal who is Samuel Kamau Macharia. As regards the boundary dispute between the appellant and the 1st respondent, the learned Judge made the following orders:
(i) Land Parcel Kwale/Galu/Kinondo/50 is 1.7 hectares.
(ii) Land Parcel Kwale/Galu/Kinondo/48 is 0.9 hectares.
(iii) That the beacon between land parcels Kwale/Galu/Kinondo/50 and Kwale/Galu/Kinondo/48 be fixed by a Surveyor as per the Land Act and taking into account the area in the respective title deeds.
(iv) The survey fees shall be paid by the owners of the said properties equally.
(v) Any party found to have encroached on the other party’s land shall have sixty (60) days to demolish structures that might have been erected thereon and move and vacate it. If the party encroaching fails to move and vacate, the party whose land has been encroached shall be at liberty after the said sixty (60) days to demolish such encroaching with the help of the court bailiff who will be assisted by the nearest Police Officer.
(vi) The cost of demolition shall be borne by the party that has so encroached.
(vii) A public path between the land parcels numbers 50 and 47 accessing the sea shall not be blocked.
(viii) The said Mr. Ali Khan Ali Muses’s title to the suit property is a fraud. He shall move and vacate the suit property within sixty (60) days and remove any and all his structures and debris thereon. In default, the 1st respondent in this appeal shall with the help of a court bailiff and assistance of police demolish all structures thereon. The cost of such demolition shall be borne by the said Mr. Ali Khan Ali Muses.
IN THE COURT OF APPEAL
AT MOMBASA
(CORAM: NAMBUYE, WARSAME & OTIENO-ODEK, JJA)
CIVIL APPEAL NO. 100 of 2018
BETWEEN
ESTATE SONRISA LIMITED..........................................................APPELLANT
AND
SAMUEL KAMAU MACHARIA...........................................1st RESPONDENT
LAND REGISTRAR KWALE................................................2nd RESPONDENT
AND
FIDELITY COMMERCIAL BANK LIMITED..............INTERESTED PARTY
(Being an appeal against the Ruling and order of the Environment and Land Court
at Mombasa (A. Omollo. J.) dated 5th July, 2016
in
ELC Case No. 30 of 2014)
3. In support of his claim, the 1st respondent averred that on 21st May 1981, he acquired a certificate of title over the suit property. Subsequently, he applied for a loan facility and charged the property to Daima Bank Limited - now under liquidation with the Deposit Protection Fund Board (DPFB). That upon clearing the facility, the DPFB discharged the property and issued a discharge dated 14th August 2013. That with a view to registering the discharge, the 1st respondent was frustrated as the land registry file could not be found. That consequently, the 1st respondent visited the suit property and discovered that the appellant had encroached the same and had commenced construction. Upon inquiry, the 1st respondent discovered that one Ali Khan Ali Muses had been issued with a title deed over the suit property. He also discovered that the appellant’s encroachment over the suit property was done with the knowledge, collusion and fraud of the 2nd respondent herein.
6. In his statement of defence, the said Ali Khan Ali Muses averred that he was the registered proprietor of the suit property Kwale/Galu/Kinondo/50 on which is erected an incomplete hotel building put up by the appellant. He denied being privy to any of the fraud and collusion alleged in the plaint.
8. Upon hearing the parties, the learned Judge S. Mukunya, J. (as he then was) in a judgment delivered on 13th October 2014 made a finding that the certificate of title issued in favour of the said Ali Khan Ali Muses over the suit property was a fraud. The Judge held that the legitimate owner of the suit property was the 1st respondent in this appeal who is Samuel Kamau Macharia. As regards the boundary dispute between the appellant and the 1st respondent, the learned Judge made the following orders:
(i) Land Parcel Kwale/Galu/Kinondo/50 is 1.7 hectares.
(ii) Land Parcel Kwale/Galu/Kinondo/48 is 0.9 hectares.
(iii) That the beacon between land parcels Kwale/Galu/Kinondo/50 and Kwale/Galu/Kinondo/48 be fixed by a Surveyor as per the Land Act and taking into account the area in the respective title deeds.
(iv) The survey fees shall be paid by the owners of the said properties equally.
(v) Any party found to have encroached on the other party’s land shall have sixty (60) days to demolish structures that might have been erected thereon and move and vacate it. If the party encroaching fails to move and vacate, the party whose land has been encroached shall be at liberty after the said sixty (60) days to demolish such encroaching with the help of the court bailiff who will be assisted by the nearest Police Officer.
(vi) The cost of demolition shall be borne by the party that has so encroached.
(vii) A public path between the land parcels numbers 50 and 47 accessing the sea shall not be blocked.
(viii) The said Mr. Ali Khan Ali Muses’s title to the suit property is a fraud. He shall move and vacate the suit property within sixty (60) days and remove any and all his structures and debris thereon. In default, the 1st respondent in this appeal shall with the help of a court bailiff and assistance of police demolish all structures thereon. The cost of such demolition shall be borne by the said Mr. Ali Khan Ali Muses.
