[2019] KEELC 413 (KLR)
The court found that the applicant had demonstrated sufficient grounds for the production of the original documents relating to the transfer of the suit land, as these documents are central to the determination of the dispute and are in the custody of the Land Registrar. The respondent did not oppose the application...
Source-derived case information.
- Citation
- [2019] KEELC 413 (KLR)
- Parties
- Applicant: Dalco Trading Centre; Respondent: Kamaita Imathiu; Respondent: Lawrence N. Mugambi; Respondent: Mohamed Hashin Jamah; Respondent: Land Registrar, Tharaka Nithi County
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 18 of 2019
- Procedural Posture
- Miscellaneous Application / Interlocutory Application Ruling
- Outcome
- application allowed
- Legal Topics
- Discovery of Documents, Land Title Transfer, Fraudulent Conveyance, Custody of Land Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dalco Trading Centre
Applicant
Kamaita Imathiu
Respondent
Lawrence N. Mugambi
Respondent
Mohamed Hashin Jamah
Respondent
Land Registrar, Tharaka Nithi County
Respondent
Procedural Posture
Miscellaneous Application / Interlocutory Application Ruling
Legal Issues
- 1 Whether the Land Registrar should be compelled to produce original documents relating to the transfer of the suit land.
- 2 Whether the plaintiff is entitled to certified copies of documents supporting the transfer of the suit land.
- 3 Whether the absence of these documents prejudices the plaintiff's case and constitutional rights.
Ratio Decidendi
The court found that the applicant had demonstrated sufficient grounds for the production of the original documents relating to the transfer of the suit land, as these documents are central to the determination of the dispute and are in the custody of the Land Registrar. The respondent did not oppose the application substantively and undertook to comply. The court held that the interests of justice require that the Land Registrar be compelled to produce the documents and supply certified copies to the applicant. The absence of these documents would prejudice the fair trial of the matter and potentially infringe on the plaintiff's constitutional rights. Accordingly, the court granted the...
Court Disposition
application allowed
Orders
- The 4th respondent is granted 30 days to fully comply with Order 11 CPR, including production of available documents as prayed.
- During the hearing of the suit, the Land Registrar, Chuka, shall attend court to produce the relevant documents.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT CHUKA
CHUKA ELC CASE NO. 18 OF 2019
FORMERLY MARIMANTI ELC 48 OF 2017
FORMERLY CHUKA ELC 191 OF 2017
DALCO TRADING CENTRE...........................................................APPLICANT/PLAINTIFF
VERSUS
KAMAITA IMATHIU..........................................................1ST RESPONDENT/DEFENDANT
LAWRENCE N. MUGAMBI...............................................2ND RESPONDENT/DEFENDANT
MOHAMED HASHIN JAMAH..........................................3RD RESPONDENT/DEFENDANT
LAND REGISTRAR, THARAKA NITHI COUNTY.......4TH RESPONDENT/DEFENDANT
RULING
1. This application is dated 4th December, 2019 and it has been brought to court under sections 1A, 1B, 3A and 63 E of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, Section 7A of the Evidence Act and any other enabling provisions of the law.
2. The application seeks the following orders:
1. That the Land Registrar, Ministry of Lands Chuka, the 4th defendant herein be ordered to physically avail in court during the hearing of this suit the following original documents in respect of L.R.NO.S.Tharaka/Tunyai ‘A’38 measuring 12. 5 Hectares the suit premises herein the same being:-
a. The Daybook Number and/or presentation book number in respect of the lodgment of the Application for Registration of the transfer of the suit premises from the 1st defendant to the 2nd defendant.
b. The Register showing the recording of the Daybook Number as stated in prayer 1 (a) going backwards and, forward from the point of the entry of the Daybook Number in issue for a period of two months.
c. The valuation Form in respect of the transfer of the suit land from the 1st defendant to the 2nd defendant as duly filled or drawn by the Government Valuer for the purposes of Stamp Duty payable for the transfer of the suit land as aforesaid.
d. The Land Control Board Consent sanctioning the transfer of the suit land from the 1st defendant to the 2nd defendant.
e. The official Government receipts issued by the Land Registry, Chuka to complete the transfer of the suit land from the 1st Defendant to the 2nd defendant.
2. That the Land Registrar Ministry of Lands Chuka, the 4th defendant herein be ordered to, within seven (7) days of being so ordered and serve, supply the Advocates on record for the plaintiff with the certified photocopies of all the documents mentioned in prayer No. 1.
3. That the Land Registrar Chuka , the 4th defendant be ordered to supply to the Court and the Advocates for the plaintiff a list of serial Numbers of ten (10) certificates of tittles issued before and after the certificate of title in respect of the suit land complete with the Land reference Numbers to which they relate.
4. That the costs of this application be costs in the cause.
3. The application has the following grounds:-
a. The suit land did change hands in the manner the plaintiff contends is fraudulent and/or unlawful.
b. The suit land did change hands in the manner the plaintiff contends without the necessary lawful and mandatory supportive documents.
c. The 4th defendant has declined to avail to the plaintiff copies of any documents supporting the changes.
d. The 4th defendant inspite of being served with all the necessary pleadings has failed to answer and provide the necessary documents.
e. The 4th defendant is the only lawful custodian of the named documents.
f. The suit SHALL not appropriately proceed in the absence of the documents.
g. The constitutional rights of the plaintiff are at stake and/or have been adversely affected and the availability of this documents SHALL monumentally assist the court and the parties.
h. All entries on the land’s “Green Cards” affecting change of proprietary rights MUST be supported by supporting and/or sanctioning documents.
i. An interlocutory judgement in matters of this nature will legally create an unnecessary prejudice.
4. The application is buttressed by the affidavit of Patrick Karani sworn on 4th December, 2019.
5. When the application was heard on 16th December, 2019. Mr. Siagi told the court that in the greater interest of justice the application ought to be allowed. Mr. Kiongo, Senior Litigation Counsel, for the 5th respondent told the court that the 5th respondent had failed to trace the required documents except the Green Card. He requested the court to grant him 30 days so that the Land Registrar could strive to obtain the apposite documents. He told the court that he would annex the available documents to his compliance documents and serve them upon the other parties.
6. The following orders are issued:-
a. The 5th defendant is granted 30 days to fully comply with order 11 CPR, which compliance, as undertaken by Mr. Kiongo, his counsel, should include available documents as prayed in this application.
b. During hearing of the suit, the Land Registrar, Chuka, will come to court to produce apposite documents.
c. Parties are to come to court for directions on 4th February, 2020.
7. Costs shall be in the cause.
Delivered in open Court at Chuka this 16th day of December, 2019 in the presence of:
CA: Ndegwa
Siagi for the Plaintiff
M/S Kithaka for the 3rd Defendant
Kiongo for the 4th Defendant
P. M. NJOROGE,
JUDGE.