[2023] KEELC 16512 (KLR)
The court found that the plaintiff and her son are the legal owners of two thirds of plot No. 129 Mambrui, while the defendants own one third, as evidenced by the certificate of title and uncontroverted testimony. There was no dispute of ownership, and both parties were desirous of subdivision to obtain distinct...
Source-derived case information.
- Citation
- [2023] KEELC 16512 (KLR)
- Parties
- Plaintiff: Betty Jumwa Jefwa; Defendant: Katana Iha & 26 others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 55 of 2018
- Procedural Posture
- Environment and Land Case / Judgment
- Outcome
- Plaintiff's claim allowed; declaration of ownership and order for subdivision granted.
- Judges
- MAO Odeny
- Legal Topics
- Co Ownership, Subdivision of Land, Declaration of Title, Registration of Land, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Betty Jumwa Jefwa
Plaintiff
Katana Iha & 26 others
Defendant
Procedural Posture
Environment and Land Case / Judgment
Legal Issues
- 1 Whether the plaintiff and her son are entitled to a declaration as legal owners of two thirds of plot No. 129 Mambrui.
- 2 Whether the suit property should be subdivided to reflect the parties' respective shares.
- 3 Whether the defendants should bear the costs of the suit.
Ratio Decidendi
The court found that the plaintiff and her son are the legal owners of two thirds of plot No. 129 Mambrui, while the defendants own one third, as evidenced by the certificate of title and uncontroverted testimony. There was no dispute of ownership, and both parties were desirous of subdivision to obtain distinct titles. The court held that subdivision should be effected to reflect the parties' respective shares, with both parties bearing the costs of subdivision. The defendants, having failed to defend the suit, were also ordered to pay the costs of the suit. The plaintiff proved her case on a balance of probabilities, warranting the grant of the orders sought.
Court Disposition
Plaintiff's claim allowed; declaration of ownership and order for subdivision granted.
Orders
- A declaration is made that the plaintiff and her son Ugo Pellegrini are the legal owners of two thirds of plot No. 129 Mambrui.
- Plot No. 129 Mambrui shall be subdivided, with two thirds registered in the plaintiff’s name and one third in the defendants’ names, both parties to bear the costs of subdivision.
Full Case Text
Judgment text and source record
29 paragraphs
Jefwa v Iha & 26 others (Environment & Land Case 55 of 2018) [2023] KEELC 16512 (KLR) (24 March 2023) (Judgment)
Neutral citation: [2023] KEELC 16512 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case 55 of 2018
MAO Odeny, J
March 24, 2023
Between
Betty Jumwa Jefwa
Plaintiff
and
Katana Iha & 26 others
Defendant
Judgment
1. By an amended plaint dated 29th March 2019 the Plaintiff herein sued the defendants seeking the following orders; -a)A declaration the plaintiff and her son Ugo Pellegrini are the legal owners two thirds of plot No. 129 Mambrui.b)The subdivision of Plot No. 129 Mambrui with two thirds of it be registered in the plaintiff’s name and one third in the defendants’ names with costs to both parties.c)Costs of this suit.
2. The Plaintiff’s case is that together with her son Ugo Pellegrini they are the beneficial owners of the estate of the late Luigi Pellegrini and the owners of two thirds of plot No. 129 Mambrui while the Defendants own a third of the said plot.
3. It is the Plaintiff’s case that the suit plot has never been subdivided to give exclusive and distinct proprietary rights to the rightful owners and both the Plaintiff and Defendants have been living as owners in common on the suit plot and it is in best interest of all parties to subdivide the property.
4. The Defendants were served with Summons to enter appearance but failed to either enter appearance or file a defence. The matter proceeded by way of formal proof.
5. PW1 Betty Jumwa Jefwa adopted her witness statement dated 22nd September 2021 and produced as PEX 1-3 documents as per the list of documents dated 12th September 2019.
6. PW1 stated she sold 15 acres to the Defendants who already owned 30 acres thus making a total of 45 acres while hers are 65 acres hence the plot should be subdivided for each party to have their distinct portions and each party to bear the cost of subdivision.
7. Counsel for the Plaintiff submitted that the certificate of title indicates the parties’ respective shares in the suit property and hence the subdivision should be done to reflect the portions.
8. Mr. Mwadilo relied on the case of Kiprono Arap Koske v John Cheruiyot Koske[2016] eKLR where the court issued an order for the subdivision of the suit property into two equal portions for registration in the name of the Plaintiff and Defendant respectively where both parties were registered as owners in common.
Analysis and Determination. 9. The Defendants were served with summons to enter appearance but neither entered appearance nor filed a defence within the stipulated period. This matter therefore proceeded undefended.
10. The issue for determination is whether the Plaintiff’s prayer for an order for subdivision of the suit land has merit. It should be noted that the Plaintiff’s prayer for subdivision is to benefit both parties.
11. The Plaintiff’s case is that each party have their portions which is not disputed and that all the parties were desirous of the subdivision of their portion to enable each party get their titles.
12. From the evidence and the documents produced on record show that there is no ownership dispute and at one point an MCA for the area attempted to fundraise to help the Defendants with the subdivision but the same did not materialize.
13. The Plaintiff has tendered evidence to the effect that the Defendants own 45 acres of the suit property while her and her son own the rest of 65 acres. This is corroborated by the Certificate of Title produced by the Plaintiff and as such I find that the Plaintiff has proved her case on a balance of probabilities.
14. I therefore make the following specific orders;a)A declaration is hereby made that the plaintiff and her son Ugo Pellegrini are the legal owners two thirds of plot No. 129 Mambrui.b)The subdivision of Plot No. 129 Mambrui with two thirds of it be registered in the plaintiff’s name and one third in the defendants’ names with both bearing the costs of subdivision.c)Defendants to pay costs of this suit.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 24TH DAY OF MARCH, 2023. M.A. ODENYJUDGENB: In view of the Public Order No. 2 of 2021 and subsequent circular dated 28th March, 2021 from the Office of the Chief Justice on the declarations of measures restricting court operations due to the third wave of Covid-19 pandemic this Judgment has been delivered online to the last known email address thereby waiving Order 21 [1] of the Civil Procedure Rules.