[2015] KEELC 373 (KLR)
The court found that the Plaintiff had established, on a balance of probabilities, that the 1st and 2nd Defendants fraudulently represented themselves as heirs of the deceased registered proprietor and unlawfully procured the sub-division of the suit property without involving the rightful administrators. The...
Source-derived case information.
- Citation
- [2015] KEELC 373 (KLR)
- Parties
- Plaintiff: Nicholas Kombe Pembe; Defendant: Kenga Kombe; Defendant: Kaleso Kombe; Defendant: Registrar of Lands-Kilifi; Defendant: Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 111 of 2009
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's suit allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Land Title, Fraudulent Transfer, Succession, Land Subdivision
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Kombe Pembe
Plaintiff
Kenga Kombe
Defendant
Kaleso Kombe
Defendant
Registrar of Lands-Kilifi
Defendant
Attorney General
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the 1st and 2nd Defendants fraudulently represented themselves as heirs of Pembe Murogo Kithi.
- 2 Whether the sub-division of Kaloleni/Vishakani/538 into plots 876, 877, and 878 was lawful.
- 3 Whether the Plaintiff is entitled to cancellation of the resultant sub-divisions.
Ratio Decidendi
The court found that the Plaintiff had established, on a balance of probabilities, that the 1st and 2nd Defendants fraudulently represented themselves as heirs of the deceased registered proprietor and unlawfully procured the sub-division of the suit property without involving the rightful administrators. The Defendants failed to rebut the Plaintiff's evidence, and the Plaintiff's claim was unchallenged. The court concluded that the Plaintiff was entitled to the reliefs sought, including the cancellation of the sub-divisions resulting from the fraudulent process.
Court Disposition
Plaintiff's suit allowed as prayed.
Orders
- Plaint dated 20th September 2010 is allowed as prayed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.111 OF 2010
NICHOLAS KOMBE PEMBE.............................PLAINTIFF
=VERSUS=
1. KENGA KOMBE
2. KALESO KOMBE
3. REGISTRAR OF LANDS-KILIFI
4. ATTORNEY GENERAL.............................DEFENDANTS
J U D G M E N T
Introduction:
On the 20th September 2010, the Plaintiff filed a Plaint in which he averred that at all material times, Pembe Murogo was the registered proprietor of parcel of land known as Kaloleni/Vishakani/538; that Pembe Murogo Kithi died intestate on 17th July 1985 and that him, together with his brother were granted letters of administration in respect to the estate of the late Pembe Murogo Kithi.
It is the averment and evidence of the Plaintiff, PW1, that the 1st and 2nd Defendants unlawfully represented themselves as heirs of Pembe Murogo Kithi and fraudulently instituted Land Award Case Number 13 of 1996 which resulted in the sub-division of Kaloleni/Vishakani 538 into plot numbers 876, 877 and 878.
It was the evidence of the Plaintiff that although he was in possession of the original title deed for plot number 538, the same was burnt when his advocate's offices were razed by fire. The Plaintiff produced the copy of the title deed as PEXB1.
PW1 informed the court that they were never involved in the sub-division of Plot No.538 and he wants the resultant sub-divisions cancelled.
Although the Defendants were served with Summons to Enter appearance, they neither entered appearance nor filed a Defence.
The evidence by the Plaintiff was not rebutted.
In the circumstances, I am satisfied that the Plaintiff has proved his case on a balance of probabilities.
For those reasons, I allow the Plaintiff's Plaint dated 20th September 2010 as prayed.
Dated and delivered in Malindi this 3rd day of July2015.
O. A. Angote
Judge