[2013] KEHC 1642 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

ENVIRONMENT & LAND COURT

CIVIL SUIT NO. 524OF 2011

DAVID NJAU GITU

FRANCIS KAIMURI

ALFRED CHEGE GITU

GEOFFREY MBIRUA GITU

(Suing as the administrators of the

Estate of the lateSimon Gitu Njau.............................PLAINITTS’

VERSUS

LAND REGISTRAR, THIKA.............................1ST DEFENDANT

MICHAEL WACHIRA MITHAMO.....................2ND DEFENDANT

JUDGEMENT

The Plaintiffs’ herein David Njau Gitu , Francis Kaimuri , Alfred Chege Gitu, and Geoffrey Mbirua Gitu suing as the Administrators of the Estate of the late Simon Gitu Njau have sued the Defendants , Land Registrar Thika, and Michael Wachira Mithamo seeking for various Orders:-

(a) That an order declaring the lateSimon Gitu Njau as the Legal and legitimate owner of the parcel of land known as Ruiru/Ruiru East Block 7/43.

(b) An order rectifying the land Register by cancelling the transfer of the parcel of land known as Ruiru/Ruiru East Block 7/43to the 2nd Defendant.

(c) An order declaring the title deed issued to the 2nd Defendant as null and void.

(d) A permanent injunction restraining the 2nd Defendant from alienating, disposing or otherwise dealing with the parcel of Land known as Ruiru/RuiruEast Block 7/43.

(e) Cost of this suit with interest at court rates until payment in full.

In the Plaint, the Plaintiffs alleged that at all material times relevant to this suit, the late Simon Gitu Njau was the legal and legitimate owner of the parcel of Land known as Ruiru/Ruiru East Block 7/43(herein after referred to as the suit property). It was further alleged that sometimes in the year 2006, the 2nd Defendant fraudulently caused the suit property to be transferred to him. The particulars of the fraud were stated in paragraph 5 of the Plaint. The Plaintiffs further averred that they brought to the attention of the 1st Defendant the instances of such fraud but 1st Defendant refused, neglected or declined to rectify the Land Register by cancelling the transfer of the suit property to the 2nd Defendant. That by virtue of 1st Defendants refusal, denial or negligence and the 2nd Defendant fraudulently and conversionary conduct, the estate of thelate Simon Gitu Njau has suffered and continues to suffer loss, and damage of being denied their legal title and use of the suit property.

The 2nd Defendant did not Enter Appearance and Interlocutory Judgement was entered against him on 9th October, 2012. The Attorney General on behalf of the 1st Defendant did not file Defence. The suit is therefore unopposed.

On 17/6/2013, the parties herein (Counsel for Plaintiff and State Counsel for the 1st Defendant) entered Consent in court. By consent, the parties agreed as follows:-

( 1) The Plaintiffs’ Plaint dated 28/9/2011 be allowed in terms of prayers No. (a) & (b).

(ii) The Court was to address prayers No. (c) (d) and (e) .

(iii) The witness statements and bundle of documents were to be adopted by the Court without calling their maker.

(iv) Parties were to put in written submissions.

The above consent was adopted by the court. Consequently the court enters Judgement for the Plaintiffs’ against the Defendants in terms of prayers No. (a) and (b) and Orders that:-

(a) Late Simon Gitu Njau is the Legal and Legitimate owner of the parcel of land known as Ruiru/Ruiru East Block 7/43.

(b) The Land Register be rectified cancelling the transfer of the parcel of land known as Ruiru/Ruiru East Block 7/43 to the 2nd Defendant.

I will now endeavour to deal with prayers No (c) (d) and (e).

The Plaintiffs have asked the Court to declare the title deed issued to 2nd Defendant as null and void. From the Documents attached to the Plaint, it is indeed evident that on 3/7/1998, Michael Wachira Mithamo was issued with title deed for Ruiru/Ruiru/East Block 7/43.

The 2nd Defendant did not enter appearance and interlocutory Judgement was entered against him. I have also seen a witness statement from one Jackson Kamau Wanjau a Registrar of Title who stated that the transaction No.10 on the Green Card was a forgery and the said entry is illegal as it is based on fraud.

Section 26 of the Land Registration Act 2012 provides that a title to a property can be subjected to challenge in the instances of fraud or misrepresentation or where the certificate has been acquired illegally, unprocedurallyor through a corrupt scheme.

In the instant suit, the Plaintiffs have alleged fraud which fraud has not been disputed by the proprietor- 2nd Defendant herein as he did not enter appearance nor file Defence. For these reasons, the court do declare that the title deed issued to the 2nd Defendant herein is null and void and proceeds to cancel it.

Having found that the Title Deed to 2nd Defendant is null and void, the Court proceeds to issue a Permanent Injunction as stated in prayer No. (d) of the Plaint. The 2nd Defendant is also condemned to pay costs.

The Court having considered the pleadings and the documents attached therein enters Judgement for the Plaintiffs’ against the Defendants as stated in the Plaint.

It is so ordered.

Dated and delivered this4th day of October, 2013.

L.N. GACHERU

JUDGE

In the Presence of:-

.................................. For the Plaintiffs

......................................For the Defendant

Lukas:Court Clerk

L.N. GACHERU