[2006] KEHC 3032 (KLR)
The court found that the plaintiff failed to prove lawful ownership of the suit land. The letter of allotment produced was in the name of the deceased Paul Ndeto, and the land, being government land, was not subject to sale. Any purported sale agreement was therefore null and void. Furthermore, the plaintiff did not...
Source-derived case information.
- Citation
- [2006] KEHC 3032 (KLR)
- Parties
- Plaintiff: Peter Mutisya Mutua; Defendant: John Irungu Musomi; Defendant: David Munia Musomi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 445 of 2005
- Procedural Posture
- Civil Suit / Formal Proof After Interlocutory Judgment
- Outcome
- plaintiff's suit dismissed
- Legal Topics
- Ownership Dispute, Government Land Allocation, Invalid Sale Agreement, Letters of Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mutisya Mutua
Plaintiff
John Irungu Musomi
Defendant
David Munia Musomi
Defendant
Procedural Posture
Civil Suit / Formal Proof After Interlocutory Judgment
Legal Issues
- 1 Whether the plaintiff lawfully acquired ownership of Plot No.1892 at Makima Sub-location, Mbeere District.
- 2 Whether the defendants unlawfully invaded and deprived the plaintiff of possession of the suit land.
- 3 Whether the sale agreement relied upon by the plaintiff is valid and enforceable under Kenyan law.
Ratio Decidendi
The court found that the plaintiff failed to prove lawful ownership of the suit land. The letter of allotment produced was in the name of the deceased Paul Ndeto, and the land, being government land, was not subject to sale. Any purported sale agreement was therefore null and void. Furthermore, the plaintiff did not obtain letters of administration to deal with the estate of the late Paul Ndeto, making any transaction invalid. The defendants, as sons of the original allottee and residents on the land, had a superior right to possession. The plaintiff failed to formally prove his claim, and the suit was dismissed.
Court Disposition
plaintiff's suit dismissed
Orders
- The plaintiff's suit is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 445 of 2005
PETER MUTISYA MUTUA………………………………………...….PLAINTIFF
VERSUS
JOHN IRUNGU MUSOMI…………………………………..…….1ST DEFENDANT
DAVID MUNIA MUSOMI………………………………………2ND DEFENDANT
JUDGMENT
This claim arises out of a dispute over the ownership of that parcel of land known as Plot No.1892 situate at Makima Sub-location Mbeere District. In his plaint the plaintiff avers that he is the owner of the suit land and that the defendants have invaded the suit land and deprived him of its use and peaceful possession.
The defendants were served with summons but failed to enter appearance and on application, the plaintiff obtained interlocutory judgment. The matter came before me for formal proof.
The plaintiff in this evidence told the court that the suit land belonged to one PAUL NDETO who is now deceased. He produced the letter of allotment for the suit premises being Plot No. 1892 in Mwea Scheme Embu District. The letter bears the name of Paul Ndeto as the allottee. The said Paul Ndeto has since died and that he purchased the suit land from the family of the late Ndeto but he did not have the original Sale Agreement.
On 15th October 2004 the two defendants JOHN IRUNGU MUSOMI and DAVID MUWA MUSOMI invaded the suit land and drove him out.
The letter of allotment produced by the plaintiff which as said bears the name of Paul Ndeto indicate that the suit land is Government land on lease whose usage is subject to the basic land usage Rules as contained under Section 48(1) of the Agriculture Act Cap 318. The same is not subject for sale. The allottee who is not willing to use it can only surrender the same to the Government for reallocation. Therefore any purported Sale Agreement is null and void and not capable of being enforced.
Secondly the said alleged intruder are sons of the late Paul Ndeto who were residing on the suit land so that they have a superior right to the suit land to that of the plaintiff. Thirdly the late Ndeto did not sell the suit land to the plaintiff nor was he given vacant possession. Even assuming the suit land was available for sale since the allottee had died the purported seller had to obtain letters of administration to enable him to deal with the estate of the late Paul Ndeto. Although this suit came for hearing by way of formal proof the plaintiff has failed to formally proof his claim and the same must fail.
The plaintiff’s suit is dismissed with no order as to costs.
Dated and delivered at Nairobi this 23rd day of March 2006.
J.L.A. OSIEMO
JUDGE