[2008] KEHC 3307 (KLR)
The court found that the plaintiff lawfully acquired the land as a member of the Gamumu Group Ranch upon its dissolution and was properly registered as proprietor. There was no evidence of fraud in the transfer or registration process. The defendant, despite long occupation, failed to establish the requirements for...
Source-derived case information.
- Citation
- [2008] KEHC 3307 (KLR)
- Parties
- Plaintiff: Beatrice K. Kareria; Defendant: Mbogo Kauga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 98 of 2006
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim for eviction allowed; defendant's counterclaim dismissed.
- Legal Topics
- Eviction, Adverse Possession, Fraud in Land Transfer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice K. Kareria
Plaintiff
Mbogo Kauga
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful proprietor of parcel Mbeti/Gachuriri/1071.
- 2 Whether the defendant is entitled to remain on the land by virtue of adverse possession.
- 3 Whether the plaintiff obtained title to the land by fraud.
Ratio Decidendi
The court found that the plaintiff lawfully acquired the land as a member of the Gamumu Group Ranch upon its dissolution and was properly registered as proprietor. There was no evidence of fraud in the transfer or registration process. The defendant, despite long occupation, failed to establish the requirements for adverse possession, as he had not demonstrated exclusive possession adverse to the plaintiff's title, particularly given prior litigation and notice to vacate. The plaintiff, as registered proprietor, is entitled to exclusive possession and eviction of the defendant, who occupies the land without her consent. The defendant's counterclaim for cancellation of title or declaration...
Court Disposition
Plaintiff's claim for eviction allowed; defendant's counterclaim dismissed.
Orders
- The defendant shall vacate the plaintiff's land within 60 days.
- If the defendant fails to vacate within 60 days, execution of decree against him shall proceed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL CASE NO. 98 OF 2006
BEATRICE K. KARERIA ……………….….....……………….PLAINTIFF
VERSUS
MBOGO KAUGA……… ………………..………………….DEFENDANT
JUDGMENT
The Plaintiff filed a plaint against Defendant seeking orders for the eviction of the Defendant from her land comprised in title number Mbeti/Gachuriri/1071 in his defence the Defendant admits that demand notice of intention to sue him has been given but he refuses to vacate the land. Defendant has also counter claimed against the plaintiff seeking canceling of the plaintiff’s name from that title and his name be registered as proprietor and in the alternative a declaration that the defendant has acquired rights to the title under the doctrine of adverse possession. Parties gave evidence and produced exhibits. Plaintiff Exhibit 4 shows that the parcel of land in dispute was a subdivision of parcel 173 and on 22/4/1996 the registered proprietors were:-
- Ngari Ndegenye
- Stephen Nyaga
- Nginya Mika
- Ephantus K. Ngawa
- Benjamin Ireri
The said persons were registered trustees of Gamumu Group Ranch.
On 11. 11. 1997 the registered proprietor was Beatrice K. Kareria and she was issued with Title Deed exhibited as P. Exht 1 dated 11. 11. 1997.
Her oral evidence was that she was a member of a group pending group dissolution who owned the land plot No. 173 which was later subdivided and she was given plot No. Mbeti/Gachuriri/1071. She denied being involved in the alleged fraud. Note the particulars of fraud pleaded by defendant paragraph 11 of Defence was committed by a group known as Gamumu.
PW2 Stephen Ngawa Nyaga one of the person named as trustees in the Green card confirmed that the plaintiff was a member of the group and as the group was dissolved the plaintiff was given her parcel of land and registered as proprietor. The witness PW2 testified that when the group was dissolved Notice was given to clans to forward names of their members to be given land. The defendant’s claim did not forward his name as he had plots elsewhere. He also confirmed that the manner of transfer was not fraudulent. Authority was obtained from Director of Group Ranches in Nairobi in 1993. PW2 also disclosed that there was a suit filed by Defendant PMCC 40/94 and HCCA No. 10/1996 where the Defendant was claiming a piece of land but his claims were dismissed. The plaintiff called other witnesses who supported her case. On the part of Defence the Defendant gave evidence called 2 witnesses. The defendant and his witnesses emphasized that the defendant had been occupying time upwards of 20 years and that he has developed the land. The defendant himself said that matter was in court in the year 2001 but he did not move. He said he cannot move because the land belongs to his family and the same should be declared his.
Upon considering the evidence offered by both parties, it is my finding that the issue of ownership of the land in dispute is to be resolved in favour of the plaintiff the evidence of how she obtained transfer of the land is clear and proved. No fraud is proved in the manner she obtained title. On the issue of the eviction of the Defendant it is clear that the defendant was given notice to quit when the plaintiff became because the registered proprietor. He admits receiving the notice but definitely has resisted to vacate. The plaintiff as proprietor is entitled to order of eviction as the Defendant resides and occupies her land without her consent.
The other issue is the claims of the Defendant. I have already stated that there is no proof that the plaintiff obtained the land by fraud. Therefore her title cannot be cancelled on this ground.
Counterclaim is dismissed with costs to the plaintiff. The defendant shall vacate plaintiff’s land within the next 60 days failing which the execution of decree against him shall proceed.
It is so ordered.
Dated this 12th February, 2008.
J. N. KHAMINWA
JUDGE
12/2/2008
Khaminwa – Judge
Njue – Clerk
Plaintiff present
Defendant present
Read in open court
J. N. KHAMINWA
JUDGE