[2009] KEHC 1291 (KLR)
The court found that the plaintiff is the registered owner of the suit property, as evidenced by the certificate of title and the green card. Section 27(a) of the Registered Land Act confers absolute ownership to the registered proprietor, entitling the plaintiff to possession and use of the land. The defendant,...
Source-derived case information.
- Citation
- [2009] KEHC 1291 (KLR)
- Parties
- Plaintiff: John M‘Abaciti Kanampiu; Defendant: Baithumbi Ngeera
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 67 of 2005
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- MM Kasango
- Legal Topics
- Trespass to Land, Eviction, Ownership Disputes, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John M‘Abaciti Kanampiu
Plaintiff
Baithumbi Ngeera
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful registered owner of parcel No. Igoji/Kiangua/1744.
- 2 Whether the defendant has trespassed on the plaintiff's land and should be evicted.
- 3 Whether the plaintiff is entitled to general damages for trespass and mesne profits.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit property, as evidenced by the certificate of title and the green card. Section 27(a) of the Registered Land Act confers absolute ownership to the registered proprietor, entitling the plaintiff to possession and use of the land. The defendant, having transferred the property to a third party who then transferred it to the plaintiff, no longer had any legal interest in the land. The defendant's willingness to vacate upon payment was not actionable as he did not file a counterclaim. The plaintiff was deemed a bona fide purchaser for value without notice of any defect in title. The court held that the plaintiff had proved...
Court Disposition
judgment for the plaintiff
Orders
- The defendant shall vacate parcel No. Igoji/Kiangua/1744 within 30 days from the date hereof and in default an order of eviction shall issue.
- The plaintiff is awarded general damages of Kshs. 10,000.
Full Case Text
Judgment text and source record
13 paragraphs
JOHN M‘ABACITI KANAMPIU .................................PLAINTIFF
VERSUS
BAITHUMBI NGEERA...........................................DEFENDANT
JUDGEMENT
The plaintiff’s claim is that he is the registered owner of parcel No. Igoji/Kiangua/1744. He pleaded that the defendant had trespassed on his land and sought prayers for his eviction, general damages for trespass and mesne profit. The defendant in his simple defence denied the plaintiff’s claim and put the plaintiff to strict proof. In evidence the plaintiff produced certificate of title which showed that he was the registered owner of the suit property as at 26th April 2002. He said that he had purchased the property from Gebson Gitonga Kaugi. He produced the said agreement dated 22nd January 2002. On paying the full purchase price, the property was registered in his name. He however said that when the property was registered in his name, he found the defendant using the shamba. The defendant was cultivating and living on that land. From the date when he was registered as an owner, he had not benefited from the land. He prayed that the court will order the defendant to vacate the land since he had entered the land by force. He produced in court a memorandum of understanding signed between him and the defendant whereby the defendant was to vacate and thereafter was to be paid by the plaintiff Kshs. 65,000/=. The defendant in his evidence laid the blame over this dispute on Gebson Gitonga. He said that Gitonga had taken his title, that is the suit property with a view to obtaining a loan and he was supposed to share the loan with the plaintiff. He denied that he had sold the property to Gitonga. It ought to be noted that Gitonga is not a party in this case. He however said that if the plaintiff pay him Kshs. 75,000/= he was willing to vacate the suit property. That is the simple evidence adduced by the parties in this case. The green card of the suit property reveals that the defendant was the registered owner of the suit property in June 1999. He transferred that property to Gitonga in August 1999. Gitonga in turn transferred it to the plaintiff. The plaintiff, according to the green card, is the registered owner of the suit property. Section 27(a) of the Registered Land Act confers certain interest on those who are registered as owners of property. The section provides:-
“27. (a) The registration of a person as the proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto:
It is clear that that section supports the plaintiff’s claim. The plaintiff is entitled to use the suit property and to seek for eviction of the defendant. The defendant even though he said that he was willing to vacate the land on being paid Kshs. 75,000/- did not file a counter claim for the same. This court cannot entertain his prayer. The plaintiff was a bona fide purchaser without notice. The plaintiff has proved his case on a balance of probability and he shall have judgment as follows:-
1. The defendant shall vacate parcel No. Igoji/Kiangua/1744 within 30 days from this date hereof and in default an order of eviction shall issue.
2. The plaintiff is awarded general damages of Kshs. 10,000/=. The plaintiff did not prove mesne profit and the claim fails.
3. The plaintiff is awarded costs for this suit.
Dated and delivered at Meru this 30th day of October 2009
MARY KASANGO
JUDGE