[2013] KEHC 5867 (KLR)
The court found that the Plaintiff, having produced the original title deed and being registered as proprietor by transmission, is the absolute and indefeasible owner of the Suit Property under the Land Registration Act. The Defendant, having failed to enter appearance or file a defence, did not establish any legal...
Source-derived case information.
- Citation
- [2013] KEHC 5867 (KLR)
- Parties
- Plaintiff: Bernard Mbugua Wairimu; Defendant: Esther Nyathira Muhia
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 141 of 2011
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the Plaintiff as prayed in the Plaint.
- Judges
- MM Gitumbi
- Legal Topics
- Title Registration, Vacant Possession, Eviction, Indefeasibility of Title
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Mbugua Wairimu
Plaintiff
Esther Nyathira Muhia
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the absolute and indefeasible owner of the Suit Property under the Land Registration Act.
- 2 Whether the Defendant has any legal right to occupy or construct on the Suit Property.
- 3 Whether the Plaintiff is entitled to orders for vacant possession or eviction of the Defendant from the Suit Property.
Ratio Decidendi
The court found that the Plaintiff, having produced the original title deed and being registered as proprietor by transmission, is the absolute and indefeasible owner of the Suit Property under the Land Registration Act. The Defendant, having failed to enter appearance or file a defence, did not establish any legal right to the property. The Plaintiff's title was not impeached, and the Defendant's occupation was unlawful. The Plaintiff is entitled to exercise all rights of ownership, including seeking vacant possession or eviction of the Defendant. The court therefore granted judgment as prayed in the Plaint, ordering the Defendant to vacate or be evicted from the Suit Property.
Court Disposition
Judgment for the Plaintiff as prayed in the Plaint.
Orders
- The Defendant shall tender vacant possession of the portion of land out of parcel No. Ruiru/Ruiru East Block 2/958 to the Plaintiff.
- In the alternative, the Defendant shall be forcibly evicted from the Suit Property with the assistance of the Officer Commanding Station Ruiru Police Station.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC. CASE NO. 141 OF 2011
BERNARD MBUGUA WAIRIMU ……………………..………..PLAINTIFF
VERSUS
ESTHER NYATHIRA MUHIA ……………….………………..DEFENDANT
JUDGMENT
A suit was filed by the Plaintiff by his Plaint dated 30th March 2011 in which he sought for judgment against the Defendant as follows:-
An order compelling the Defendant to tender vacant possession of the portion of land out of land parcel No. Ruiru/Ruiru East Block 2/958 (hereinafter referred to as the “Suit Property”) and in the alternative an order in favour of the Plaintiff to forcibly evict the Defendant from the Suit Property and the same be effected with the assistance of the Officer Commanding Station Ruiru Police Station.
That the Plaintiff be granted costs of this Suit with interests thereof.
Any other or further relief that this Honourable Court may deem just and fit to grant.
FACTS
The Plaintiff submitted that he is the registered proprietor of the parcel of land identified as RUIRU/RUIRU EAST BLOCK 2/958, which is the Suit Property, having been registered as such on 21/1/2011 by transmission pursuant to a Certificate of Confirmation of Grant issued in Succession Cause No. 515 of 2009 Estate of Susanah Wairimu Mbugua alias Susan Wairimu Mbugua alias Susana Wairimu Mbugua at Thika. He further submitted that the Defendant unlawfully and without any colour of right encroached on the Suit Property in a portion measuring approximately 40 by 80 feet and commenced construction of some permanent structures. He further submitted that despite demand and notice of intention to sue having been given by the Plaintiff to the Defendant, the Defendant adamantly failed to vacate the Suit Property thereby prompting the filing of this suit.
In his evidence, the Plaintiff produced his original title deed in respect of the Suit Property which was in his name. He further explained that before he was registered as proprietor of the Suit Property, the same was registered in the name of his mother. He further explained that during that time, an agent named Salome Njoki Nyoro purported to sell the portion of land to the Defendant at a cost of Ksh. 30,000/-. He explained that he had sought to refund the Defendant the sum of Ksh. 30,000/- she paid for the land but she refused to accept the money back. He stated that the Defendant refused to vacate the Suit Property.
Service of the Summons to Enter Appearance and the Plaint were duly served upon the Defendant but she failed to enter appearance or file a defence. As a result, Interlocutory Judgment was entered against her on 23/6/2011 and the matter proceeded for formal proof.
LAW
Section 26 (1) of the Land Registration Act provides:-
“The Certificate of Title Issued by the Registrar upon registration or …transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner…”
Further, Section 24(a) of the same statute provides as follows:
“Subject to this Act, the registration of a person as a proprietor of Land shall vest in that person the absolute ownership of that land together with all right and privileges belonging or appurtenant thereto.”
ANALYSIS
In this case, the Plaintiff produced in evidence his original Title Deed in respect of the Suit Property. As per the law cited above, this court is duty bound to take this to be prima facie evidence that the Plaintiff is indeed the absolute and indefeasible owner of the Suit property. Further to that, this court finds that the Plaintiff is entitled to exercise his full rights and privileges belonging or appurtenant to the Suit Property to the exclusion of all others, including the Defendant in this Case. Accordingly, this court finds that the Defendant has absolutely no rights over the Suit Property and should vacate or be evicted as prayed in the Plaint.
CONCLUSION
In conclusion, this court enters Judgment against the Defendant as prayed in the Plaint.
SIGNED AND DELIVERED AT NAIROBI ON THE 7TH
DAY OF JUNE 2013.
MARY M. GITUMBI
JUDGE