[2023] KEHC 19800 (KLR)

Kibii (Suing on behalf, and as donee of power of attorney from, Samson Mathangani) v Mungai & 3 others (Environment & Land Case E011 of 2021) [2023] KEHC 19800 (KLR) (6 July 2023) (Judgment)

Neutral citation: [2023] KEHC 19800 (KLR)

Republic of Kenya

In the Environment and Land Court at Kajiado

Environment & Land Case E011 of 2021

LC Komingoi, J

July 6, 2023

Between

Ayub Wang’ondu Kibii (Suing on behalf, and as donee of Power of Attorney from, Samson Mathangani)

Plaintiff

and

Geoffrey Kinyanjui Mungai

1st Defendant

Leens Investments Ltd

2nd Defendant

The Land Registrar, Kajiado

3rd Defendant

The Hon Attorney General

4th Defendant

Judgment

1. By a plaint dated July 22, 2021 the plaintiff sees judgement against the defendants jointly and severally for;a.A declaration that the donor, Samson Mathangani is the legal, bona fide, and rightful owner of all that parcel of land known as Kajiado/Kitengela/2436 and that all subsequent transfers and transactions of whatever nature to other persons and/or entities after September 25, 1992 are null and void.b.An order do issue directing the 3rd defendant to rectify the land register at the Kajiado Land Registry in respect of Parcel No Kajiado/kitengela/2436 measuring 4. 0 hectares, specifically by cancelling all transfers effected after September 25, 1992 to other persons other than the donor and reinstate the same to the donor, Samson Mathangani.c.An order of permanent injunction do issue against the 1st and 2nd defendants by themselves, their servants and/or agents from entering, trespassing, alienating, selling or purporting to sell and/or transfer and/or charge or in any other way interfering and/or meddling with any or all, of the portion of the suit property parcel No Kajiado/kitengela/2436 measuring 4. 0 hectares.d.Costs of the suit and, interest accruing therefrom, to be borne by the defendants.

2. By a consent judgement ordered on March 8, 2023 between the plaintiff and the 1st defendant, judgment was entered in favour of the plaintiff as against the 1st defendant in terms of prayers number 1, 2 and 3 of the plaint. The consent was adopted as the judgement of this court.

3. This judgement is therefore in respect of the 3rd and 4th defendants.

4. PW1 Ayub Wang’ondu Kibii, the plaintiff herein testified on March 8, 2023. He relied his witness statement dated July 22, 2021. He also produced the documents in the bundle of documents dated July 22, 2021 as exhibits P1 to P10 respectively.

5. The 2nd, 3rd and 4th defendants who were duly served with copies of plaint and summons to enter appearance, neglected to enter appearance and or file defences within the stipulated period. They were also duly served with the hearing notices for March 8, 2023 but they neglected to attend this court upon being satisfied that they had been duly served directed that the matter proceeds exparte.

6. The plaintiff’s case has not be controverted. It is his case that he is the donee of a power of attorney from Samson Mathangani who resides in the United States of America. He confirmed that the donee has never sold the suit property to any person since he was issued with a title deed on September 25, 1992. He told the court that he has been taking care of the suit property as his brother is away.

7. It is also his case that he went to Kajiado Police Station and was shown a title deed in the name of Geoffrey Kinyanjui Mungai (the 1st defendant) together with transfer documents and a sale agreement between the 1st defendant and the 2nd defendant.

8. He further stated the documents at the Lands Registry Kajiado showing that that’s Samson Mathangani sold the suit property to David Chege Njeri on September 22, 1992 are false as he had not sold the suit property to anybody.

9. As stated earlier the plaintiff’s case is uncontroverted. There is a criminal case against the 1st defendant pending in Kajiado Chief Magistrates’ Court being Criminal Case No 1232 of 2015; Republic Vs Geoffrey Kinyanjui Mungai. The 1st defendant is charged with the offence of forgery. The matter is pending.

10. I find that the plaintiff has proved his case as against the defendants on a balance of probabilities.

11. In conclusion I find that the plaintiff is entitled to the reliefs sought.

12. Accordingly judgement is entered for the plaintiff as against the defendants jointly and severally as follows:a.That a declaration is hereby issued that the Samson Mathangani is the legal, bonafide, and rightful owner of all that parcel of land known as Kajiado/Kitengela/2436 and that all subsequent transfers and transactions to other persons and/or entities after September 25, 1992 are null and void.b.That an order is hereby issued directing the 3rd defendant to rectify the Land Register at the Kajiado Land Registry in respect of Parcel No Kajiado/Kitengela/2436 measuring 4. 0 hectares specifically by cancelling all transfers and transactions effected after September 25, 1992 to the persons other than Samson Mathangani and reinstate the same to Samson Mathangani forthwith.c.That an order of permanent injunction is hereby issued restraining the 1st and 2nd defendants whether by themselves, their servants and/or agents from entering trespassing, alienating, selling or purporting to sell and/or transfer and/or charge or in any other manner interfering and/or intermeddling with any or all of the portion of the suit property known as Kajiado/kitengela/2436 measuring 4. 0 Hectares.d.I make no orders as to costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 6THDAY OF JULY, 2023. L. KOMINGOIJUDGE.IN THE PRESENCE OF:N/A for the PlaintiffN/A for the 1st Defendant.N/A for the 2nd – 4th Defendants.Court Assistant - Mutisya