[2015] KEELC 96 (KLR)
The court found that the plaintiff was the sole shareholder entitled to the fourteen acres in question, as evidenced by the share certificate issued solely in his name. The first defendant, without the plaintiff's consent, obtained clearance and caused the land to be registered in their joint names. The defendants...
Source-derived case information.
- Citation
- [2015] KEELC 96 (KLR)
- Parties
- Plaintiff: Charles Wafula S. Sakwa; Defendant: Moses Sakwa Wafula; Defendant: Luhya Estates Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 93 of 2014
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff. Title deed in joint names cancelled; new title to be issued solely in plaintiff's name. Defendants to pay costs.
- Judges
- EO Obaga
- Legal Topics
- Shareholder Land Entitlement, Title Cancellation, Joint Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Wafula S. Sakwa
Plaintiff
Moses Sakwa Wafula
Defendant
Luhya Estates Limited
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to sole ownership of LR. No. Kwanza/Kwanza Block 3/Luhya/87 based on his shareholding in the second defendant.
- 2 Whether the title deed issued in joint names of the plaintiff and first defendant should be cancelled and re-issued solely in the plaintiff's name.
- 3 Whether the first defendant unlawfully procured joint registration without the plaintiff's consent.
Ratio Decidendi
The court found that the plaintiff was the sole shareholder entitled to the fourteen acres in question, as evidenced by the share certificate issued solely in his name. The first defendant, without the plaintiff's consent, obtained clearance and caused the land to be registered in their joint names. The defendants failed to contest the plaintiff's evidence or respond to the demand letter or court summons. The court held that the title deed issued in joint names was improper and should be cancelled, with a new title issued solely in the plaintiff's name. The plaintiff was declared the sole owner of LR. No. Kwanza/Kwanza Block 3/Luhya/87, and the defendants were ordered to pay costs.
Court Disposition
Judgment for the plaintiff. Title deed in joint names cancelled; new title to be issued solely in plaintiff's name. Defendants to pay costs.
Orders
- The title deed issued in the joint names of the plaintiff and first defendant for LR. No. Kwanza/Kwanza Block 3/Luhya/87 is cancelled.
- A new title deed shall be issued solely in the name of the plaintiff.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 93 OF 2014
CHARLES WAFULA S. SAKWA ............. PLAINTIFF
VERSUS
MOSES SAKWA WAFULA..............1ST DEFENDANT
LUHYA ESTATES LIMITED.............2ND DEFENDANT
J U D G M E N T
The plaintiff is a brother to the first defendant. The second defendant is a limited liability company whose business among others was purchase of land for distribution among its shareholders. The plaintiff was a shareholder of the second defendant where he had seven shares. Each share was equivalent to two acres.
The plaintiff brought this case against the defendants seeking an order of cancellation of title in respect of LR. No. Kwanza/Kwanza Block 3/Luhya/87 which is in his name and that of the first defendant and for an order that the first defendant do surrender the title which he is holding. The defendants who were duly served with summons to enter appearance neither entered appearance nor filed defence. The case therefore proceeded by way of formal proof.
PLAINTIFF'S CASE
The plaintiff testified that he is a shareholder of the second defendant. In or around 1980, he acquired seven shares at the second defendant. He was issued with a share certificate in his name. He produced a copy of share certificate as Exhibit 1. Each share was equivalent to two acres. He was therefore entitled to fourteen acres.
For one to obtain title he had to get clearance from the company. Unknown to the plaintiff,the firstdefendant. who is a younger brother of the plaintiff who was staying with him went to the second defendant and obtained clearance in respect of the fourteen acres due to the plaintiff. The first defendant then proceeded to the lands office where he obtained title for the fourteen acres in the joint names of himself and the plaintiff.
The plaintiff went to the lands office Kitale where he did an official search which showed that title had been issued in his name and that of the first defendant. He produced a copy of official search as Exhibit 2. The plaintiff contends that he never acquired the shares at the second defendant with his brother and that it was wrong for the second defendant to issue a joint clearance certificate. The first defendant has since been keeping the title deed and the plaintiff's efforts to access it have been in vain. It is on this basis that the plaintiff is seeking for the orders mentioned hereinabove.
ANALYSIS OF EVIDENCE
The plaintiff has demonstrated that he is a shareholder with the second defendant. The share certificate was issued on 1/1/1980 in his sole name. A title deed was issued in the joint names of the plaintiff and the first defendant on 11/2/2014. The plaintiff wrote a demand letter to the defendants complaining that the second defendant had issued a clearance certificate to the first defendant which enabled him to obtain title in his name and that of the plaintiff. The two defendants never responded to the demand letter. When the two defendants were served with summons to enter appearance and file defence, they neither entered appearance nor filed defence. The evidence of the plaintiff therefore remains uncontroverted.
DISPOSITION
It is clear that the defendants colluded to have the title issued in joint names when the share certificate was not in the joint names. I find that the plaintiff has proved his case against the two defendants on a balance of probabilities. The plaintiff is the sole owner of land known as Kwanza/Kwanza Block 3/Luhya/87. The title deed issued in the joint names of the plaintiff and first defendant shall be cancelled and the same issued in the name of the plaintiff. The first defendant shall return the title deed he is holding to the plaintiff. The two defendants shall pay costs of this suit to the plaintiff.
Dated, signed and delivered at Kitale on this 28th day of October, 2015.
E. OBAGA
JUDGE
In the presence of M/s Munialo for Plaintiff.
Court Assistant - Omulindi.
E. OBAGA
JUDGE
28/10/15