[2004] KEHC 2077 (KLR)
The court found that the plaintiff had entered into a valid sale agreement with the 1st defendant, paid the full purchase price, obtained Land Control Board consent, and was put in occupation of the land. Despite these facts, the 1st defendant transferred the entire land to the 2nd defendant, who was aware of the...
Source-derived case information.
- Citation
- [2004] KEHC 2077 (KLR)
- Parties
- Plaintiff: Risanile Atieno Ochuka; Defendant: Musa Dama Onoka; Defendant: Evelyne Atieno Oturi; Defendant: D.O. Dulo, Land Registrar Migori/Kuria
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 77 of 2003
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- K Bauni
- Legal Topics
- Land Sale Agreements, Specific Performance, Rectification of Register, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Risanile Atieno Ochuka
Plaintiff
Musa Dama Onoka
Defendant
Evelyne Atieno Oturi
Defendant
D.O. Dulo, Land Registrar Migori/Kuria
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to an injunction restraining the 2nd defendant from interfering with her portion of land.
- 2 Whether the plaintiff is entitled to transfer and registration of 0.40 Ha. from land parcel North Sakwa Kamasoga/1830.
- 3 Whether the registration in favour of the 2nd defendant should be rectified to reflect the plaintiff's interest.
Ratio Decidendi
The court found that the plaintiff had entered into a valid sale agreement with the 1st defendant, paid the full purchase price, obtained Land Control Board consent, and was put in occupation of the land. Despite these facts, the 1st defendant transferred the entire land to the 2nd defendant, who was aware of the plaintiff's occupation. The court held that the plaintiff's equitable interest in the land should be protected and that the register should be rectified to reflect her interest. The court relied on the principle that a purchaser in occupation with consent and full payment is entitled to specific performance and rectification of the register, as established in Chauhan v. Omagwa...
Court Disposition
judgment for the plaintiff
Orders
- An injunction is granted restraining the 2nd defendant from interfering with the plaintiff's portion of 0.40 Ha. of land.
- The defendants are ordered to transfer 0.40 Ha. from land parcel North Sakwa Kamasoga/1830 to the plaintiff.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE NO.77 OF 2003
RISANILE ATIENO OCHUKA ……………………………………….. PLAINTIFF
VER?SUS
MUSA DAMA ONOKA )
EVELYNE ATIENO OTURI )………………….. DEFENDANTS
D.O. DULO LAND REGISTRAR MIGORI/KURIA)
JUDGMENT:
The plaintiff’s plaint is for an injunction against the 2nd defendant from interfering with plaintiff’s
portion of land measuring 0. 40 Ha. and for an order for the defendants to transfer a portion of 0. 40 Ha.
from land parcel No. North Sakwa Kamasoga/1830. She also prays for costs.
The defendants did not file a defence within the stipulated time and interlocutory judgment was entered
on 15th September 2003.
In her evidence the plaintiff (PW1) told court that in 1985 she entered into a sale agreement with the 1st
defendant who was to sell to her a portion of 2 acres (0. 40 Ha.) of his land. The purchase price then was
shs.6000/= which she paid in full. 1st defendant put her in occupation of the land, and she built a house
there. They attended Land Control Board a consent was given to sub-divide the land.
The land was subdivided by M/s Olweny & Associates and the documents taken to Land Registrar Migori
for transfer and registration. The whole land was however registered in the name of the
1st defendant. The 1st defendant was to transfer a portion to the plaintiff. He however sold and transferred the whole land to
the 2nd defendant.
Plaintiff called one JOHN OWOUR ANUNDO as a witness (PW2). He testified that he was a witness
when the 1st defendant sold apportion of the land to the plaintiff. He signed the sale agreement.
I have considered the evidence. The 2nd defendant is now the registered owner of the whole land in
question. However the plaintiff has clearly shown that she had purchased a portion of the land from the 1st
defendant. She told court that she went into occupation of her portion and built a house there. No doubt
the 2nd defendant knew that the plaintiff was in occupation when she bought the land. The plaintiff had
already lodged her documents with the 3rd defendant.
Having been in occupation of the land for the last 18 years the court can order rectification of the
registration to the 2nd defendant. This was so held in the case of CHAUHAN –VS.- OMAGWA (1985)
KLR 656 which was cited to issue.
I am therefore satisfied that plaintiff has proved her case on balance of probabilities and I enter
judgment in her favour as prayed.
KABURU BAUNI
JUDGE
14/6/04
Signed, dated and delivered on 14th June 2004. Mr. Anyona for plaintiff.
KABURU BAUNI
JUDGE