[2002] KEHC 647 (KLR)
The court found that the plaintiff failed to appear and offer evidence in support of his claim, resulting in dismissal of his suit. The 3rd defendant's counterclaim was supported by unchallenged evidence that he purchased the land for value, obtained the necessary consents, and was prevented from registering the...
Source-derived case information.
- Citation
- [2002] KEHC 647 (KLR)
- Parties
- Plaintiff: Peter Karanja Mungai; Defendant: Daniel Njoroge Kamau; Defendant: 3rd Defendant
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 5869 of 1993
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment entered for the 3rd defendant on the counterclaim. Plaintiff's suit dismissed. Temporary stay of 14 days granted.
- Legal Topics
- Land Sale Agreements, Transfer of Title, Cautions on Land, Injunctions, Counterclaims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Karanja Mungai
Plaintiff
Daniel Njoroge Kamau
Defendant
3rd Defendant
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff was entitled to the transfer of parcel KABETE/NYATHUNYA/1673 based on an alleged sale agreement.
- 2 Whether the 3rd defendant acquired the land for value without notice and is entitled to registration and removal of caution.
- 3 Whether the plaintiff or his agents should be restrained from interfering with the property.
Ratio Decidendi
The court found that the plaintiff failed to appear and offer evidence in support of his claim, resulting in dismissal of his suit. The 3rd defendant's counterclaim was supported by unchallenged evidence that he purchased the land for value, obtained the necessary consents, and was prevented from registering the transfer solely due to a caution by the plaintiff. As the plaintiff did not contest the counterclaim or cross-examine the 3rd defendant, the court accepted the 3rd defendant's version of events. The court held that the 3rd defendant was entitled to the removal of the caution, registration of the transfer, and an injunction restraining the plaintiff from interfering with the...
Court Disposition
Judgment entered for the 3rd defendant on the counterclaim. Plaintiff's suit dismissed. Temporary stay of 14 days granted.
Orders
- Plaintiff's suit is dismissed for want of prosecution.
- Judgment is entered for the 3rd defendant on the counterclaim as prayed.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 5869 OF 1993
PETER KARANJA MUNGAI ……………………………….. PLAINITFF
VERSUS
DANIEL NJOROGE KAMAU & ANOR ………………….. DEFENDANT
JUDGEMENT
The Plaintiff’s suit was dismissed on 16. 10. 2002 for failure to appear and offer any evidence although the date was given in court in the presence of counsel for both parties. The matter then proceeded to the hearing of the counterclaim filed by the 3rd defendant. Again no evidence was offered by or on behalf of the plaintiff to dispute that counterclaim.
In issue is a parcel of land known as KABETE/NYATHUNYA/1673 which was admittedly registered in the name of the 1st defendant. It is an Agricultural piece of land.
The Plaintiff had claimed that he bought the land from the registered owner but that the owner had reneged on their agreement and failed to transfer it. Instead he had sold it to the 3rd defendant.
The 3rd defendant was joined in the suit and filed his defence and counterclaim on 04. 01. 1995. He averred that he acquired the piece of land for value without notice of anyone else’s interest and had obtained the necessary consents for transfer. The transfer was not registered due to a caution lodged against the title by the Plaintiff. He seeks an order for removal of the caution or in the alternative an order compelling registration of the transfer and an Injunction to restrain the Plaintiff or his servants or agents from interfering with the property.
I heard the 3rd defendant testify on oath on his counterclaim. He confirmed that he had purchased the parcel of land and took possession of it. The Plaintiff, he said, was interfering with a portion of it although he has no legal right to do so. He sought the orders prayed for.
There was no cross-examination on that evidence from the plaintiffs counsel who walked in the middle of the evidence. The evidence stands unchallenged and I have therefore no reason to doubt it. I enter Judgment on the counterclaim and grant the orders as prayed in the counterclaim. Costs of the counterclaim to the 3rd defendant. Dated this 24th day of October, 2002.
P. N. WAKI
JUDGE
24. 10. 2002
Waki J.
Kubatia for Plaintiff
No appearance for Defendant
CC: Mulinge
Judgment delivered dated and signed in chambers.
P. N. WAKI
JUDGE
KUBATIA
I apply for stay pending a formal application.
ORDER:
Temporary stay for 14 days.
P. N. WAKI
JUDGE