[2018] KEELC 1066 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 181 OF 2017

BENJAMIN MUOKA VENGI...............................................PLAINTIFF

VERSUS

MUTUA NYONYWE MBEVE...................................1ST DEFENDANT

WAWIRA SUSAN PERIS...........................................2ND DEFENDANT

JUDGMENT

1. This suit was commenced by way of a Plaint dated 4th April, 2013. In the Plaint, the Plaintiff averred that in the year 2002, the 1st Defendant sold to the Plaintiff parcel of land known as Machakos Town Block 3/351 measuring approximately 2. 04acres; that the consent of the Land Control Board for the transfer of the suit land was granted and that the Defendant signed all the required completion documents.

2. It is the Plaintiff’s case that the original Title Deed of the suit land mysteriously disappeared from his residence around the same time when his now estranged wife left his house in the year 2008 and that he later discovered that the 1st Defendant had fraudulently transferred the suit land to the 2nd Defendant. The Plaintiff is seeking for a declaratory order that the transfer of the suit land to the 2nd Defendant was fraudulent, and unlawful; an amendment, rectification and cancellation of the register of the suit land to remove the name of the 2nd Defendant and replace it with his name and an order of permanent injunction restraining the Defendants from trespassing or transferring the suit property.

3. In his Defence, the 1st Defendant deponed that he was not privy to the failure by the Plaintiff to register the transfer documents or the alleged disappearing of the original Title Deed and that he never transferred the suit property to the 2nd Defendant.

4. Although the 2nd Defendant was served by way of substituted service, she neither entered appearance nor filed a Defence. The hearing proceeded in the absence of both Defendants.

5. The Plaintiff informed the court that the 1st Defendant sold to him the suit property and that the 1st Defendant signed all the completion documents in respect to the suit land and obtained the Land Control Board consent for the transfer of the suit land to him. Although the 1st Defendant handed to him the original Title Deed, the Plaintiff informed the court that he realised that the same was missing when he presented the completion documents for registration.

6. However, he later discovered that the 2nd Defendant, who is his estranged wife, had been registered as the proprietor of the suit land.

7. PW1 stated that the 2nd Defendant carried away all the documents in respect to the suit land, including the Sale Agreement and the original Title Deed. The Plaintiff produced in evidence the consent of the Board and the transfer document which was duly executed and witnessed by an advocate. PW1 also produced the extract of the register of the suit land which shows that the land is currently registered in favour of the 2nd Defendant.

8. PW2 informed the court that he witnessed the signing of the Agreement between the Plaintiff and the 1st Defendant in respect of the suit land; that the land was vacant when the Plaintiff purchased it and that after buying the land, the Plaintiff built two permanent houses.

9. The Plaintiff’s advocate filed submissions in which he reiterated the evidence of PW1 and PW2; that the 1st Defendant denied ever transferring the suit land to the 1st Defendant and that the 2nd Defendant has not controverted the Plaintiff’s evidence.

10. The evidence before me shows that parcel of land known as Machakos Town Block 3/351 was registered in favour of the 1st Defendant on 23rd May, 1997. The extract of the register shows that on 24th June, 2008, the Plaintiff registered a caution on the said land. This caution was removed by the Registrar of Land on 31st March, 2011 culminating in the registration of the land in favour of the 2nd Defendant on 18th May, 2011.

11. The evidence by PW1 and PW2 is that the Plaintiff purchased the suit land from the 1st Defendant and that the 1st Defendant signed all the completion documents in favour of the Plaintiff. The 1st Defendant also obtained the consent of the Land Control Board to transfer the land to the Plaintiff and gave to the Plaintiff the original Title Deed. However, the said original Title Deed and the other completion documents disappeared from the Plaintiff’s house when his estranged wife, the 2nd Defendant left.

12. The 1st Defendant denied in his Statement of Defence of having transferred the suit land to the 2nd Defendant. On the other hand, the 2nd Defendant did not deny that she had the suit land fraudulently registered in her name.

13. In view of the evidence before me, I am satisfied that the 2nd Defendant fraudulently had the suit land registered in her name after leaving her matrimonial home. Indeed, having taken possession of the original Title Deed and other completion documents, it was not difficult for the 2nd Defendant to present the said documents to the Land Registrar on the pretext that she had purchased the land.

14. Consequently, I find that the Plaintiff has proved his case on a balance of probabilities. I therefore allow the Plaint dated 4th April, 2013 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 19TH DAY OF OCTOBER, 2018.

O.A. ANGOTE

JUDGE