[2017] KEELC 1257 (KLR)
The court found that the deceased was a registered member of the 2nd Defendant and had been allocated the suit land. The 2nd Defendant admitted this allocation in its Defence. The 1st Defendant failed to provide any evidence explaining how he became registered as proprietor of the land. The court concluded that the...
Source-derived case information.
- Citation
- [2017] KEELC 1257 (KLR)
- Parties
- Plaintiff: Fredrick Nzioka Musau; Defendant: Willy Mutie; Defendant: Drumvale Farmers Co-operative Society Ltd (in liquidation); Defendant: The District Land Registrar Machakos
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2012
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaint allowed as prayed for the Plaintiff.
- Judges
- OA Angote
- Legal Topics
- Fraudulent Land Registration, Ownership Dispute, Allocation of Land by Cooperative
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Nzioka Musau
Plaintiff
Willy Mutie
Defendant
Drumvale Farmers Co-operative Society Ltd (in liquidation)
Defendant
The District Land Registrar Machakos
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the registration of the suit land in favour of the 1st Defendant was fraudulent.
- 2 Whether the deceased was the bona fide owner of Mavoko Town Block 12/83.
- 3 Whether the Plaintiff is entitled to the orders sought.
Ratio Decidendi
The court found that the deceased was a registered member of the 2nd Defendant and had been allocated the suit land. The 2nd Defendant admitted this allocation in its Defence. The 1st Defendant failed to provide any evidence explaining how he became registered as proprietor of the land. The court concluded that the registration of the 1st Defendant as proprietor was fraudulent, as the original allocation was to the deceased and there was no evidence of a lawful transfer. The Plaintiff, as personal representative of the deceased, proved his case on a balance of probabilities and was entitled to the reliefs sought.
Court Disposition
Plaint allowed as prayed for the Plaintiff.
Orders
- Declaration that the deceased is the bona fide owner of Mavoko Town Block 12/83.
- Order that the registration of the 1st Defendant as proprietor of the suit land was obtained by fraud and is set aside.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 44 OF 2012
FREDRICK NZIOKA MUSAU.....................................................PLAINTIFF
VERSUS
WILLY MUTIE..................................................................1ST DEFENDANT
DRUMVALE FARMERS CO-OPERATIVE SOCIETY
LTD (IN LIQUIDATION)..................................................2ND DEFENDANT
THE DISTRICT LAND REGISTRAR MACHAKOS......3RD DEFENDANT
JUDGMENT
1. In the Plaint dated 20th February, 2012, the Plaintiff averred that Samson Musau, the deceased, was a registered member of the 2nd Defendant; that the deceased was allocated a parcel of land known as Mavoko Town Block 12/83 by the 2nd Defendant in 1989 and that in the year 2000, the Defendants fraudulently registered the suit land in favour of the 1st Defendant.
2. It is the Plaintiff’s case that it was not until 7th September, 2011 that he discovered that the suit land had been fraudulently registered in favour of the 1st Defendant.
3. The Plaintiff is seeking for a declaration that the deceased is the bona fide owner of the suit land and an order directing that the registration of the 1st Defendant as the proprietor of the suit land was obtained by fraud.
4. In its Defence, the 2nd Defendant admitted that it indeed allocated the deceased the suit land.
5. On his part, the 1st Defendant averred that it acquired the suit land legally and without any fraud, mistake or wrongdoing.
6. The matter proceeded for hearing on 16th May, 2017 when only the Plaintiff testified. The Defendants did not adduce any evidence.
7. The Plaintiff, PW1, informed the court that he is the personal representative of the Estate of the deceased who died on 22nd June, 1989; that the deceased was a member of the 2nd Defendant and that he was allocated the suit land by the 2nd Defendant in 1989.
8. However, it was the evidence of PW1 that during the collection of the assets of the deceased, they discovered that the suit land had been fraudulently registered in the name of the 1st Defendant.
9. It was the evidence of PW1 that his family has always used the land and that indeed his son has his house on the suit land.
10. The Plaintiff produced in evidence the certificate from the 2nd Defendant showing that the deceased was registered as member 1047 with the 2nd Defendant on 17th June, 1978.
11. The Defendants did not adduce any evidence.
12. The Plaintiff’s advocate filed brief submissions which I have considered.
13. The evidence before me shows that the deceased we registered as member number 1047 in the 2nd Defendant’s organization on 17th June, 1978.
14. The 2nd Defendant has admitted in its Defence that by virtue of his membership, the deceased was allocated the suit land.
15. The 1st Defendant did not adduce any evidence to show how he was registered as the proprietor of parcel of land known as Mavoko Town Block 12/83.
16. Considering that the suit property was initially owned by the 2nd Defendant, who has admitted that it allocated it to the deceased and not the 1st Defendant, I find that the suit land was registered in favour of the 1st Defendant fraudulently.
17. For those reasons, I find that the Plaintiff has proved his case on a balance of probabilities.
18. I therefore allow the Plaint dated 20th February, 2012 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.
O. A. ANGOTE
JUDGE