[2016] KEHC 4013 (KLR)
The court found that the plaintiff had established, through undisputed documentary evidence, that the defendant had consented to and executed a transfer of Kimilili/Kibingei/4425 to the plaintiff, with the requisite land control consent. Upon completion of these formalities, the beneficial interest in the land...
Source-derived case information.
- Citation
- [2016] KEHC 4013 (KLR)
- Parties
- Plaintiff: Leonard Wafula Shikuku; Defendant: Mark Juma Wafula
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 190 of 2014
- Procedural Posture
- Land Case / Judgment
- Outcome
- Judgment for the plaintiff. Subdivisions cancelled. Land to revert to plaintiff. Costs awarded to plaintiff.
- Legal Topics
- Land Transfer, Land Control Board Consent, Subdivision of Land, Gift of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leonard Wafula Shikuku
Plaintiff
Mark Juma Wafula
Defendant
Procedural Posture
Land Case / Judgment
Legal Issues
- 1 Whether the defendant lawfully transferred beneficial interest in Kimilili/Kibingei/4425 to the plaintiff.
- 2 Whether the subsequent subdivision and sale of the land by the defendant was valid after transfer of interest.
- 3 Whether the subdivisions Kimilili/Kibingei/4813-15 should be cancelled and the land reverted to the plaintiff.
Ratio Decidendi
The court found that the plaintiff had established, through undisputed documentary evidence, that the defendant had consented to and executed a transfer of Kimilili/Kibingei/4425 to the plaintiff, with the requisite land control consent. Upon completion of these formalities, the beneficial interest in the land passed to the plaintiff, and the defendant ceased to have any legal interest in the property. Consequently, the defendant's subsequent actions in subdividing and selling the land were without legal basis or authority. The court held that the subdivisions Kimilili/Kibingei/4813-15 were created by a person with no legal interest and must be cancelled, with the land reverting to the...
Court Disposition
Judgment for the plaintiff. Subdivisions cancelled. Land to revert to plaintiff. Costs awarded to plaintiff.
Orders
- Subdivisions Kimilili/Kibingei/4813-15 are cancelled.
- Land to revert to original parcel Kimilili/Kibingei/4425.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMEMNT CASE NO. 190 OF 2014
LEONARD WAFULA SHIKUKU ……...PLAINTIFF/APPLICANT
VERSUS
MARK JUMA WAFULA……….....DEFENDANT/RESPONDENT
JUDGEMENT
[1] The plaintiff brought this case against his own father. His claim is that his father promised to give him one acre out of Kimilili/Kibingei/4425. The plaintiff avers that his father took him to the Land Control and consented to give him one acre thereof as a gift. He says the transaction was approved by the Land Control Board.
[2] However, after that consent the defendant changed his mind. He had land parcel Kimilili/Kibingei/4425 subdivided and he created Kimilili/Kibingei/4813-15 with the sole aim of denying the plaintiff the alleged land. The plaintiff says that the defendant has started to sell the resultant subdivisions.
[3] The plaintiff now wants the said sub divisions in Kimilili/Kibingei 4813 to Kimilili/Kibingei/15 be cancelled and that the land do revert to the Original Kimilili/Kibingei/4425. He relied on his statement filed herein and the list of exhibits filed herein. He called no witnesses. The defendant did not opt to file any defence though served.
[4] The plaintiff produced an application for land control consent, a consent to transfer Kimilili/Kibingei/4425 from Mark Juma Wafula to Leonard Shikuli Wafula for the whole of the land. Also enclosed was receipt No. 1256137 from Kenya Revenue Authority dated 13/5/2013. There was also a transfer from Mark Juma Wafula to Leonard Shikuku Wafula I/D No. 8783247 dated 2nd May 2013 duly executed by the parties before Simiyu A. Makokha advocate.
[5] All these documents were not disputed by the defendant. Once the land control consent was granted for the sale of Kimilili/Kibingei/4425 and a transfer signed by the vendor the beneficial interest in the property passed from the defendant to the plaintiff. The defendant had therefore no capacity to deal with Kimilili/Kibingei/4425. His attempt to sub divide the same and /or sell the resultant parcels was misconceived. He had no interest in the land he subdivided and/or sold.
[6]As a result the parcels created by defendant as Kimilili/Kibingei/4813-15 must be cancelled. They were created by a person whose legal interest on the same had ceased. Those sub divisions shall be cancelled and the land shall revert to Kimilili/Kibingei/4425. The same shall be registered in the name of the plaintiff.
The plaintiff shall have the costs of this case.
It is so ordered.
Dated, signed and delivered at Bungoma this 27thday of July 2016
S.MUKUNYA - JUDGE
In the presence of
Gladys/Joy court assistants
Mr. Were for Mr. Kituyi
N/A for defendant