[2006] KEHC 59 (KLR)
The court found that the plaintiffs had proved, on a balance of probabilities, that the defendant fraudulently caused the registration of parcel No. WANJARE/BOKEIRE/3597 in his name without the consent of the 1st plaintiff. There was no evidence of sale to the defendant, and the sale agreements produced confirmed...
Source-derived case information.
- Citation
- [2006] KEHC 59 (KLR)
- Parties
- Plaintiff: Samuel Nyakanga Areri; Plaintiff: Amos Ngoge; Defendant: Francis Omondi Gwako; Defendant: Nkuru Gwako
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 134 of 2003
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Judgment for the plaintiffs.
- Judges
- K Bauni
- Legal Topics
- Fraudulent Land Transfer, Land Registration, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Nyakanga Areri
Plaintiff
Amos Ngoge
Plaintiff
Francis Omondi Gwako
Defendant
Nkuru Gwako
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the registration of land parcel No. WANJARE/BOKEIRE/3597 in the defendant's name was fraudulent.
- 2 Whether the land should be registered in the name of the 2nd plaintiff.
- 3 Whether the plaintiffs are entitled to cancellation of the defendant's registration and costs.
Ratio Decidendi
The court found that the plaintiffs had proved, on a balance of probabilities, that the defendant fraudulently caused the registration of parcel No. WANJARE/BOKEIRE/3597 in his name without the consent of the 1st plaintiff. There was no evidence of sale to the defendant, and the sale agreements produced confirmed the transaction was between the 1st and 2nd plaintiffs. The defendant's failure to comply with discovery orders and his lack of testimony further supported the plaintiffs' case. The court concluded that the registration was obtained through fraud and ordered cancellation of the defendant's registration, directing that the land be registered in the name of the 2nd plaintiff.
Court Disposition
Judgment for the plaintiffs.
Orders
- The Land Registrar is ordered to cancel the registration of parcel No. WANJARE/BOKEIRE/3597 in the name of the defendant and register it in the name of the 2nd plaintiff, Amos Ngoge.
- Plaintiffs are awarded costs of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT KISII
CIVIL CASE 134 OF 2003
SAMUEL NYAKANGA ARERI ……….……….. PLAINTIFF
VERSUS
1. FRANCIS OMONDI GWAKO )
2. NKURU GWAKO ) ……………… DEFENDANTS
JUDGMENT
The two Plaintiffs sued the defendant seeking for an order to cancel registration of land No.WANJARE/BOKEIRE/3597 and the same to be registered in the name of the 2nd Plaintiff.
The defendant filed a defence denying the claim. He however failed to do discovery and an application was made to have him do so.
The court on 26th April 2005 ordered the defendant to do discoveries within 30 days and in default the judgment to stand struck out. The matter proceeded for formal proof.
PW1 PETER NYAKWAYE the first plaintiff told court that he owed L.R. NO. WANJARE/BOKEIRE/2834. He later subdivided it into 5 portions. The resultant portions were registered as L.R.WANJARE/BOKEIRE/3595-3598. He sold plot No.3597 to the second plaintiff. The defendant was one of the witnesses to their agreement.
However before he could transfer it to the 2nd plaintiff, the defendant fraudulently caused it to be registered in his name. He said at one time defendant took him to the land Board cheating him he will assist him to transfer the land to the 2nd defendant only to find later that he had the land transferred to himself. He said he never sold any land to the defendant.
The 2nd plaintiff confirmed that he bought the piece of land from the 1st Plaintiff. He went into occupation of the same. He now lives there with his family.
As I said the defence was struck out and the defendant did not testify.
The evidence of PW1 & 2 is very candid. It is clear that PW1 sold the land to PW2 and not to the defendant. The 1st plaintiff produced the sale agreements. Defendant was one of the witnesses at one time.
There was no evidence of sale to the defendant. In fact even in his defence which was struck out he did not state that he bought the suit land.
The land therefore was registered in his name without the consent of1st plaintiff. It must have been registered through fraud.
I therefore find that plaintiffs have proved their case on a balance of probabilities and enter judgment in their favour.
I order the Land Registrar to cancel the registration of parcel No.Wanjare Bokeire/3597 which is in the name of the defendant and register the same in the names of 2nd plaintiff AMOS NGOGE.
Plaintiffs will also have costs of the suit.
Dated 19th October 2006
KABURU BAUNI
JUDGE
cc. Mobisa
N/A for Plaintiff
N/A for Defendant