[2010] KEHC 1054 (KLR)
The court found that the subdivision of Komothai/Gathugu/474 and the issuance of new titles (Komothai/Gathugu/1535, 1536 & 1537) were conducted in disregard of a valid and enforceable judgment of the Thika Subordinate Court delivered on 5th December 1991, which awarded the applicant two acres of the suit land. The...
Source-derived case information.
- Citation
- [2010] KEHC 1054 (KLR)
- Parties
- Applicant: Jane Wambui Ndirangu; Respondent: Peter Gathecha Njoroge; Respondent: Samuel Mathu Njoroge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 1254 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Cancellation of Titles and Enforcement of Prior Judgment
- Outcome
- Application allowed. Orders granted as prayed.
- Judges
- LK Kimaru
- Legal Topics
- Title Cancellation, Succession Distribution, Enforcement of Judgment, Illegal Eviction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jane Wambui Ndirangu
Applicant
Peter Gathecha Njoroge
Respondent
Samuel Mathu Njoroge
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Cancellation of Titles and Enforcement of Prior Judgment
Legal Issues
- 1 Whether the subdivision and issuance of new titles for Komothai/Gathugu/1535, 1536 & 1537 was illegal and contrary to the valid court judgment.
- 2 Whether the applicant is entitled to reinstatement and possession of the two acres awarded by the Thika court judgment of 5th December 1991.
- 3 Whether the Land Registrar should be compelled to cancel the new titles and revert the land to the original parcel.
Ratio Decidendi
The court found that the subdivision of Komothai/Gathugu/474 and the issuance of new titles (Komothai/Gathugu/1535, 1536 & 1537) were conducted in disregard of a valid and enforceable judgment of the Thika Subordinate Court delivered on 5th December 1991, which awarded the applicant two acres of the suit land. The subsequent review of the judgment only affected the portion awarded to Mugo Njoroge and did not alter the applicant's entitlement. The applicant was illegally evicted, and the land subdivision failed to account for her awarded share. The court held that the only way to give effect to the valid judgment was to cancel the new titles, revert the land to its original title, excise...
Court Disposition
Application allowed. Orders granted as prayed.
Orders
- Titles Komothai/Gathugu/1535, 1536 & 1537 issued by the Land Registrar, Kiambu are cancelled.
- Subdivisions resulting in the above titles are cancelled.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLICOFKENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
SUCCESSION CAUSE NO.1254 OF 2003
IN THE MATTER OF THE ESTATE OF NJOROGE GACHUKI (DECEASED)
JANE WAMBUI NDIRANGU....….………………………...........……................. APPLICANT
VERSUS
PETER GATHECHA NJOROGE
SAMUEL MATHU NJOROGE........................................................................RESPONDENTS
R U L I N G
Before me is an application by the applicant seeking several orders from the court. The applicant prays that the court issues an order compelling the Land Registrar, Kiambu to cancel the title deeds in respect of the parcels of land known as LR.Nos.Komothai/Gathugu/1535,1536&1537 which were allegedly illegally issued after parcel No.Komothai/Gathugu/474 (the suit land) was illegally sub-divided. The applicant further prayed that the said Land Registrar be ordered to reinstate the title in respect of the original parcel of land i.e. Komothai/Gathugu/474. The applicant prayed that the court orders the suit land to be sub-divided in accordance with the judgment that was delivered by the Thika Subordinate court on 5th December 1991 in Succession Cause No.175 of 1983. The application is supported by the annexed affidavit of the applicant. The 2nd respondent, Samuel Mathu Njoroge swore two affidavits in reply and in opposition to application.
At the hearing of the application, this court heard rival arguments made by the applicant, who was acting in person and by Mr. Gatumuta, the advocate for the respondent. I have carefully considered the said submissions. I have also read the pleadings filed by the parties herein in support of their respective opposing positions. The application herein is predicated on the judgment of the subordinate court which was delivered by the Thika subordinate court on 5th December 1991. In the said judgment, it was ordered that the applicant retains the place in the suit land that she was residing in at the time of the delivery of the judgment. That portion of land measures two (2) acres. One Mugo Njoroge was ordered to get two (2) acres or in the alternative he be refunded the purchase consideration. The respondents were dissatisfied with the decision of the court, especially the part of the decision that awarded Mugo Njoroge two (2) acres of land. The respondents applied to review the judgment before the same court. The magistrate who had initially heard the case and delivered the judgment (Nyarima S.R.M.) had by that time been transferred from Thika Magistrate’s Court. The application for review was heard by a new magistrate (M. Mugo S.P.M.). The new magistrate overturned part of the judgment that awarded the said Mugo Njoroge two (2) acres of land. The court ordered Mugo Njoroge to be refunded the purchase consideration together with interest. The court did not touch part of the judgment that awarded the applicant herein the parcel of land that she was occupying at the time. That part of the judgment is still valid and enforcible. The applicant therefore has a case when she states that the suit land was sub-divided into portions that did not take account the parcel of land that she was awarded by the court. From the applicant’s affidavit, it was evident that she was illegally evicted from the suit land. The applicant’s husband is buried on the suit land.
So that the parcel of land which was adjudged in favour of the applicant may be excised from the suit land, I will allow the applicant’s application. The titles issued by the Land Registrar, Kiambu namely, Komothai/Gathugu/1535,1536&1537 are hereby cancelled. The subdivisions that resulted in the titles are hereby cancelled. The title shall revert to the original title i.e. Komothai/Gathugu/474 (in the name of the deceased). Thereafter, two (2) acres shall be excised from the suit land to cover the area that the applicant occupied prior to her unlawful eviction by the respondents. The applicant shall be put in possession of the portion of land that she previously occupied. This parcel of land shall include the grave of the husband of the applicant. Thereafter, the remaining portion of land shall be divided into two equal portions to be inherited by the two houses of the deceased. The applicant shall have the cost of the application. Either party shall be at liberty to apply.
DATED ATNAIROBITHIS 26TH DAY OF NOVEMBER, 2010
L. KIMARU
JUDGE