[2009] KEHC 3846 (KLR)
The court found that the plaintiff had proved his case on a balance of probabilities. The evidence established that the parties are co-registered owners of the suit land, with each entitled to a specific share as reflected in the register. The plaintiff demonstrated that he had sought the defendants' cooperation for...
Source-derived case information.
- Citation
- [2009] KEHC 3846 (KLR)
- Parties
- Plaintiff: Kiptanui Rono; Defendant: Julius Kiprotich Kisorio; Defendant: Augustine Kiplimo Kisorio; Defendant: Daniel Kipkemboi Tanui
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 77 of 2006
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Co Ownership, Partition of Land, Title Deeds, Land Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiptanui Rono
Plaintiff
Julius Kiprotich Kisorio
Defendant
Augustine Kiplimo Kisorio
Defendant
Daniel Kipkemboi Tanui
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an order for partition and subdivision of the suit land among the registered co-owners.
- 2 Whether the defendants should be compelled to execute the necessary documents for partition and conveyance.
- 3 Whether the court can authorize execution of documents by the Deputy Registrar in default of the defendants' compliance.
Ratio Decidendi
The court found that the plaintiff had proved his case on a balance of probabilities. The evidence established that the parties are co-registered owners of the suit land, with each entitled to a specific share as reflected in the register. The plaintiff demonstrated that he had sought the defendants' cooperation for partition, but they refused to participate or execute the necessary documents. The law entitles a co-owner to partition and to a separate title for their share. In the absence of defence or contrary evidence, and with one co-owner consenting, the court held that the plaintiff is entitled to the orders sought. The court further held that, in default of the defendants executing...
Court Disposition
Judgment for the plaintiff.
Orders
- The defendants shall execute all necessary documents to partition parcel NANDI/KAPLAMAI/82 so each registered owner receives title to their respective share.
- Each registered owner shall bear the costs of subdivision of their respective share.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET
Civil Suit 77 of 2006
KIPTANUI RONO.................................... PLAINTIFF
=VERSUS=
JULIUS KIPROTICH KISORIO
AUGUSTINE KIPLIMO KISORIO AND
DANIEL KIPKEMBOI TANUI ................................ DEFENDANT
J U D G M E N T
The Plaintiff filed suit on 6th July 2006 as against the three Defendants in the Suit claiming the subdivision of the parcel of land known as NANDI/KAPLAMAI/82 between himself and the three Defendants and one Joseph Kimaru Mutai all of whom are registered owners of the said parcel of land. The subdivision and/or partition of the land is so that each party gets his own title as to his own share of the land. The Plaintiff prays in the plaint that the Defendants be ordered to execute application for consent to partition the parcel of land above described and also that the Defendants do execute application for partition and mutation forms and all documents of conveyance to partition the said parcel of land and in default the Court do executed all the relevant documents in place of the Defendants.
The Plaintiff’s further case is that one of the co-registered owners of the suit land one Joseph Kimaru Mutai has agreed to execute all the necessary documents for the partitioning of the suit land but the three Defendants have, despite demand, refused to do the same. Consequently the Plaintiff prays as above and for costs of the suit.
The Defendants did not enter appearance and they did not file any defence although they were served with summons to enter appearance.
At the hearing the Plaintiff gave evidence that the Defendants have refused to sign the necessary documents to enable the partitioning of the suit land and they have also refused to participate in the Suit. He produced the Title Deed over Nandi/Kaplamai/82 as Exhibit number one and produced the Certified true copy of the Register popularly known as the Green Card as exhibit number 2. The Title Deed shows the Registered Proprietors as Julius Kiprotich Kisorio, Augustine Kiplimo Kisoria, Daniel Kipkemboi Tanui, Kiptanui Rono and Joseph Kimaru Mutai.
Exhibit marked as number 2, the certified true copy of the Register shows each party’s share as follows:-
1. Julius Kiprotich Kisorio - 0. 9 acres
2. Augustine Kiplimo Kisorio - 1. 1 acres
3. Daniel Kipkemboi Tanui - 0. 2 acres
4. Kiptanui Rono - 3. 5 acres
5. Joseph Kimaru Mutai - 0. 6 acres
As already stated the Defendants did not file a defence. The Plaintiff pleaded that Joseph Kimaru Mutai has agreed to sign the necessary documents to enable the partitioning of the Suit Land.
I consider the pleadings and the evidence of the Plaintiff and find that the Plaintiff has proved his case on a balance of probability as by law required. I consequently enter judgment for the Plaintiff and Order that the Defendants shall execute all the necessary documents so that the parcel of land known as NANDI/KAPLAMAI/82 shall be divided to enable each registered owner to get title in respect of his respective share of the land. I Order that each Registered Owner shall bear the costs of the subdivision of his respective share. In default of the Defendants signing the necessary documents, the Deputy Registrar of this Court shall execute the same to enable the said Subdivision. The Defendants will pay the costs of this Suit.
DATED AND DELIVERED AT ELDORET THIS 13TH DAY OF MAY 2009.
P.M. MWILU,
JUDGE.
In the presence of :
Court Clerk -
Advocates for the Plaintiff –