[2018] KEELC 4305 (KLR)
The court found that the plaintiff's evidence was uncontroverted, and that both the Kilungu District Magistrate’s Court judgment and the Land Adjudication Committee's determination, which awarded plot number 1245 to the plaintiff, had not been overturned on appeal. The defendant's acquisition of the title deed was...
Source-derived case information.
- Citation
- [2018] KEELC 4305 (KLR)
- Parties
- Plaintiff: Charles Mutuku Musomba; Defendant: Rhoda Katuku
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Makueni
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 38 of 2017
- Procedural Posture
- Land Dispute / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Land Adjudication, Title Cancellation, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mutuku Musomba
Plaintiff
Rhoda Katuku
Defendant
Procedural Posture
Land Dispute / Judgment
Legal Issues
- 1 Whether the defendant lawfully acquired the title deed for land parcel number 1245.
- 2 Whether the plaintiff is entitled to cancellation of the defendant's title and registration of the land in his name.
Ratio Decidendi
The court found that the plaintiff's evidence was uncontroverted, and that both the Kilungu District Magistrate’s Court judgment and the Land Adjudication Committee's determination, which awarded plot number 1245 to the plaintiff, had not been overturned on appeal. The defendant's acquisition of the title deed was therefore unjustified. The court held that the plaintiff had established his case on a balance of probabilities and was entitled to the cancellation of the defendant's title and registration of the land in his name.
Court Disposition
Judgment for the plaintiff.
Orders
- The certificate of title for land parcel number 1245 at Maiani land adjudication section issued to the defendant is cancelled.
- Land parcel number 1245 to be registered in the name of the plaintiff.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MAKUENI
ELC CASE NO. 38 OF 2017
CHARLES MUTUKU MUSOMBA......................................PLAINTIFF
VERSUS
RHODA KATUKU.............................................................DEFENDANT
JUDGEMENT
1. The plaintiff is a farmer and a resident of Enzai in Makueni County. He has sued the defendant for acquiring title deed for plot number 1245 which plot the plaintiff occupies.
2. By his plaint dated 13th March, 2017 and filed in court on the 17th March, 2017 the plaintiff prays for judgement against the defendant for;
a. An order for cancellation for certificate of title for land parcel no. 1245 at Maiani land adjudication section and be registered in the names of the plaintiff.
b. Costs of this suit.
3. On the 13th February, 2017 the defendant was served with summons to enter appearance and to file her defence as can be seen from the affidavit of service dated 2nd May, 2017. She neither entered appearance nor did she file her defence resulting in the matter proceeding as undefended suit.
4. During the hearing of the plaintiff’s case on the 19th September, 2017, he told the court that he had a land dispute with the defendant’s husband in Kilungu District Court vide case number LC 72/78. He said that the District Court in its judgement fixed the boundary between him and Mathembo Mukuva and Kamolo Masai. The plaintiff produced the judgement in question as PEX no 3. He said that pursuant to the court’s judgement, the adjudication officers visited the ground where they allocated the disputed two parcel numbers to him. The plaintiff says he is in possession of the two plots which are 1245 and 1726. He revealed that he was born in 1940 in the said parcel number 1245. He went on to say that he lodged his claim with the adjudication committee in 1989. He produced the determination of the committee as PEXno. 3 and pointed out the committee visited the suit land and planted sisal plants after determining that plot numbers 1245 and 1726 were his. He said that when he visited the land office in Makueni, he learnt that the defendant had acquired title deed for plot number 1245. He added that the lands officers advised him to sue the defendant and hence this suit after his advocate wrote a demand letter (PEX no.1) to her.
5. Mr. Mwema for the plaintiff in his submissions told the court that this is a declaratory suit and that this court has jurisdiction to issue declaratory orders as is envisaged in section 7(b) of the Environment and Land Court Act.
6. The counsel relies on the persuasive case of in pyx granite Co. Ltd Vs Ministry of Housing & Local Government (1958) 1 OB 554 which authority the counsel never supplied to the court.
7. The counsel urged the court to declare the plaintiff the lawful owner of parcel number Makueni/Maiani/1245 on the basis of uncontroverted evidence.
8. I agree with the counsel that this court has jurisdiction to issue declaratory orders. I have looked at the plaint and I see no prayer for declaratory order save that the plaintiff seeks to have title deed issue to the defendant in respective of land parcel number 1245 be cancelled. Be that as it may, the evidence by the plaintiff is uncontroverted as was submitted by the plaintiff’s counsel. The evidence on record is that the judgement in Kilungu District Magistrate’s Court case Number L 72/78 and the proceedings of the Land Adjudication Committee held on 5th July, 1988 were never overturned on appeal. The two decisions were in favour of the plaintiff in respect of plot number 1245. That being the case, I hold that the defendant was not justified to acquire title deed on 5th November, 2002 in her name as can be seen from the certificates of official search annexed to the plaintiff’s counsel’s submissions and which document ought to have been produced in evidence by the plaintiff himself. The title deed must be cancelled and/or revoked. I am satisfied that the plaintiff, has on a balance of probabilities, a cause of action against the defendant. In the circumstances, I hereby proceed to enter judgement for him and against the defendant in terms of prayers (a) and (b) of the plaint.
Signed, dated and delivered at Makueni on this 21st Day of February, 2018
MBOGO CG
JUDGE
In the presence of;
Mr. Kwemboi Court Assistant
No appearance for the plaintiff
Plaintiff present