[2018] KEELC 1186 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that the registration of L.R. No. Tharaka/Nkondi ‘A’/248 in the defendant’s name was fraudulent. The plaintiff’s evidence, including a sale agreement and a search certificate, established his claim to the land and demonstrated that he had...
Source-derived case information.
- Citation
- [2018] KEELC 1186 (KLR)
- Parties
- Plaintiff: Jacob Makunyi Berece; Defendant: Diego Nkambi Mugambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 202 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff; suit allowed as prayed.
- Judges
- FM Njoroge
- Legal Topics
- Land Registration, Rectification of Register, Fraudulent Transfer, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jacob Makunyi Berece
Plaintiff
Diego Nkambi Mugambi
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the registration of L.R. No. Tharaka/Nkondi ‘A’/248 in the defendant's name was fraudulent.
- 2 Whether the plaintiff is entitled to rectification of the land register to reflect his ownership.
- 3 Whether the plaintiff is entitled to cancellation of the defendant's registration and costs.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that the registration of L.R. No. Tharaka/Nkondi ‘A’/248 in the defendant’s name was fraudulent. The plaintiff’s evidence, including a sale agreement and a search certificate, established his claim to the land and demonstrated that he had developed and possessed the property. The defendant, though aware of the hearing date through his advocate, failed to participate or contest the plaintiff’s case. The court, therefore, exercised its discretion under Order 12 of the Civil Procedure Rules to proceed ex parte and found in favor of the plaintiff, ordering cancellation of the defendant’s registration, rectification...
Court Disposition
Judgment for the plaintiff; suit allowed as prayed.
Orders
- An order of cancellation of the registration of L.R. No. Tharaka/Nkondi ‘A’/248 in the name of the defendant is issued to the Land Registrar.
- An order is issued to the Land Registrar to rectify the register so that L.R. No. Tharaka/Nkondi ‘A’/248 is registered in the name of the plaintiff, Jacob Makunyi Berece.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO. 202 OF 2017
FORMERLY MERU ELC. 198 OF 2013
JACOB MAKUNYI BERECE...........PLAINTIFF
VERSUS
DIEGO NKAMBI............................DEFENDANT
JUDGMENT
1. The plaintiff in his plaint dated 22nd July, 2013 seeks judgment against the defendant for:
a. An order cancelling the registration of L.R. No. Tharaka/Nkondi ‘A’/248 in the name of the defendant.
b. Rectification of the register so as to have L.R. No. Tharaka/Nkondi ‘A’/248 registered in the name of the plaintiff.
c. Costs of the suit.
2. The suit was allocated the 25th of September, 2018 as its hearing date. On that day, Mr. Murango Mwenda, the plaintiff’s advocate told the court that he was ready to participate in the scheduled hearing. Mr. Nyamu Nyaga, the defendant’s advocate told the court that he was not ready to participate in the proceedings because he had lost touch with his client, the defendant.
3. Taking cognizance of the fact that this suit was filed over five years ago, I found it necessary to invoke the provisions of order 12 of the Civil Procedure Rules. I determined that the defendant, through his advocate, was aware of the date fixed by this court for the hearing of the suit. I directed that the suit should proceed exparte and the plaintiff was called upon to prove his case.
4. PW1, Jacob Makunyi Berece, the plaintiff, asked the court to admit his witness statement dated 2nd July, 2013 and 27th July, 2018 as his evidence in this suit. In his statement, the plaintiff claims that the registration of his parcel of land No. NKONDI ‘A’/248 in the defendant’s name was done fraudulently. He avers that he has developed the suit land extensively and has a permanent house thereon. He also avers that he has planted many exotic trees, bananas, and mango trees thereon. He asked the court to grant to him the orders sought in his plaint and costs of the suit. The plaintiff produced as his Exhibit No. 1 a search certificate concerning the suit land. He also produced as Exhibit 2, a sale agreement dated 13th June, 1988 through which he bought the suit land.
5. I have considered the evidence adduced by the plaintiff. I find that he has proved his case to the satisfaction of the court on a balance of probabilities.
6. Judgment is entered for the plaintiff against the defendant in the following terms.
a. An order of cancellation of the registration of L.R. No. Tharaka/Nkondi ‘A’/248 is issued to the Land Registrar in charge of registration of this parcel of land so that the name of the defendant DIEGO NKAMBI MUGAMBI is forthwith removed from the apposite register.
b. An order is issued to the Land Registrar in charge of the register apposite to L.R. NO. Tharaka/Nkondi/ ‘A’/248 to appropriately rectify the register and that L.R. No. Tharaka/Nkondi ‘A’/248 be registered in the name of the plaintiff, JACOB MAKUNYI BERECE, forthwith.
c. Costs of this suit are awarded to the plaintiff.
Delivered in open court at Chuka this 22nd day of October, 2018 in the presence of:
CA: Ndegwa
Murango Mwenda for the plaintiff
Defendant and his advocate - absent
P.M. NJOROGE
JUDGE