[2008] KEHC 3601 (KLR)
The court found that the plaintiff was the registered proprietor of parcel No. Ngariama/Thirikwa/2071, having lawfully purchased the land after a court-ordered subdivision. The first defendant's prior title to plot No. 413 was extinguished by the subdivision, and he retained no interest in the suit land. The second...
Source-derived case information.
- Citation
- [2008] KEHC 3601 (KLR)
- Parties
- Plaintiff: Peter Njiru Moses; Defendant: Joseph Gatia Wambugu; Defendant: Muriithi Mwangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 13 of 2003
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiff as prayed in the plaint against both defendants. No order as to costs.
- Legal Topics
- Land Ownership, Title Registration, Eviction, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Njiru Moses
Plaintiff
Joseph Gatia Wambugu
Defendant
Muriithi Mwangi
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful registered proprietor of parcel No. Ngariama/Thirikwa/2071.
- 2 Whether the defendants have any legal right or interest to occupy or cultivate the suit land.
- 3 Whether the plaintiff is entitled to an order of eviction against the second defendant.
Ratio Decidendi
The court found that the plaintiff was the registered proprietor of parcel No. Ngariama/Thirikwa/2071, having lawfully purchased the land after a court-ordered subdivision. The first defendant's prior title to plot No. 413 was extinguished by the subdivision, and he retained no interest in the suit land. The second defendant's occupation was based solely on permission from the first defendant, who had no legal interest to confer, and the second defendant was not registered as proprietor. The pending suit in Nyeri High Court did not involve the plaintiff and did not affect his title. No evidence of fraud or irregularity in the plaintiff's acquisition of title was presented. The court...
Court Disposition
Judgment for the plaintiff as prayed in the plaint against both defendants. No order as to costs.
Orders
- Plaintiff declared the lawful registered proprietor of parcel No. Ngariama/Thirikwa/2071.
- Defendants to vacate and hand over possession of the suit land to the plaintiff.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU Civil Case 13 of 2003
PETER NJIRU MOSES …………………...……………………PLAINTIFF
VERSUS
JOSEPH GATIA WAMBUGU………………………….1ST DEFENDANT
MURIITHI MWANGI……………………………....……..2ND DEFENDANT
JUDGMENT
Peter Njiru Moses the plaintiff in this case is the registered owner of that parcel No. Ngariama/Thirikwa/2071 which he purchased and paid for from Muriuki Wambugu. Before the plaintiff purchased the land the first Defendant had allowed 2nd Defendant to occupy a portion of land and to cultivate a portion of the land that is now comprised in the land registered in plaintiff’s name. The evidence is that the subdivision and registration of parcel No. Ngariama/Thirikwa/2071 was ordered by court. Thereafter the plaintiff purchased the land from registered owner one Muriuki Wambugu who was then registered as proprietor as shown in Paragraph Exhibit 1. The plaintiff was registered on 12. 6.2001. The history of plot No. 413 is shown in plaintiff Exhibit 7. Plot No. 2070 measuring Ha.1. 45 was a subdivision of plot No. 413. Thereafter plot No. 2070 was subdivided into plot No. 2071 & 2072. It is subdivision 2071 that Peter Njiru Moses (Plaintiff) purchased and title issued to him on 13/6/2001.
Therefore it is clear that certificate of title Ngariama/Thirikwa/413 held by first Defendant is not now in use that land was subdivided and 1 ½ acre of that land was purchased by the plaintiff and he was registered as proprietor. The first Defendant states that there is a case in Nyeri High Court but this relates to a dispute between Muriuki Wambugu and Joseph Gatua first Defendant. The plaintiff is not a party in that suit. That case will be decided separately and the outcome will not be in the name of plaintiff herein. The plaintiff also claims for the eviction of second defendant. The second defendant in his evidence said he is on the land as he was permitted by first Defendant to cultivate. He is not registered at all and therefore I find he has no business occupying the plaintiff’s land. The defendants filed a joint statement through advocate Mr. Miana Gacheche who denied the plaintiff’s claim by saying that there is suit pending in Nyeri High Court. At the trial of this case defendants were acting in person. There was allegations of cheating but no evidence was tendered to prove such allegations. However on the side of the plaintiff he was able to show that the transfer was open and through court orders.
I have perused the HCC. Misc.No. 103/2000 at Nyeri. The last action taken was on 20/11/2003. It is not clear what is the present position of those proceedings. The plaintiff cannot be delayed indefinitely in his claims .
Upon considering all aspects of the evidence tendered by both parties, I find that the plaintiff is the registered proprietor of plot No. Ngariama/Thirikwa/2071 (1 ½ acres). While the first Defendant has no interest therein plot no. 413 for which he holds title no longer exists after subdivision. The second defendant only cultivates a small portion of land upon which he has some coffee trees.
In these circumstances, I find the plaintiff’s claim proved and I enter Judgment for plaintiff as prayed in the plaint against both defendants.
No order as to costs is made.
Dated 18/1/2008.
J. N. KHAMINWA
JUDGE
Deputy Registrar to ensure the Nyeri file is returned to Nyeri Registry forthwith.
J. N. KHAMINWA
JUDGE
18/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kenneth
Githinji H/B for Wanjiru
Defendants; Joseph and Muriithi present.
Read in open court.
J. N. KHAMINWA
JUDGE