[2010] KEHC 3495 (KLR)
The court found that the plaintiff's evidence, supported by adjudication records and corroborated by a witness, established that the defendant was registered as proprietor of Plot No. Marama/Shikunga/1034 in trust for the plaintiff. The defendant's absence and lack of challenge to the plaintiff's case meant the...
Source-derived case information.
- Citation
- [2010] KEHC 3495 (KLR)
- Parties
- Plaintiff: Aggrey Marungu Wakhu; Defendant: David Otieno Obulemire
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 310 of 1993
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim allowed. Declaration of trust and rectification of register ordered.
- Legal Topics
- Trusts in Land, Rectification of Register, Adjudication Records, Inheritance of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aggrey Marungu Wakhu
Plaintiff
David Otieno Obulemire
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant holds Plot No. Marama/Shikunga/1034 in trust for the plaintiff.
- 2 Whether the land register should be rectified to register the plaintiff as proprietor of Plot No. Marama/Shikunga/1034.
Ratio Decidendi
The court found that the plaintiff's evidence, supported by adjudication records and corroborated by a witness, established that the defendant was registered as proprietor of Plot No. Marama/Shikunga/1034 in trust for the plaintiff. The defendant's absence and lack of challenge to the plaintiff's case meant the evidence was uncontroverted. The court concluded that the plaintiff had proved his case on a balance of probabilities and was entitled to the reliefs sought, including a declaration of trust and rectification of the land register to reflect the plaintiff as proprietor.
Court Disposition
Plaintiff's claim allowed. Declaration of trust and rectification of register ordered.
Orders
- It is declared that the defendant holds land title number Marama/Shikunga/1034 in trust for the plaintiff.
- The land registrar is to rectify the record and have Plot number Marama/Shikunga/1034 registered in the name of the plaintiff Aggrey Murungu Wakhu.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA Civil Case 310 of 1993
AGGREY MARUNGU WAKHU..................................PLAINTIFF
VERSUS
DAVID OTIENO OBULEMIRE...............................DEFENDANT
JUDGEMENT
The Plaintiff filed this suit in 1993 stating that it be declared that the owner of Plot No. MARAMA/SHIKUNGA/1034, who is the defendant, is holding the plot in trust for him, that the land register be rectified and the plaintiff be registered as the proprietor.
The case proceeded ex-parte as the defendant and his counsel was absent when the matter was being heard yet they had been served. The Plaintiff’s testimony is that his late father owned plot Marama/Shikunga/507. The Plot was eight acres but was subdivided into two during adjudication and plot No. Marama/Shikunga/1034 measuring 4 acres was created and registered in the name of the defendant. The Plaintiff further testified that after the death of his father the defendant’s father inherited his mother. This was in 1950 and they lived together in the suit property. The defendant’s father had his own plot registered in his name this being Plot No. Marama/Shikunga/765 which is located about one kilometer from the suit property. The defendant’s father registered Plot No.1034 in the defendant’s name yet the defendant was only 12 years in 1965. He produced the adjudication records for all the three plots and contend that Plot number 507 was eight acres and not four acres. The matter was deliberated by the elders and the defendant agreed to move to his plot number 765 but later declined.
PW2, WELINGTONE AMUBI testified that the defendant’s father was called Obulemile and was related to the Plaintiff’s father. He testified that the Plaintiff’s father was called WAKHU and his Plot measured eight acres while Obulemile’s plot was about 50 acres. The defendant is to inherit his father’s plot which is plot number 765.
It is unfortunate that this matter took over fifteen years to be heard and that the same preceded exparte.
The Plaintiff’s evidence is not controverted or challenged. The defence herein state that the contentions Plot number Marama/Shikunga/1034 is registered in the name of the defendant. The Plaintiff contends in his pleadings that he has been using both parcels of land, that is Plot number 507 and 1034 and that the defendant agreed to transfer Plot number 1034 to the Plaintiff but later failed to do so.
From the Plaintiff’s evidence and that of PW2 I do find that the plaintiff has proved his case against the defendant as prayed. It is hereby declared that the defendant holds land title number MARAMA/SHIKUNGA/1034 in trust for the Plaintiff. The land registrar to rectify the record and have Plot number Marama/Shikunga/1034 registered in the name of the Plaintiff AGGREY MURUNGU WAKHU. Each party to meet his own costs.
SAID J. CHITEMBWE
J U D G E
Delivered, Dated, and Countersigned at Kakamega this 16th day of March, 2010
ISAAC LENAOLA
J U D G E