[2013] KEHC 2362 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he purchased the suit property from the defendant, paid the agreed consideration, and developed the land. The defendant failed to transfer the title deed and did not appear to contest the claim. The court was satisfied with the...
Source-derived case information.
- Citation
- [2013] KEHC 2362 (KLR)
- Parties
- Plaintiff: Cromwel Mwaluga Mkala; Defendant: Sefu Abdalla Mwakulafia
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 637 of 2011
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff as prayed in the plaint with costs and interest.
- Judges
- SN Mukunya
- Legal Topics
- Ownership Dispute, Mandatory Injunction, Transfer of Land, Title Deed, Sale of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cromwel Mwaluga Mkala
Plaintiff
Sefu Abdalla Mwakulafia
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a mandatory injunction restraining the defendant from selling, alienating, developing, or realigning Plot No. 1002 Shanzu Settlement Scheme.
- 2 Whether the plaintiff is the rightful owner of the suit property and entitled to its transfer.
- 3 Whether the plaintiff is entitled to costs and interest.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he purchased the suit property from the defendant, paid the agreed consideration, and developed the land. The defendant failed to transfer the title deed and did not appear to contest the claim. The court was satisfied with the documentary evidence and the plaintiff's testimony, and thus granted the prayers sought in the plaint, including a mandatory injunction restraining the defendant from dealing with the property, a declaration of ownership in favor of the plaintiff, and an order for transfer of the suit property. Costs and interest were also awarded to the plaintiff.
Court Disposition
Judgment for the plaintiff as prayed in the plaint with costs and interest.
Orders
- A mandatory injunction is issued restraining the defendant from selling, alienating, developing, or realigning Plot No. 1002 Shanzu Settlement Scheme.
- The plaintiff is declared the owner of Plot No. 1002 Shanzu Settlement Scheme.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
HCC. NO. 637 OF 2011
CROMWEL MWALUGA MKALA ........................................................ PLAINTIFF
- VERSUS-
SEFU ABDALLA MWAKULAFIA .......................................................DEFENDANT
JUDGEMENT
[1] The plaintiff filed this suit on 7th December 2011. He claims from the defendant a mandatory injunction to stop the defendant from selling, alienating, developing and/or realign with Plot No. 1002 Shanzu Settlement Scheme. He further asks the court to declare him the owner of the suit plot and to order the defendant to transfer the suit property to him. Finally he asks for costs of this suit.
This suit came for formal proof on 19th June 2013. The Judgment had been entered on 30th April 2012. The Plaintiff said the he is employed at Bamburi Cement. The he knows the defendant because he sold to him plot No. 2839 on 4th June 2006. He produced documents to prove such sale. He said he paid Kshs. 100,000 . That the defendant thereafter asked for some more money and was paid a further Kshs. 20,000 through the Chief of the area.
[2] He said that he has not received the title deed until now. This was inspite of the fact that he reported the matter to the Chief and they have looked for the defendant and cannot find him.
He said that he has developed the plot and planted trees. He said he wanted the Court to grant him the orders so that the defendant is prevented from selling the land. He said that Shanzu Settlement Scheme is within Mombasa Municipality.
I am satisfied that the plaintiff has proved his claim in the plaint on a balance of probabilities and I grant his prayers in the plaint as prayed with costs and interest.
Dated and delivered in open Court at Mombasa this 23rd day of August, 2013.
S.N. MUKUNYA
JUDGE
In the presence of:
Okanga Advocate for the plaintiff/applicant
No appearance for the defendant/respondent