[2008] KEHC 3068 (KLR)
The court found that the plaintiff failed to produce any documentary evidence of title to Gichugu/Settlement Scheme/736. The letters relied upon by the plaintiff were not documents of title and did not confer ownership. The council, as the original proprietor, lawfully subdivided and allocated the parcels: plot 735...
Source-derived case information.
- Citation
- [2008] KEHC 3068 (KLR)
- Parties
- Plaintiff: Ephantus Nyaga Mbirutu; Defendant: Engelus Ndambiri
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 18 of 2004
- Procedural Posture
- Civil Case / Judgment
- Outcome
- suit dismissed with costs to the defendant
- Legal Topics
- Land Allocation, Title Registration, Public Land, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ephantus Nyaga Mbirutu
Plaintiff
Engelus Ndambiri
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to recover parcel Gichugu/Settlement Scheme/736 from the defendant.
- 2 Whether the allocation and registration of the suit land to the defendant was lawful.
- 3 Whether the plaintiff proved fraud against the defendant.
Ratio Decidendi
The court found that the plaintiff failed to produce any documentary evidence of title to Gichugu/Settlement Scheme/736. The letters relied upon by the plaintiff were not documents of title and did not confer ownership. The council, as the original proprietor, lawfully subdivided and allocated the parcels: plot 735 to the plaintiff and plot 736 to the defendant. The plaintiff's allegations of fraud were unsupported by evidence. The defendant's registration as proprietor was regular, and the plaintiff retained his allocated parcel. Accordingly, the plaintiff was not entitled to the orders sought, and the suit was dismissed with costs to the defendant.
Court Disposition
suit dismissed with costs to the defendant
Orders
- The plaintiff's suit is dismissed.
- Costs awarded to the defendant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Civil Case 18 of 2004
EPHANTUS NYAGA MBIRUTU………………….………..PLAINTIFF
VERSUS
ENGELUS NDAMBIRI……………...……………………DEFENDANT
JUDGMENT
In this case the plaintiff sued the defendant to recover a parcel of land known as Gichugu/Settlement Scheme/736 which is in the name of Defendant. The plaintiff alleged that the said parcel of land was part of plot No. Gichugu/Settlement/Scheme/51. The plaintiff alleged that he was the owner of Gichugu/Settlement/Scheme/51. Evidence of green card regarding this parcel of land shows that on 6/2/58 the proprietor was the Trust Land Board which is now called County Council of Kirinyaga and the land was subdivided into two plots numbered Gichugu/Settlement Scheme/735and 736 registered in the name of Kirinyaga County Council. On 16/2/1999 the proprietor of plot No. 735 was Ephantus Nyaga Mbirutu, the plaintiff. The other portion number 736 was on 11/3/1977 registered in the name of Kirinyaga County Council and on 22/11/79 the proprietor was Angelus Ndambiri Njeru the defendant. The plaintiff produced Exhibit 1 a letter dated 16/9/97 where his name is listed for allocation of leaseholds land parcel No. Gichugu/Settlement/Scheme/51. It is to be noted that by 1997 the land had already been subdivided as above stated. Plaintiffs Exhibit 2 alludes to the reversing the decision to allocate the suit land in favour of Defendant. “The Council feels that the allocation was rather dubious since Mr. Ndambiri was not the registered owner of the land at Difathas but was only on the process of buying the land” This letter was dated 8/11/1982 by which time the defendant Exhibits 1, 2, and 3 were already effected. What is clear is that the suit land Gichugu/Settlement/Scheme/51 was originally registered in the name of the council. The Council is not a party in this suit. The Council appears to have subdivided the parcel of land into two portions. One portion 735 was transferred to the plaintiff who was landless and a long serving Ex-employee of the council. The other portion 736 was allocated by the council to the defendant who alleges that there was an exchange of his land at Difathas market which the council wished to use for establishing Difatha market. From the evidence, the land was registered in 1958 in the name of the council. It was reserved for Water Department Project. The plaintiff was not able to show any document of title to land issued to him by the council. The two exhibits (letters 16/9/97 and 8/11/1982) are not documents of title. However, the plaintiff retains plot No. 735 which he was allocated on his application to the council by the council in the usual process. The plaintiff alleged fraud against the defendant but no evidence was adduced by the plaintiff to proof the same. The subdivision was processed by the council and the plaintiff was given public land free.
I have considered the plaintiff’s case and I find no evidence to warrant the orders prayed for in the plaint. The suit is therefore dismissed with costs to the Defendant.
It is so ordered
Dated this 8th April, 2008.
J. N. KHAMINWA
JUDGE
8/4/2008
Khaminwa– Judge
Njue – Clerk
Njeru Nyaga HB for Okwaro
Read in open court.
J. N. KHAMINWA
JUDGE