[2009] KEHC 343 (KLR)
The court found that the plaintiff had proved her case on a balance of probabilities. The sale agreement clearly indicated that only three acres were sold to the defendant. The defendant's registration as owner of 2.2 hectares was therefore in excess of what was agreed and is null and void. The court ordered...
Source-derived case information.
- Citation
- [2009] KEHC 343 (KLR)
- Parties
- Plaintiff: Miriam Mbaisi Muchisi; Defendant: Benson Chweya Paul
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Case 97 of 2005
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff.
- Legal Topics
- Land Sale Agreement, Rectification of Land Register, Specific Performance, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Mbaisi Muchisi
Plaintiff
Benson Chweya Paul
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the defendant was entitled to 2.2 hectares or only three acres as per the sale agreement.
- 2 Whether the registration of the defendant as owner of 2.2 hectares was valid.
- 3 Whether the land register should be rectified to reflect the correct acreage.
Ratio Decidendi
The court found that the plaintiff had proved her case on a balance of probabilities. The sale agreement clearly indicated that only three acres were sold to the defendant. The defendant's registration as owner of 2.2 hectares was therefore in excess of what was agreed and is null and void. The court ordered rectification of the land register to reflect the defendant's entitlement to only three acres, with the remainder to be registered in the plaintiff's name. The defendant was also ordered to pay the costs of the suit.
Court Disposition
Judgment for the plaintiff.
Orders
- The registration of the defendant as owner of 2.2 hectares of Plot No. 157/Lugari Settlement Scheme is null and void.
- The Kakamega District Lands Registrar is directed to correct the records to register the defendant as owner of three acres only out of Plot No. 157/Lugari Settlement Scheme.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KAKAMEGA
Civil Case 97 of 2005
MIRIAM MBAISI MUCHISI ----------------..........--------------- PLAINTIFF
VERSUS
BENSON CHWEYA PAUL ------.----------------------------- DEFENDANT
JUDGEMENT
The Plaintiff was the registered proprietor of Plot No. KAKAMEGA LUGARI/909formerly described as Plot No. 157 Lugari Settlement Scheme. She testified that she sold 2. 2 acres to the defendant but instead the defendant transferred to himself 2. 2 hectares.
By an agreement dated 22nd November, 1989 the Plaintiff sold three (3) Acres of her land by then described as Plot No. 157 Lugari Settlement Scheme at a consideration of Kshs.75,000/=. The Plaintiff now prays that the defendant be given the three (3) acres he bought and that the land registry be amended to reflect that fact.
From the evidence of the Plaintiff, I am satisfied that the Plaintiff has proved her case against the defendant. The sale Agreement shows that the Plaintiff sold three acres out of her Plot No. 157 Lugari Settlement Scheme. The defendant is therefore only entitled to three (3) Acres and no more.
Judgement is hereby entered for the Plaintiff against the Defendant as prayed in the Plaint. The registration of the defendant as the owner of 2. 2 Hectares of Plot No. 157/Lugari Settlement Scheme is null and void. The Kakamega District Lands Registrar is hereby directed to correct the records and ensure that the defendant is registered as the owner of three (3) acres out of Plot No. 157/Lugari Settlement Scheme and the remainder to be registered in the Plaintiff’s name.
The Defendant shall pay the costs of this suit.
Delivered, Dated and signed at Kakamega, this12th day of November, 2009.
SAID J. CHITEMBWE
J U D G E