[2019] KEELC 1979 (KLR)
The court found that the Plaintiffs had established their ownership of the suit property through documentary evidence, including the sale agreement, gazette notice, provisional certificate, and rates payment records. The Defendants did not file any defence or provide evidence to counter the Plaintiffs' claim. The...
Source-derived case information.
- Citation
- [2019] KEELC 1979 (KLR)
- Parties
- Plaintiff: Erwin August Stillhard; Plaintiff: Suminder Sonia Stillhard – Sehmi; Defendant: Zeverchand Ramji Shah; Defendant: Wycliff Ken Lugwili; Defendant: Moses Ndirangu Itumia; Defendant: Chief Land Registrar
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 80 of 2018
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiffs' claim allowed; prayers (i), (ii), (iii), and (iv) of the plaint granted; costs awarded to Plaintiffs against 2nd and 3rd Defendants.
- Legal Topics
- Fraudulent Transfer of Land, Ownership Disputes, Title Registration, Provisional Certificate, Change of Ownership Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erwin August Stillhard
Plaintiff
Suminder Sonia Stillhard – Sehmi
Plaintiff
Zeverchand Ramji Shah
Defendant
Wycliff Ken Lugwili
Defendant
Moses Ndirangu Itumia
Defendant
Chief Land Registrar
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiffs lawfully purchased and own the suit property.
- 2 Whether the transfer of the suit property to the 2nd and 3rd Defendants was fraudulent or improper.
- 3 Whether the 1st and 2nd Defendants acquired any legal rights or interest in the suit property.
Ratio Decidendi
The court found that the Plaintiffs had established their ownership of the suit property through documentary evidence, including the sale agreement, gazette notice, provisional certificate, and rates payment records. The Defendants did not file any defence or provide evidence to counter the Plaintiffs' claim. The purported transfer of the property to the 2nd and 3rd Defendants was not supported by any lawful process, and the Plaintiffs denied ever transferring the property. The change of ownership details at the Nairobi City County rates department was improper and did not confer any legal rights to the Defendants. The Plaintiffs proved their case on a balance of probabilities and were...
Court Disposition
Plaintiffs' claim allowed; prayers (i), (ii), (iii), and (iv) of the plaint granted; costs awarded to Plaintiffs against 2nd and 3rd Defendants.
Orders
- Prayers (i), (ii), (iii), and (iv) of the plaint are granted in favour of the Plaintiffs.
- The costs of the suit are awarded to the Plaintiffs to be borne by the 2nd and 3rd Defendants.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC CASE NO. 80 OF 2018
ERWIN AUGUST STILLHARD......................................1ST PLAINTIFF
SUMINDER SONIA STILLHARD – SEHMI................2ND PLAINTIFF
VERSUS
ZEVERCHAND RAMJI SHAH....................................1ST DEFENDANT
WYCLIFF KEN LUGWILI..........................................2ND DEFENDANT
MOSES NDIRANGU ITUMIA.....................................3RD DEFENDANT
CHIEF LAND REGISTRAR........................................4TH DEFENDANT
JUDGEMENT
1. The Plaintiffs claimed that they purchased the land known as land reference number 3734/541 situated in Lavington, Nairobi (“the Suit Property”) on 20/8/1993 for value at a consideration of Kshs. 3,000,000/= free of any encumbrances or overriding interest. The Plaintiffs enjoyed quiet possession of the Suit Property until 2016 when they lost the original certificate of title and were issued a provisional certificate after they made an application. The provisional certificate of title was registered as I.R No. 1474/20. The Plaintiffs claim that they have been paying rates to the County Government of Nairobi. They learned when they visited the rates department of the Nairobi City County on 21/2/2018 that the rent payment account for their property bore the names of the 2nd and 3rd Defendants. On inquiry at the rates department they learned that the 2nd and 3rd Defendants caused a change of the ownership details of the Suit Property from the Plaintiffs names to their own names on 13/2/2018. They brought this suit. The Defendants did not file defences.
2. The 1st Plaintiff gave evidence and produced a copy of the agreement for sale dated 6/6/1993 confirming their purchase of the Suit Property. He also produced a copy of the gazette notice dated 9/6/2017 on the issue of a provisional certificate to the Plaintiffs together with a copy of the provisional certificate which confirms at entry number 17 that the land was transferred to the Plaintiffs on 20/8/2019. Entry numbers 18 and 19 relate to a caveat under Section 55 of the Registration of Titles Act and its withdrawal. The 1st Plaintiff also produced copies of rates demand notes dated 15/2/2019, 22/2/2018, 24/3/2016, 16/3/2014, 18/2/2013, 17/3/2011 and 17/5/2006 which were issued in the Plaintiffs’ names. The rates demand note demand 21/2/2018 was issued in the names of the 2nd and 3rd Defendants. The Plaintiff also produced a copy of the transfer dated 23/7/2014 showing that the 1st Defendant purchased L.R. No. 3734/541 (original number 3734/5/336) from the 2nd and 3rd Defendants at the sum of Kshs. 18,000,000/=. He also produced copies he retrieved from the rates department of the pin certificates for the 2nd and 3rd Defendants and the copy of the title which reflects the transfer to the 1st Defendant stated to have been registered on 27/5/1998. He also produced a copy of its advocate’s letter addressed to the 4th Defendant urging both the Defendants to investigate the fraudulent transfer of the Plaintiff’s land. The Plaintiffs denied ever transferring the suit land to the 2nd and 3rd Defendants.
3. The court has considered the submissions filed by the Plaintiff that they have never sold or transferred the Suit Property to any person. The court is satisfied that the Plaintiffs have established their claim to the Suit Property and that the 1st and 2nd Defendants did not acquire any rights or interest over the Suit Property that they could legally transfer to the 3rd Defendant. The change of the ratepayers’ details at the rates department of the Nairobi City County from the Plaintiffs to those of the 1st and 2nd Defendants was not proper and ought not to have been done.
4. The court is satisfied that the Plaintiffs have proved their claim on a balance of probabilities and grants prayers (i), (ii), (iii) and (iv) of the plaint. The Plaintiff is awarded the costs of this suit to be borne by the 2nd and 3rd Defendants.
Dated and delivered at Nairobi this 8th day of August 2019
K.BOR
JUDGE
In the presence of: -
Mr. O. Litoro for the Plaintiffs
Mr. V. Owuor- Court Assistant
No appearance for the Defendants