[2013] KEHC 3519 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he purchased and occupied the suit land for over 44 years, developed it, and that the defendant retained the title in trust for him. The evidence was unchallenged and corroborated by documentary exhibits, including the sale agreement,...
Source-derived case information.
- Citation
- [2013] KEHC 3519 (KLR)
- Parties
- Plaintiff: Javan Engoke Musiega (suing through Nicholas Angutsa Engoke); Defendant: Nyongesa Sifagio
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 50 of 2012
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's claim allowed. Prayers in the originating summons granted. No order as to costs.
- Legal Topics
- Adverse Possession, Land Title Transfer, Trust in Land, Registration of Land, Land Sale Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Javan Engoke Musiega (suing through Nicholas Angutsa Engoke)
Plaintiff
Nyongesa Sifagio
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to title by adverse possession over land parcel No. E. Bukusu/S. Kanduyi/1975.
- 2 Whether the registration of the defendant as proprietor should be cancelled and the register altered in favor of the plaintiff.
- 3 Whether the plaintiff is entitled to be issued with a title deed for the suit land.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he purchased and occupied the suit land for over 44 years, developed it, and that the defendant retained the title in trust for him. The evidence was unchallenged and corroborated by documentary exhibits, including the sale agreement, title deed, and green card. The court held that the plaintiff was entitled to be registered as proprietor by adverse possession and that the defendant's registration should be cancelled and the register altered in favor of the plaintiff. The court granted the prayers sought in the originating summons, except for costs, which were not awarded as the defendant did not enter...
Court Disposition
Plaintiff's claim allowed. Prayers in the originating summons granted. No order as to costs.
Orders
- Plaintiff's claim to title by adverse possession over land parcel No. E. Bukusu/S. Kanduyi/1975 is granted.
- Registration of Nyongesa Sifagio as proprietor of land parcel No. E. Bukusu/S. Kanduyi/1975 is cancelled and the register is to be altered in favor of the plaintiff Javan Engoke Musiega.
Full Case Text
Judgment text and source record
53 paragraphs
REPUBLIC OF KENYA
High Court at Bungoma
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JAVAN ENGOKE MUSIEGA
[suing thro’ Nicholas Angutsa Engoke……………………….…….. PLAINTIFF
VERSUS
NYONGESA SIFAGIO…………. .……………………………….. DEFENDANT
JUDGEMENT
The plaintiff filed a claim by way of an originating summons for orders;
a).The plaintiff’s claim to title by adverse possession over land parcel No. E. Bukusu/S. Kanduyi/1975 is merited and be granted.
b).The registration of Nyongesa Sifagio as the proprietor of land parcel No. E. Bukusu/S. Kanduyi/1975 be cancelled and the register be altered in favor of the plaintiff Javan Engoke Musiega.
c).The title deed for land parcel No. E. Bukusu/S. Kanduyi/1975 be issued to the plaintiff.
d).Costs do abide the outcome.
The O.S was supported by affidavit. The defendant did not enter appearance. He
was served through an advertisement placed in the Star Newspaper of Thursday
November 29th, 2012. The matter proceeded to hearing on 26th February 2013.
PW1 Nicholas Angutsa Engoke testified on behalf of the plaintiff. He informed
the court that he is son to the plaintiff. The plaintiff is old and ailing and has
turned blind due to ill health.
His evidence to court is that the plaintiff purchased I acre portion of land from the
defendant in 1970’s. The original parcel from which the 1 acre was curved out
from was E. Bukusu/S. Kanduyi/1443. His father was issued with a title deed on
16th March 1976 and he produced the original title deed as plaintiff exhibit 1. The
plaintiff avers that the whole land measuring 2. 03 ha was erroneously transferred
to him. He produced sale agreement as exh. P.2 to show the plaintiff actually and
lawfully claim 1 acre only. The plaintiff states that he had developed this portion
with a house on it and has had it occupied for the past 44 years.
The original title no. E. Bukusu/S. Kanduyi/1443 was closed on sub-division on
28th February 2011. It produced parcel nos. 1974, 1975 – 2088. The green card
was produced as Plaintiff exh. 3 Except for parcel No. E. Bukusu/S. Kanduyi/1975
which is in the defendant’s name. The other parcels are in other people’s names.
When the plaintiff discovered the sub-division was undertaken, he lodged a
complaint with the chief to also be able to get his title for the portion he occupies
and which he purchased which according to the plaintiff is now E. Bukusu/S.
Kanduyi/1975.
This evidence has not been challenged. The plaintiff’s witness gave a good
Chronology of events in support of their claim which this court finds believable.
The evidence is further corroborated with documents produced during the hearing.
I have perused them and I am satisfied that the plaintiff has proved his case on
a balance of probabilities. It can be conclusively held that the
defendant retained title No. E. Bukusu/S. Kanduyi/1975 in his names in trust for
the plaintiff. The sub-divided titles all have been registered into other names
other than the defendant’s name. I therefore grant the prayers as set out in the
O.S. Costs are not awarded against the defendant as he did not enter appearance.
JUDGMENT DATED, SIGNED, READ and DELIVERED in open court this 26th day of March 2013.
A.OMOLLO
JUDGE.
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