[2018] KEELC 3415 (KLR)
The court found that the plaintiff is the registered proprietor of the suit land, as evidenced by the title deed produced in court. There was no evidence presented by the defendants to challenge the plaintiff's ownership or to establish any right to the land. The court applied section 26(1) of the Land Registration...
Source-derived case information.
- Citation
- [2018] KEELC 3415 (KLR)
- Parties
- Plaintiff: Andrew Mutava; Defendant: Mutua Nthuka; Defendant: Christopher Kisilu; Defendant: Musembi Muindi; Defendant: Nyamai Manga’o; Defendant: Ndunge Amu; Defendant: Agnes Muli
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 68 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Declaratory order issued in favour of the plaintiff; costs awarded to the plaintiff; other prayers declined.
- Legal Topics
- Ownership Disputes, Title Registration, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Mutava
Plaintiff
Mutua Nthuka
Defendant
Christopher Kisilu
Defendant
Musembi Muindi
Defendant
Nyamai Manga’o
Defendant
Ndunge Amu
Defendant
Agnes Muli
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the absolute and indefeasible owner of land parcel Makueni/Kai “A”/703.
- 2 Whether the defendants unlawfully acquired or occupied any portion of the plaintiff's land.
- 3 Whether the plaintiff is entitled to the orders sought, including injunction, damages, and declaratory relief.
Ratio Decidendi
The court found that the plaintiff is the registered proprietor of the suit land, as evidenced by the title deed produced in court. There was no evidence presented by the defendants to challenge the plaintiff's ownership or to establish any right to the land. The court applied section 26(1) of the Land Registration Act, which provides that the certificate of title is conclusive evidence of ownership unless obtained by fraud, misrepresentation, or illegality, none of which was alleged or proved in this case. The court declined to grant injunctive relief or damages, as the relevant prayers had become spent or were unsupported by evidence. The court issued a declaratory order confirming the...
Court Disposition
Declaratory order issued in favour of the plaintiff; costs awarded to the plaintiff; other prayers declined.
Orders
- A declaratory order is issued confirming the plaintiff as the registered proprietor of land parcel Makueni/Kai “A”/703.
- The defendants shall pay the costs of the suit to the plaintiff.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MAKUENI
ELC SUIT NO. 68 OF 2017
ANDREW MUTAVA...............................................................................PLAINTIFF
VERSUS
MUTUA NTHUKA......................................................................1ST DEFENDANT
CHRISTOPHER KISILU.........................................................2ND DEFENDANT
MUSEMBI MUINDI.................................................................3RD DEFENDANT
NYAMAI MANGA’O.................................................................4TH DEFENDANT
NDUNGE AMU.........................................................................5TH DEFENDANT
AGNES MULI.............................................................................6TH DEFENDANT
JUDGMENT
1. By his plaint dated 7th May, 2017 the plaintiff prays for judgment against the defendants for;
I. An order ofinjunction restraining the defendants or their agents from entering on the said land parcel No. Makueni/Kai “A”/703 until the suit is heard and determined.
II. An order that status quo be maintained until the matter is heard and determined.
III. An order that the defendants restrained from further construction and/or doing business in the said plot.
IV. General damages for selling a portion of the aforesaid plot.
V. Costs of this suit
VI. Any other relief the court may fit to grant
2. The defendants did not enter appearance and nor did they file their defence after being served with summons. Consequently, the court directed that this matter proceeds as an undefended suit.
3. When the matter came up for hearing on the 22nd January, 2018 , the plaintiff adopted his statement which he recorded and signed on the 7th April, 2017 as his evidence.
4. His evidence is that he is the registered owner of land parcel number Makueni/Kai “A” /703. He produced a copy of the title deed for the said as PEX No. 2. He went on to produce copies of demand letters that he issued to the defendants as PEX Nos. 2(a) to (f) respectively.
5. The plaintiff said that the late Peter Kituu who is his nephew secretly sold a portion of his land to the defendants without his knowledge.
6. In his submissions, the plaintiff’s counsel cited section 26(1) of the Land Registration Act number 3 of 2012 which provides that as follows;
The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence of that 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 that 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; or
b. Where the certificate of title has been acquired illegally, procedurally or through corrupt scheme.
7. The counsel submitted that on the face of it, it is only the plaintiff who can be said to own the suit land parcel and invited the court to grant the orders sought. The counsel is silent on the issues of damages. It will also be noted that the defendant did not adduce any evidence which the court can rely on in determining what damages, if any, that the plaintiff is to be awarded. In my judgment , I shall not make any award for damages.
8. Prayers (i) and (ii) of the plaint cannot be granted either as those prayers became spent upon the issuance of temporary order of injunction on 10/4/2017.
9. There was no evidence of the defendants having constructed on the suit land and as such prayers (iii) cannot be granted.
10. Arising from the foregoing, I am persuaded that the plaintiff is the registered proprietor of land parcel Makueni/Kai “A”/703. In the circumstances I hereby proceed to issue a declaratory order under prayer (vi) of the plaint. There shall be costs of the suit in favour of the plaintiff.
Signed, dated and delivered at Makueni on this 24th day of April, 2018.
MBOGO C.G
JUDGE
In the presence of;
No appearance for the plaintiff
Mr.Kwemboi Court Assistant
MBOGO C.G, JUDGE
24/4/2018