[2015] KEELC 491 (KLR)
The court found that the Plaintiff had been in possession of the suit property since 1985 and that the Defendant, though registered as proprietor in 1990, had never taken possession. The Plaintiff's evidence that he did not transfer the property to the Defendant was unchallenged, as the Defendant failed to appear or...
Source-derived case information.
- Citation
- [2015] KEELC 491 (KLR)
- Parties
- Plaintiff: Nyevu Mazia Mkongo; Defendant: Elizabeth Kasoha Adema
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 85 of 2014
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's suit allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Land Allocation, Fraudulent Registration, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyevu Mazia Mkongo
Plaintiff
Elizabeth Kasoha Adema
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful owner of Kilifi/Kijipwa/209.
- 2 Whether the Defendant's registration as proprietor was obtained by fraud.
- 3 Whether the Defendant's title should be cancelled and the Plaintiff declared the rightful owner.
Ratio Decidendi
The court found that the Plaintiff had been in possession of the suit property since 1985 and that the Defendant, though registered as proprietor in 1990, had never taken possession. The Plaintiff's evidence that he did not transfer the property to the Defendant was unchallenged, as the Defendant failed to appear or defend the suit. The court held that the Plaintiff had proved his case on a balance of probabilities, particularly as the sale agreement became void for lack of Land Control Board Consent, and the Defendant's registration was not supported by any valid transfer from the Plaintiff. Accordingly, the Plaintiff was declared the rightful owner, and the Defendant's title was subject...
Court Disposition
Plaintiff's suit allowed as prayed.
Orders
- Plaintiff declared the rightful owner of Kilifi/Kijipwa/209.
- Defendant's title to the suit property to be cancelled.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 85 OF 2014
NYEVU MAZIA MKONGO............................................................PLAINTIFF
=VERSUS=
ELIZABETH KASOHA ADEMA...............................................DEFENDANT
J U D G M E N T
1. In the Plaint dated 5th May, 2014, the Plaintiff averred that he was allocated land known as Kilifi/Kijipwa/209 (the suit property) and that he has been in physical possession of the same since 1985.
2. However, in 1985, she entered into an agreement for sale of the suit property with Mtwapa Properties for Kshs.35,000 and that the agreement for sale became null and void because the Land Control Board Consent was not applied for and obtained within six months.
3. According to the Plaintiff's Plaint, she discovered in the year 2012 that the Defendant became the registered proprietor of the land in 1990; that the said registration was obtained by fraud and that he should be declared the rightful owner of the suit property.
4. The Defendant was served with Summons to Enter Appearance by way of advertisement in the Standard Newspaper of 26th June 2014. The Defendant never entered appearance and the matter proceeded for formal proof.
5. In his evidence, the Plaintiff, PW1 informed the court that he resides in the suit property and that he has never seen the Defendant.
6. It was his evidence that he has never transferred the suit property to the Defendant and that the title that was issued to the Defendant should be cancelled.
7. Although the Defendant was served in this matter, she neither enter appearance nor a Defence. The evidence of the Plaintiff has not been controverted. I have perused the copy of the Certificate of Official Search which shows that the Defendant was registered as the proprietor of the suit property on 24th August 1990. She has never taken possession of the suit property since then.
8. In view of the fact that the evidence of the Plaintiff that he is the lawful owner of the suit property has not been challenged, I find and hold that the Plaintiff has proved his case on a balance of probabilities.
9. I therefore allow the Plaint dated 5th July, 2014 as prayed.
Dated and delivered in Malindi this 15th day of May,2015.
O. A. Angote
Judge