[2014] KEHC 1898 (KLR)
The court found that the plaintiff was granted a freehold title to the suit land on 22nd October 2009, and there was no evidence that the title was obtained unlawfully. The defendant's subsequent allocation and leasehold title were invalid because the land was not available for allocation, having already been...
Source-derived case information.
- Citation
- [2014] KEHC 1898 (KLR)
- Parties
- Plaintiff: Mrabu Bakari Mrabu; Defendant: Clara Mema Tsuma
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 120 of 2012
- Procedural Posture
- Land and Property Dispute / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- SN Mukunya
- Legal Topics
- Land Ownership, Title Registration, Competing Titles, Compulsory Acquisition
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mrabu Bakari Mrabu
Plaintiff
Clara Mema Tsuma
Defendant
Procedural Posture
Land and Property Dispute / Judgment
Legal Issues
- 1 Who is the legal owner of land reference number 158/III/MN between the plaintiff and the defendant?
- 2 Whether the title issued to the defendant is valid or null and void.
Ratio Decidendi
The court found that the plaintiff was granted a freehold title to the suit land on 22nd October 2009, and there was no evidence that the title was obtained unlawfully. The defendant's subsequent allocation and leasehold title were invalid because the land was not available for allocation, having already been registered in the plaintiff's name. The only lawful way for the government to reclaim the land would have been through compulsory acquisition and compensation, which did not occur. Therefore, the plaintiff is the legal owner, and the defendant's title is null and void.
Court Disposition
judgment for the plaintiff
Orders
- Land Reference 158/III/MN is declared owned by the plaintiff.
- The title held by the defendant for that property is declared null and void.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. NO. 120 OF OF 2012B
MRABU BAKARI MRABU ................................................. PLAINTIF
- VERSUS -
CLARA MEMA TSUMA................................................DEFENDANT
JUDGEMENT
[1] The simple facts of this matter is that the plaintiff applied and was granted a freehold title of land reference number 158 of section no. III Mainland North comprising of three decimal nought five (3. 05) acres and was registered as owner on 22nd day of October 2009. He was issued with a title deed thereof. He later called a surveyor a Mr Zimmerlin who subdivided the said plots into plot numbers MN/III/6233, 6234, 6235 and 6236. The title deeds of those plots were produced in court.
According to the records produced by the defendant, a reply to D.C.Kilifi from Department of Lands dated 18th December 1998, referring to her application showed that she applied for a residential plot a Kilifi Township. It was recommended that she should be assisted. Though the letter talked about Kilifi Township, it would appear that all other documents referred to Plot LR/148/Section IV/MN.
She was eventually allocated Plot no. 158/III/MN for a term of 99 years from 1st September, 2010. She visited the land in February 2012 and found people constructing walls of the house. The people she found constructing were doing so on authority of the plaintiff.
The plaintiff and the defendant in this case have title for the same plot. This is what has brought the dispute now in court.
[2] The question for determination is, who is the legal owner of land reference number 158/III/between the plaintiff and the defendant?
The plaintiff was granted a leasehold title by the Government on 22nd day of October 2009. It is not argued that he was allocated the freehold interest through fraud, mistake, misrepresentation or through any unlawful means. He therefore became the defacto and the dejure owner since he had previously been in occupation and was later granted a freehold interest. The fact that the defendant had applied for this plot prior to that date is of no consequence to ownership by the plaintiff.
[3] This plot land reference 158/III/MN was not available for allocation by the Commissioner of Lands to the defendant as a leasehold for 99 years from 1st September 2010. The title issued to the defendant for the suit land on 26th May 2011 could not therefore confer any interests to the defendant. The only way the Commissioner of Land for the Government could get back land from the plaintiff was by compulsory acquisition upon full compensation which was not the case here. This court therefore declares,
1. That land Reference 158/III/MN is owned by the plaintiff
2. The title held by the defendant for that property is null and void.
3. The Registrar of Titles shall cancel the defendants title to the same forthwith.
4. Each part shall bear its own costs.
Dated and delivered in open Court this 30th day of October, 2014.
S. MUKUNYA
JUDGE
30. 10. 2014
In the presence of;
Mr. Oddiaga Advocate for the plaintiff
Mr. Obara Advocate for the defendant