[2018] KEELC 3669 (KLR)
The court found that the plaintiff had established his case on a balance of probabilities through documentary evidence, including sale agreements and an allotment letter. The court accepted that the amalgamation of Plot No. 80 with Plot No. 30 to form Plot No. 36, and the subsequent allocation to the 1st defendant,...
Source-derived case information.
- Citation
- [2018] KEELC 3669 (KLR)
- Parties
- Plaintiff: James Kiterie Alfayo; Defendant: William Kipnusu; Defendant: The County Land Adjudication & Settlement Officer
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2016
- Procedural Posture
- Land Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- FM Njoroge
- Legal Topics
- Land Ownership Disputes, Fraudulent Land Transactions, Rectification of Land Records
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kiterie Alfayo
Plaintiff
William Kipnusu
Defendant
The County Land Adjudication & Settlement Officer
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the legitimate owner of the suit property formerly known as Plot No. 80.
- 2 Whether the amalgamation of Plot No. 80 with Plot No. 30 to form Plot No. 36 was irregular, fraudulent, and unlawful.
- 3 Whether the records should be rectified to reflect the plaintiff as the rightful owner.
Ratio Decidendi
The court found that the plaintiff had established his case on a balance of probabilities through documentary evidence, including sale agreements and an allotment letter. The court accepted that the amalgamation of Plot No. 80 with Plot No. 30 to form Plot No. 36, and the subsequent allocation to the 1st defendant, was done fraudulently and without the plaintiff's knowledge or consent. The defendants did not contest the suit, and the plaintiff's evidence was unchallenged. The court concluded that the plaintiff is entitled to the reliefs sought, including a declaration of ownership, rectification of records, and a permanent injunction against the defendants.
Court Disposition
judgment for the plaintiff
Orders
- A declaration that the plaintiff is the legitimate owner of the suit property formerly known as Plot No. 80.
- The amalgamation of Plot No. 80 with Plot No. 30 to form Plot No. 36 was irregular, fraudulent, and unlawful.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KITALE
LAND CASE NO. 9 OF 2016
JAMES KITERIE ALFAYO....................................PLAINTIFF
VERSUS
WILLIAM KIPNUSU.....................................1ST DEFENDANT
THE COUNTY LAND ADJUDICIATION &
SETTLEMENT OFFICER............................2ND DEFENDANT
JUDGMENT
1. The two defendants in this suit, despite being served with summons and plaint, never entered appearance or filed any defence hence the suit proceeded exparte against them.
2. The plaintiff claim is contained in the plaint dated 15/1/2016 which was filed on the same day. By that plaint, the plaintiff sought a declaration that he is the legitimate owner of the suit property formerly known as Plot No. 80 and its amalgamation with Plot No. 30 to form Plot No. 36 was done irregularly, fraudulently and unlawfully. The plaint also sought an order directing the second defendant to rectify the records to reflect the plaintiff as the rightful owner of the property, and a permanent injunction restraining the defendants.
3. According to the plaint, the plaintiff’s case is that he purchased 2 ½ acres of land at the Kitalale Settlement Scheme Phase 1 on 13/7/1999 which comprised what was previously known as Plot No.80. However, the plaintiff, claims the 1st defendant by means of fraudulent misrepresentation induced the 2nd defendant to cause the amalgamation of Plot No. 80 with Plot No. 30 to form Plot No. 36 which was given to the 1st defendant. The particulars of fraud are well laid out at paragraph 7(a) - (c) of the plaint. By reason of that fraud, the plaintiff claims to have suffered loss and damage whose particulars are set out in paragraph 8(a) - (c).
4. At the hearing which took place on 12/3/2018, the plaintiff alone testified in his case. He stated that he bought the 2 ½ acre parcel from one Patrick Towett on 13/7/1999 for the price of Kshs.160,000/= which he fully paid that year. He produced the certified copy of the agreement as P. Exhibit 1. Towett had bought the plot from one Philip Eyanae and a certified copy of their agreement to that effect was produced as P. Exhibit 2. A certified copy of the allotment letter to Philip Eyanae was produced as P. Exhibit 3.
5. After this the plaintiff had the misfortune to build on another person’s plot thinking it was Plot No. 80. It was Plot No. 38. After some litigation he was finally shown Plot No. 80. The plaintiff got to know that Plot No. 80 and Plot No. 30 had been joined together to form Plot No. 36. Plot No. 30 which had also belonged to Towett was then in the hands of the 1st defendant. The plaintiff was evicted from Plot No. 38. The plaintiff avers that he was not informed as Plot No. 80 and Plot No. 38 were being joined together and he prays the court for the orders in the plaint.
6. This suit is not opposed. I have examined the documentary evidence produced by the plaintiff including the judgment in Kitale ELC No. 78 of 2003 - James Kiterie -vs- Margaret Wambete. In my opinion he has established his case on a balance of probabilities. I therefore think that his claim has merit.
7. Consequently I hereby enter judgment in favour of the plaintiff against the defendants jointly and severally and grant the prayers as sought in the plaint dated 15/1/2016.
Dated, signed and delivered at Kitale on this 25th day of April, 2018.
MWANGI NJOROGE
JUDGE
25/4/2018
Coram:
Before: Mwangi Njoroge, Judge
Court Assistant - Picoty
Mr. Waweru for plaintiff
N/A for the defendant
COURT
Ruling read in open court.
MWANGI NJOROGE
JUDGE
25/4/2018