[2018] KEHC 7040 (KLR)
The court found that the Plaintiffs are the registered owners of the suit land and that the 1st Defendant failed to provide any evidence or justification for the caution registered against the property. In the absence of evidence from the 1st Defendant and given the Plaintiffs' uncontroverted testimony, the court...
Source-derived case information.
- Citation
- [2018] KEHC 7040 (KLR)
- Parties
- Plaintiff: Japheth Musyoka Mutisya; Plaintiff: Redemptor Mueni Musyoka; Defendant: Abel Musyoka Muithi; Defendant: County Land Registrar, Machakos; Defendant: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 150 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaint allowed save for general damages.
- Judges
- OA Angote
- Legal Topics
- Removal of Caution, Land Ownership, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Japheth Musyoka Mutisya
Plaintiff
Redemptor Mueni Musyoka
Plaintiff
Abel Musyoka Muithi
Defendant
County Land Registrar, Machakos
Defendant
The Hon. Attorney General
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the caution registered by the 1st Defendant over parcel Ndalani/Ndalani Block 1/446 should be removed.
- 2 Whether the Plaintiffs have proved ownership of the suit land on a balance of probabilities.
Ratio Decidendi
The court found that the Plaintiffs are the registered owners of the suit land and that the 1st Defendant failed to provide any evidence or justification for the caution registered against the property. In the absence of evidence from the 1st Defendant and given the Plaintiffs' uncontroverted testimony, the court held that the Plaintiffs had proved their case on a balance of probabilities. The court therefore ordered the removal of the caution placed by the 1st Defendant on Ndalani/Ndalani Block 1/446.
Court Disposition
Plaint allowed save for general damages.
Orders
- The caution registered by the 1st Defendant over parcel Ndalani/Ndalani Block 1/446 is hereby removed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO.150 OF 2014
JAPHETH MUSYOKA MUTISYA..................................1ST PLAINTIFF
REDEMPTOR MUENI MUSYOKA ..............................2ND PLAINTIFF
VERSUS
ABEL MUSYOKA MUITHI........................................1ST DEFENDANT
COUNTY LAND REGISTRAR, MACHAKOS ........2ND DEFENDANT
THE HON. ATTORNEY GENERAL ........................3RD DEFENDANT
JUDGMENT
1. In the Plaint dated 15th October, 2014, the Plaintiffs have averred that they are the registered owners of parcel of land known as Ndalani/Ndalani Block 1/446; that when they conducted a search on the land, they found a caution had been placed on the land by the 1st Defendant and that the said caution should be removed.
2. The 1st Defendant filed a Defence in which he averred that he purchased the suit land from the Plaintiffs for Kshs. 100,000 and that he registered the caution on the suit land when he learnt that the Plaintiffs intended to sub-divide it.
3. The 2nd and 3rd Defendants averred that there is no evidence that the Plaintiffs sought for the removal of the caution and that the suit was prematurely filed.
4. Although the Defendants were served with a hearing notice, they did not attend court when the matter came up for hearing on 21st November, 2011. The matter proceeded for hearing in their absence.
5. The 1st Plaintiff, PW1, informed the court that he does not know why the 1st Defendant registered a caution over parcel of land known as Ndalani/Ndalani Block 1/446 and that the same should be lifted by the court.
6. In the absence of any evidence by the 1st Defendant on why he caused a caution to be registered on the suit land, I find that the Plaintiffs have proved their case on a balance of probabilities. I therefore allow the Plaint as prayed, save for general damages.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 13TH DAY OF APRIL, 2018.
O.A. ANGOTE
JUDGE