[2017] KEELC 1704 (KLR)
The court found that the Petitioner had entered into a valid sale agreement with the 1st Respondent for four acres of Kathivo/Kasarani/244, paid the majority of the purchase price, and taken possession of the land. The 1st Respondent did not dispute the sale or the Petitioner’s occupation. In the absence of any...
Source-derived case information.
- Citation
- [2017] KEELC 1704 (KLR)
- Parties
- Applicant: Benedict Ndolo Kilonzi; Respondent: Nyamu Katungo; Respondent: Nzei Nyamu
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- ? 193 of 2012
- Procedural Posture
- Constitutional Petition / Judgment
- Outcome
- Petition allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Land Ownership, Sale of Land, Trusts in Land, Registration of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benedict Ndolo Kilonzi
Applicant
Nyamu Katungo
Respondent
Nzei Nyamu
Respondent
Procedural Posture
Constitutional Petition / Judgment
Legal Issues
- 1 Whether the Petitioner is entitled to be declared the lawful owner of four acres of Kathivo/Kasarani/244.
- 2 Whether the 1st Respondent holds the suit land in trust for the Petitioner.
- 3 Whether the Petitioner is entitled to an order for registration of the four acres in his name.
Ratio Decidendi
The court found that the Petitioner had entered into a valid sale agreement with the 1st Respondent for four acres of Kathivo/Kasarani/244, paid the majority of the purchase price, and taken possession of the land. The 1st Respondent did not dispute the sale or the Petitioner’s occupation. In the absence of any contrary evidence or response from the Respondents, the court held that the 1st Respondent was holding the four acres in trust for the Petitioner. The Petitioner was therefore entitled to a declaration of ownership and an order for registration of the land in his name.
Court Disposition
Petition allowed as prayed.
Orders
- The Petitioner is declared the lawful owner of four acres of Kathivo/Kasarani/244.
- The Registrar of Lands, Kitui County, is directed to excise four acres from Kathivo/Kasarani/244 and register the same in the Petitioner’s name.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MACHAKOS
ELC. PETITION NO. 193 OF 2012
BENEDICT NDOLO KILONZI..........................................PETITIONER
VERSUS
NYAMU KATUNGO...............................................1ST RESPONDENT
NZEI NYAMU........................................................2ND RESPONDENT
JUDGMENT
1. In the Petition dated 4th June, 2012, the Petitioner averred that he bought a parcel of land known as Kathivo/Kasarani/244 from the 1st Respondent; that he paid the entire purchase price and that he has since developed the suit land.
2. It is the Petitioner’s case that in January, 2012, the 2nd Respondent, in cahoots with the 1st Respondent, trespassed on the suit land thus infringing on the Petitioner’s right to own the suit land.
3. The Petitioner is praying for an order declaring him the lawful owner of the suit land and for an order directing the Registrar of Lands, Kitui County, to excise four (4) acres of land from the suit land and register the same in his name.
4. Although the Respondents were served with the Petition, they never filed Affidavits in response to the Petition.
5. The matter proceeded for hearing on 27th February, 2017 by way of viva voce evidence.
6. The Petitioner, PW1, informed the court that he bought a portion of the suit land measuring approximately four (4) acres from the 1st Defendant.
7. According to PW1, it is the Respondents who were initially using the land although he is now in occupation of the same.
8. PW1 produced in evidence the Sale Agreement dated 17th February, 2003 between himself and the 1st Respondent.
9. The Petitioner’s advocate submitted that under the Constitution, a person has a right to acquire and own property anywhere in Kenya; that the Petitioner acquired the suit land legally and that having received the full purchase price, the 1st Respondent is holding the suit land in trust for the Petitioner.
10. Counsel submitted that the Petitioner’s interest is in respect of the four (4) acres that he purchased.
11. Counsel relied on the case of L.N. vs. S.M.M (2013) eKLR and Gissing vs. Gissing (1971) AC 886 which I have considered.
12. It is not in dispute that the 1st Respondent is the registered proprietor of a parcel of land known as Kathivo/Kasarani/244.
13. It is also not in dispute that the Petitioner, vide an Agreement dated 17th February, 2003, purchased four (4) acres out of the suit property.
14. The Petitioner produced in evidence the Agreement of Sale dated 17th February, 2003.
15. According to the said Agreement, the Petitioner did pay the 1st Respondent Kshs. 150,000 out of the purchase price of Kshs. 160,000. The balance was to be paid after the transfer of the purchased land to the Petitioner.
16. Considering that the 1st Respondent has not denied that he sold to the Petitioner a portion of the suit land, I find and hold that the 1st Respondent is holding the said land in trust for the Petitioner.
17. For those reasons, I allow the Petitioner’s Petition dated 4th June, 2012 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.
O. A. ANGOTE
JUDGE