[2008] KEHC 899 (KLR)
The court found that the plaintiff was the original and lawful allottee and registered owner of the suit property. The evidence showed that the 1st and 2nd defendants had entered into an agreement to purchase the property but failed to pay the full purchase price, resulting in rescission of the agreement and refund...
Source-derived case information.
- Citation
- [2008] KEHC 899 (KLR)
- Parties
- Plaintiff: Joseph Mutua Kyenze; Defendant: Cliff Ongeri Ondari; Defendant: Isaac Ongubo Kibwage; Defendant: Joseph Kalunde
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1113 of 2004
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff. Title in the names of the 1st and 2nd defendants revoked and substituted with the plaintiff's name. Claim for mesne profits declined. Costs awarded to the plaintiff.
- Legal Topics
- Fraudulent Transfer, Land Allocation, Title Revocation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph Mutua Kyenze
Plaintiff
Cliff Ongeri Ondari
Defendant
Isaac Ongubo Kibwage
Defendant
Joseph Kalunde
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the transfer of the suit property to the 1st and 2nd defendants was fraudulent.
- 2 Whether the plaintiff is entitled to revocation of the title registered in the names of the 1st and 2nd defendants and substitution with his name.
- 3 Whether the plaintiff is entitled to mesne profits and costs.
Ratio Decidendi
The court found that the plaintiff was the original and lawful allottee and registered owner of the suit property. The evidence showed that the 1st and 2nd defendants had entered into an agreement to purchase the property but failed to pay the full purchase price, resulting in rescission of the agreement and refund of their deposit. Despite this, the property was fraudulently transferred and registered in their names. The defendants did not call any evidence to rebut the plaintiff's case. The court held that the transfer to the 1st and 2nd defendants was fraudulent and ordered revocation of their title, substituting the plaintiff as the rightful owner. The claim for mesne profits was...
Court Disposition
Judgment for the plaintiff. Title in the names of the 1st and 2nd defendants revoked and substituted with the plaintiff's name. Claim for mesne profits declined. Costs awarded to the plaintiff.
Orders
- Title 40213/3 registered in the names of the 1st and 2nd defendants is revoked.
- The plaintiff is substituted as the registered owner of the suit property.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1113 of 2004
JOSEPH MUTUA KYENZE ………….…………………………. PLAINTIFF
VERSUS
CLIFF ONGERI ONDARI …………………………………… 1st DEFENDANT
ISAAC ONGUBO KIBWAGE ……….……………………. 2ND DEFENDANT
JOSEPH KALUNDE ………………………………………… 3RD DEFENDANT
JUDGMENT
1: Background
1: Joseph Mutua Kyenzi (the plaintiff) was allocated land within the Syokimau Farm Ltd. This was plot No. 427 letter of an allotment 217 and share certificate 591.
2. At one time Cliff Ongeri and Isaac Oguo Kibwaga (the 1 and 2 defendants herein) intended to buy the same piece of property. They defaulted in the payment and the agreement was rescinded. Their deposit was returned to their said advocate.
3. The plaintiff herein was the lawful person allocated some sometime in 1988. In the meantime M/s Syokimau Firm, Ltd were allocated the original title deed grant LR44738 under the Registered Lands Act with the term running from 1 November 1983.
4. The defence filed by defendant 1 and 2 admits that the plaintiff was indeed the registered owner of LR number 12715/231. IR number 44738 the plaintiff alleged that the 1 and 2 defendant with collision of 3rd defendant fraudulently caused the suit property to be transferred and register in their name.
6. The 3rd defendant herein was the deputy Mayor of Machakos. He neither entered appearance nor filed defence in this suit. There is Interlocutory Judgment entered against him on the 8 December 2004 by the deputy registrar of this court (Order 48 Civil Procedure Rules).
7. The defence by 1 and 2 defendants was that though the plaintiff was the registered owner they followed the laid down procedure and acquired the land legitimately. That there was no fraudulent dealing. They infact had purchased the suit premises. The plaintiff, they alleged “is” just out to make money out of justice in his claim.” The plaintiff in reply denied this.
Agreed Issues
8. The parties had agreed to issue for determination of this court on 12 May 2006. On the day set down for hearing the advocate for 1 and 2 defendant changed from M/s Kili Korir & Co. to M/s Kipsang Murugi Mugo & Co. Advocates.
9. The issues for determination remained the same. The new advocates obtained an adjournment but failed to pay the getting up costs on the day. The defendant called no evidence.
10 It is the plaintiff who gave evidence and from the proceeding and that evidence that the issue be accordingly determined as follows:-
11. The defendant 1 and 2 admitted that the registered owner of LR12715/321 IR| No.44738 the suit property in question has always been the plaintiff. The property, according to the defence was purchased and transferred to the defendant 1 and 2 lawfully following laid down procedure. The plaintiff on the other had denies this and stated that the transfer was fraudulently acquired without his knowledge.
12. I have noted the demeanour of the plaintiffs who appears to be a truthfull witness. I further note that this dispute had been on going since 1987/1988 whereby all along the plaintiff had been said to have been the original allottee and registered owner. That subsequently the 1 and 2 defendant were fraudulently registered as owners yet the two defendants claim to have bought the land. From the evidence to court of a letter of 1 September 1988 the defendants 1 and 2 had intended to purchase the suit premises in question BUT the said agreement was rescinded due to non payment of the full purchase price. The defendants deposit was accordingly refunded of Ksh.30,000/-.
III: Finding
I give the plaintiff his prayers and accordingly revoke title 40213/3 registered in the names of 1 and 2 defendants having been fraudulently acquired and substitute the name of the plaintiff.
13. I decline to award mense profits as the plaintiff did not demonstrate and speak or on this point.
14. I award costs to the plaintiff.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
A. Kimathi for Arimi Kimathi & Co. Advocates for the plaintiff – present
S.K. Meto for Kipsang, Murugi Mugo & Co. Advocates for the defendants