[2011] KEHC 2089 (KLR)
The court found that the Plaintiff had lawfully acquired and was registered as proprietor of the suit land. The subsequent transfer to the 1st Defendant, and then to the 2nd Defendant, was effected fraudulently and without the Plaintiff's knowledge or participation. The Gazette Notice and decree relied upon by the...
Source-derived case information.
- Citation
- [2011] KEHC 2089 (KLR)
- Parties
- Plaintiff: Erastus Munene Wanjohi; Defendant: Peter Karani Kabiru; Defendant: Danson Muriuki Kihara; Defendant: Attorney General for & on behalf of Land Registrar Kirinyaga
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 89 of 2010
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the Plaintiff. Suit land to be restored to Plaintiff. Permanent injunction granted. Costs to Plaintiff.
- Judges
- AO Muchelule
- Legal Topics
- Fraudulent Transfer, Rectification of Register, Ownership Dispute, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Munene Wanjohi
Plaintiff
Peter Karani Kabiru
Defendant
Danson Muriuki Kihara
Defendant
Attorney General for & on behalf of Land Registrar Kirinyaga
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the transfer of land parcel KABARE/GACHIGI/1033 to the 1st and 2nd Defendants was fraudulent.
- 2 Whether the Plaintiff is the lawful owner of the suit land.
- 3 Whether the land register should be rectified to reinstate the Plaintiff as proprietor.
Ratio Decidendi
The court found that the Plaintiff had lawfully acquired and was registered as proprietor of the suit land. The subsequent transfer to the 1st Defendant, and then to the 2nd Defendant, was effected fraudulently and without the Plaintiff's knowledge or participation. The Gazette Notice and decree relied upon by the Defendants referenced different parties and claims, and the Plaintiff was not a party to the Nairobi suit. The evidence was uncontested, and the court held that the Plaintiff remained the lawful owner. The Land Registrar was directed to rectify the register by cancelling all entries relating to the 1st and 2nd Defendants and reinstating the Plaintiff as proprietor. A permanent...
Court Disposition
Judgment for the Plaintiff. Suit land to be restored to Plaintiff. Permanent injunction granted. Costs to Plaintiff.
Orders
- The Land Registrar, Kirinyaga, is directed to rectify the register for land parcel KABARE/GACHIGI/1033 by cancelling all entries relating to the 1st and 2nd Defendants and reinstating the Plaintiff as the registered proprietor.
- A permanent injunction is issued restraining the Defendants from dealing with the suit land in any manner.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL CASE NO. 89 OF 2010
ERASTUS MUNENE WANJOHI ………………………. PLAINITFF
VERSUS
PETER KARANI KABIRU …………………………1STDEFENDANT
DANSON MURIUKI KIHARA …………………… 2ND DEFENDANT
(THE ATTORNEY GENERAL for & on behalf of
LAND REGISTRAR KIRINYAGA ………….………3RD DEFENDANT
J U D G M E N T
The 1st and 2nd Defendants were served with summons but did not enter appearance or file any defence to the claim. The evidence of the Plaintiff was therefore not controverted.
The Plaintiff testified that by the sale agreement dated 19th July 2002 (exhibit 1) he bought land parcel No. KABARE/GACHIGI/1033 measuring about 0. 4875 Ha. from one MICHAEL MURINGI KIBUI for kshs.320,000/= which he paid. The suit land was subsequently transferred to him and he obtained the title deed (exhibit 2). It was issued on 27th August 2003. He began to utilize the suit land. In 2005 some people came to the land saying they wanted to buy it from the 1st Defendant. This alarmed the Plaintiff who went to the lands office and found that the suit land was now in the name of the 1st Defendant. He found a Gazette Notice No.852 of 11th February 2005 (exhibit 3) indicating that the High Court in Nairobi inCivil Case No. 295 of 2002had issued a decree to transfer the suit land from him to the 1st Defendant. The Notice indicated that he had refused to produce the original title deed and the land registrar Kirinyaga District was going to dispense with the production of the title deed. The Plaintiff was unaware of either the Notice or the suit. He went to High Court in Nairobi and obtained a copy of the Plaint (exhibit 4) and a copy of the decree (exhibit 5) in the suit. They referred to different parties and claim.
The Plaintiff subsequently filed the present suit seeking a declaration that he was the lawful owner of the suit land. He sought rectification of the register to cancel the entries in favour of the Defendants and also the cancellation of the title deed issued to the 1st Defendant and subsequently to the 2nd Defendant. Lastly, he asked for a permanent injunction. What had happened was that 1st Defendant had subsequently transferred the suit land to the 2nd Defendant. The Plaintiff had not dealt with either of them over the suit land, or at all.
I accept the evidence of the Plaintiff and find that the suit land was fraudulently transferred to the 1st Defendant and to the 2nd Defendant. The suit land legally and rightly belongs to the Plaintiff. The Land Registrar, Kirinyaga is directed to rectify the register in regard to the suit land by canceling all entries relating to the 1st and 2nd Defendants and to reinstate the Plaintiff as the registered proprietor. There shall be permanent injunction restraining the Defendants from dealing with the suit land in any manner. The two Defendants will pay the costs of this case.
DATED, SIGNED AND DELIVERED AT EMBU THIS 28TH DAY OF JULY 2011
A.O. MUCHELULE
JUDGE