[2010] KEHC 3651 (KLR)
The court held that while the plaintiffs are the registered owners of the disputed land and possess certificates of title, the defendants have raised serious allegations of fraud and public interest in the manner the land was acquired and registered. The existence of these allegations and the opposition of the...
Source-derived case information.
- Citation
- [2010] KEHC 3651 (KLR)
- Parties
- Plaintiff: Joseph Murori Muiruri; Plaintiff: Lucy Wanjiku Murori; Defendant: E J Gachuche; Defendant: James Wahome Githaiga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 906 of 2007
- Procedural Posture
- Chamber Summons / Ruling on Application to Strike Out Defence and Counterclaim
- Outcome
- application dismissed with costs to the defendants
- Judges
- DA Onyancha
- Legal Topics
- Striking Out Pleadings, Fraud in Land Registration, Public Land, Title Certificates, Locus Standi
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Murori Muiruri
Plaintiff
Lucy Wanjiku Murori
Plaintiff
E J Gachuche
Defendant
James Wahome Githaiga
Defendant
Procedural Posture
Chamber Summons / Ruling on Application to Strike Out Defence and Counterclaim
Legal Issues
- 1 Whether the defendants' defence and counterclaim are scandalous, frivolous, or vexatious and should be struck out.
- 2 Whether the plaintiffs' certificates of title are conclusive under the Registered Land Act in the face of allegations of fraud and public interest.
- 3 Whether the defendants have locus standi to challenge the plaintiffs' title on grounds of public interest.
Ratio Decidendi
The court held that while the plaintiffs are the registered owners of the disputed land and possess certificates of title, the defendants have raised serious allegations of fraud and public interest in the manner the land was acquired and registered. The existence of these allegations and the opposition of the Municipal Council to the alienation of the land in favour of the plaintiffs indicate that there are substantive issues that require determination at a full trial. The mere fact of registration and possession of title does not bar the defendants from raising issues of fraud or public interest. Therefore, the defence and counterclaim are not scandalous, frivolous, or vexatious, and...
Court Disposition
application dismissed with costs to the defendants
Orders
- The plaintiffs' application to strike out the defence and counterclaim is dismissed.
- Costs of the application are awarded to the defendants.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Environmental & Land Case 906 of 2007
JOSEPH MURORI MUIRURI. ............................. 1ST PLAINTIFF
LUCY WANJIKU MURORI. ................................ 2ND PLAINTIFF
VERSUS
E J GACHUCHE. ............................................... 1ST DEFENDANT
JAMES WAHOME GITHAIGA. ........................ 2ND DEFENDANT R U L I N G
The application before me is a Chamber Summons dated 6th November, 2007 brought by the Plaintiff. It seeks that the Defendant’s Defence and Counterclaim be struck out for being scandalous, frivolous and vexatious.
The Plaintiffs claim in their plaint is that they are the first registered owners of L.R. Thika Municipality/Block 2/842 and L.R. No. Thika Municipality/Block 2/843 in respect of which they have certified of title. They aver that the Defendants in March 2007 without lawful authority or consent from the Plaintiffs, wrongfully and illegally trespassed on the said plots of land by fencing them. The Plaintiffs accordingly claim suffering loss and damage.
The Defendants in their defence claim that the said pieces of land have been unlawfully alienated from a public road used by them and by other members of the public. They further aver that if the Plaintiffs have been issued with titles to the pieces of land, then the certificates thereof are fraudulent and unlawful. They claim that the suit plots have been delimited infront of their houses in Makongeni Estate, thus denying them access from the estate to the public road.
In a counterclaim, the Defendants have claimed that the Plaintiffs are trespassing on public land to the detriment of the Defendants and other members of the public. They accordingly seek cancellation of the certificates of title and removal of the Plaintiffs from the same to give access to the road by Defendants and other members of the public.
It is on the above circumstances that the Plaintiff in this application seeks a striking out of the Defendants defence and counter-claim. The reasons shown in the supporting affidavit are that the defence and counter claim are scandalous, frivolous and vexatious. This, the Plaintiffs say, is because they hold certificates of title to the suit lands as lessees from the Government in a first registration which under section 153 of the Registered Land Act, Cap 300, is final and conclusive. The Plaintiffs also assert that the Plaintiffs have no locus standi to protect the interests of the public.
I have carefully considered the grounds upon which this application is based. Clearly, the Plaintiffs are the registered owners of the two pieces of land in dispute. However, the defendants are alleging fraud in the manner the registration of ownership of the suit properties was obtained. Effectively, the Defendants are averring that there was no lawful basis upon which the Plaintiff would have acquired and registered in his own name a public land used and usable by the members of the public of whom they are one.
It appears to me also that whether or not other members of public are interested in preserving the usage of the suit premises, that alone does not stand on the way or prevent the Defendants from protecting their own personal rights over the land from being violated by the Plaintiffs.
It is also apparent from the record that the Municipal Council of Thika in which the pieces of land in dispute are situated and who are the custodians of it at the local level, all along stood against alienation of the plots in favour of the Plaintiffs on public interest.
The end result therefore is that mere registration of ownership of the suit premises, plus the availability of certificates of title in the hands of the Plaintiff, does not close out the defendants from raising the issues of fraud and/or public interest. The case raises many reasonable issues which can only be disposed of by concrete evidence during full trial. The defence and Counter-claim filed is not scandalous or frivolous or vexatious therefore. The suit therefore is a proper one to go to trial.
This application in conclusion, has no merit. It is hereby dismissed with costs to the Defendants. Orders accordingly.
Dated and delivered at Nairobi this 4th day of February, 2010.
........................................
D A ONYANCHA
JUDGE