[2019] KEELC 1046 (KLR)
The court found that the Plaintiff had produced a valid title deed and transfer documents evidencing ownership of the suit property. The Defendants, having failed to appear or file a defence, did not challenge the Plaintiff's ownership or provide any evidence of fraud, misrepresentation, or illegality in the...
Source-derived case information.
- Citation
- [2019] KEELC 1046 (KLR)
- Parties
- Plaintiff: Kahawa West Jubilee Investment Ltd; Defendant: James Gitau; Defendant: John Kainga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 44 of 2016
- Procedural Posture
- Land Case / Judgment
- Outcome
- Plaint allowed as prayed. Judgment for the Plaintiff.
- Judges
- OA Angote
- Legal Topics
- Title Registration, Trespass, Permanent Injunction, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kahawa West Jubilee Investment Ltd
Plaintiff
James Gitau
Defendant
John Kainga
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the Plaintiff is the registered proprietor of the suit property.
- 2 Whether the Defendants trespassed on the Plaintiff's land.
- 3 Whether the Plaintiff is entitled to a permanent injunction and eviction orders against the Defendants.
Ratio Decidendi
The court found that the Plaintiff had produced a valid title deed and transfer documents evidencing ownership of the suit property. The Defendants, having failed to appear or file a defence, did not challenge the Plaintiff's ownership or provide any evidence of fraud, misrepresentation, or illegality in the acquisition of the title. Section 26(1) of the Land Registration Act was applied, confirming the Plaintiff's title as absolute and indefeasible in the absence of proof to the contrary. The Plaintiff was therefore entitled to the orders sought, including a permanent injunction and eviction of the Defendants from the suit property.
Court Disposition
Plaint allowed as prayed. Judgment for the Plaintiff.
Orders
- A permanent injunction is issued restraining the Defendants from trespassing on Ndalani/Mavoloni Block 1/1009.
- An eviction order is issued against the Defendants from the suit property.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 44 OF 2016
KAHAWA WEST JUBILEE INVESTMENT LTD................PLAINTIFF
VERSUS
JAMES GITAU ...............................................................1ST DEFENDANT
JOHN KAINGA .............................................................2ND DEFENDANT
JUDGMENT
1. In the Plaint dated 15th June, 2016, the Plaintiff has averred that he is the registered proprietor of land known as Ndalani/Mavoloni Block 1/1009 (the suit property); that he acquired the land from one Moses Mutune Kithome for valuable consideration and that in the year 2009, the Defendants jointly and severally trespassed on the suit land.
2. The Plaintiff’s claim is for an order of permanent injunction restraining the Defendants from trespassing on the suit land and for an eviction order to issue.
3. Although the Defendants were served with the Defence, they neither entered appearance nor filed a Defence. The suit proceeded undefended.
4. The Plaintiff’s Director, PW1, informed the court that the Plaintiff purchased parcel number Ndalani/Mavoloni Block 1/1009. PW1 produced in evidence the Transfer documents dated 29th February, 2016. The said Transfer document shows that the Plaintiff purchased the suit property from Moses Mutune Kithome in consideration of “SALE”.The Transfer was registered by the Land Registrar on 9th March, 2016.
5. PW1 also produced in evidence the Title Deed for parcel of land known as Ndalani/Mavoloni Block 1/1009 issued on 16th October, 2015. Section 26(1) of the Land Registration Act provides as follows:
“(1) The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—
(a) on the ground of fraud or misrepresentation to which the person is proved to be a party; or
(b) where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.”
6. Considering that the Defendants have not rebutted the averments of the Plaintiff, neither have they shown that the Plaintiff’s Title Deed was obtained fraudulently or by misrepresentation, I find that the Plaintiff has proved his case on a balance of probability.
7. For those reasons, I allow the Plaint dated 15th June, 2016 as prayed.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 18TH DAY OF OCTOBER, 2019.
O.A. ANGOTE
JUDGE