According to the law of the land, a share certficate is not the same as an individual title deed registering one as the land owner
In 2008, Jacqueline Wangu Kariuki, bought three plots from the Embakasi Ranching Company Ltd, situated in Embakasi, Nairobi and constructed a house for her parents in one of the plots.
Ms Wangu had built for her parents a permanent house, but had only been issued with a share certificate, the mother title to the property still remained in the name of the Embakasi anching Company Ltd.
Having a share certificate as the only legitimate claim on the said parcel of land was the beginning of the parents’ nightmare after another person, David Gatero Thairu, who had also been allocated a share certificate with a different number but relating to one of the plots, also claimed ownership.
Mr Gatero reported Mr Francis Kariuki Wangu to the police and had him charged with the offence of forcible detainer contrary to section 91 of the Penal Code.
However, Mr Kariuki and his daughter filed an application at the High Court through lawyer Samuel Thuku, alleging violation of their rights, and sought orders to stop their prosecution by the Director of Public Prosecution (DPP), in Criminal Case which was pending before a agistrate sitting in Makadara law Courts.
Lady Justice Mumbi Ngugi in her ruling dated July 30, this year did not only stop the prosecution but also held that a share certificate is not a proper document for either of the parties to rely on in laying claim over land.
In determining the dispute, the judge observed that the provisions of section 91 require a person to be in possession of land and to hold onto it “without colour of right” against a person “… entitled by law to the possession of the land” in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.
The question before the court the judge said, is whether, Mr Gatero can be said to have been entitled by law to the possession of the land, and whether Mr Kariuki and his daughter Wangu, had committed the offence Justice Ngugi explained that the prosecution, in charging Mr Kariuki with the offence of forcible detainer, had treated the land in dispute as belonging to Mr Gatero, even though there was no individual title in his favour to prove his alleged ownership of the land.
A similar decision had been held by Mr Justice Joseph Karanja in a case where Abraham Lonyangat and John Lonyangat, were convicted and sentenced to a term of six (6) months imprisonment each for the offence of forcible detainer contrary to section 91 of the penal code.
It had been alleged that on July 26, 2008 at Adurhoit sub-location, West Pokot District, being in possession of unregistered land parcel within Kongelai Group Ranch of Mr Lonyangole Nguranyang without colour of right, the two held in possession the said land in a manner likely to cause a breach of the peace against Mr Nguranyang who was entitled by law to the land in question.
Mr Justice Karanja observed that the land was registered in the name of a group ranch —the lawful proprietor of the land —to which both the appellant and the complainants belonged, Neither the appellants nor the complainant in the case could claim ownership of the land as individual titles had not been issued.
And neither could accuse the other of interfering with the other’s lawful possession of the land.
The Court, in allowing their appeal against conviction and sentencing, observed that, “the solution to their dispute regarding the land lies with the registered owners, that is, the Kongelai Group Ranch.”
With respect to the provisions of section 91 of the Penal Code, Mr Justice Karanja had stated that, “In any event, section 91 of the Penal Code presupposes that the complainant is the lawful owner of the land in dispute which was not the case herein.
The appellants could not be said to be guilty of forcible detainer yet the land is not registered in the name of the complainant or lawfully possessed by himself thereby giving him the colour of right thereof to the exclusion of the appellants or any other person.”
Equally in her judgment, Justice Ngugi held that Mr Kariuki and Ms Wangu, had made a valid point with regard to the offence they are charged with.
“Since neither they nor the complainant, Mr Gatero, is the registered owner of the plot in dispute, none can properly maintain a claim for forcible detainer,” Judge Ngugi.”
Justice Ngugi stated that the land in dispute is still registered in the name of Embakasi Ranching Company Ltd, and as a responsible seller, Embakasi Ranching Company Ltd should by now have taken the requisite steps to clearly demarcate the land, ensure that each purchaser is clear about the location and extent of his or her property.
Embakasi Ranching Company Ltd, should have also arranged for the issuance of titles to each purchaser.
“In my view, it would be to allow an abuse of the Court process if the proceedings against Mr Kariuki, which are premised on the lawful entitlement of Mr Gatero, are allowed to proceed,” explained Lady Justice Ngugi.
Further, that based on the material before court, it would be to continue an abuse of the Court process to permit the prosecution of Mr Kariuki, or Ms Wangu, should proceedings against her commence.
The judge nevertheless, declined to declare the provisions of section 91 of the Penal Code as unconstitutional in view of Article 40 on the right to property, stating that Mr Kariuki and Ms Wangu through lawyer Thuku, had not placed before court, anything that would justify a finding that the provisions are unconstitutional.
In the circumstances, my final orders are that: an order be and is hereby issued prohibiting the prosecution of Mr Kariuki and Ms Wangu in the Criminal Case or in any other criminal proceedings relating to the said plots, on Embakasi Ranching Company Ltd situated at Embakasi on the offence of forcible detainer.
There were no replies or submissions filed by Embakasi Ranching Company Ltd and Mr Gatero, neither did they participate in any way in the proceedings.
However, the DPP had through prosecution counsel Laura Spira, submitted that under Article 24(1) of the Constitution a right or fundamental freedom may be limited to the extent permissible in a free and democratic society.
She contended that upon investigation by police officers, the police confirmed from Embakasi Ranching Company Ltd that Mr Gatero was the owner of the disputed plot which is the subject matter of the criminal case.
The police summoned Mr Kariuki to record a statement but he failed or refused to do so. “Upon review of the evidence, the DPP, as he is mandated to do under the Constitution, directed the police to proceed with the case. He did not depend on extraneous considerations but on the evidence on record,” lawyer Spira.
Police Constable Anthony Mumanyi attached to the Directorate of Criminal Investigations at Ruai, and who had been assigned the duty to investigate the matter, had in his court papers said that he received a complaint from Mr Gatero and commenced investigations on or about October 20, 2014.
Mr Gatero complained to him that an unknown developer had encroached on the parcel of land that he had acquired from Embakasi Ranching Company Ltd, and produced a share certificate and a letter in respect of the plot.
Lawyer Spira had also denied that the DPP had violated the petitioners’ rights, arguing that the decision to charge Mr Kariuki was made within the ambit of the law.
In his reply to the submissions by the DPP, lawyer Thuku submitted that with respect to the plot numbers of the parcels in dispute, it is only Embakasi Ranching Company Ltd who can confirm the exact number of the disputed plot and who owns it.
The facts giving rise to the petition revolved around the ownership of three plots in the Embakasi Ranching Company Ltd. Ms Wangu had in her court papers, said that she is the lawful owner of the three plots, and that she took possession in 2008 and had been in occupying without interruption for three (3) years.