[2017] KEHC 5737 (KLR)
The court found that the plaintiffs had established, on a balance of probabilities, that they were the rightful registered owners of the suit land and that the defendant's registration was fraudulent. The plaintiffs produced the original title deed and a search certificate confirming their ownership. The defendant,...
Source-derived case information.
- Citation
- [2017] KEHC 5737 (KLR)
- Parties
- Plaintiff: Solomon Wepukhulu Wekesa; Plaintiff: Saulo Walukana Wekesa; Defendant: Shem Nalianya Sibitali
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 52 of 2014
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiffs' suit allowed with costs; defendant's registration as owner declared null and void; registration cancelled.
- Judges
- SN Mukunya
- Legal Topics
- Fraudulent Land Transfer, Title Cancellation, Land Registration, Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Solomon Wepukhulu Wekesa
Plaintiff
Saulo Walukana Wekesa
Plaintiff
Shem Nalianya Sibitali
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the registration of the defendant as owner of land parcel Kimilili/Kimilili/1581 was fraudulent and should be cancelled.
- 2 Whether the plaintiffs are entitled to a declaration of ownership and cancellation of the defendant's registration.
Ratio Decidendi
The court found that the plaintiffs had established, on a balance of probabilities, that they were the rightful registered owners of the suit land and that the defendant's registration was fraudulent. The plaintiffs produced the original title deed and a search certificate confirming their ownership. The defendant, having been served, failed to appear or contest the suit. The court was satisfied that the plaintiffs did not transfer the land to the defendant and that the registration in the defendant's name was fraudulent. Accordingly, the court declared the defendant's registration null and void and ordered its cancellation, restoring the plaintiffs as the lawful owners.
Court Disposition
Plaintiffs' suit allowed with costs; defendant's registration as owner declared null and void; registration cancelled.
Orders
- The registration of the defendant as owner of land parcel Kimilili/Kimilili/1581 is declared null and void.
- The registration of the defendant as owner is cancelled.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
ENVIRONMENT AND LAND CASE NO. 52 OF 2014
SOLOMON WEPUKHULU WEKESA.....1ST PLAINTIFF
SAULO WALUKANA WEKESA.............2ND PLAINTIFF
VERSUS
SHEM NALIANYA SIBITALI........................DEFENDANT
JUDGMENT
[1]. The plaintiffs filed this suit and stated that they are the registered owners of land parcel Number Kimilili/Kimilili/1581 and were issued with title deed on the same day. They state that on 18. 12. 13 they applied for official search for the same and discovered to their dismay that the land was registered in the name of the defendant and the defendant is yet to be issued with a title deed. The plaintiffs aver that they did not transfer the land to the defendant. They set out particulars of fraud, forgery and deceit on the part of the defendant. The plaintiffs claim against the defendant is for a declaration that the registration of the defendant as the registered owner of title number Kimilili/Kimilili/1581 reflected on 20. 6.200 be declared null and void and that the registration be cancelled.
[2]. The defendant was fully served. He did not file any appearance and/or any defence. The plaintiffs gave their evidence and narrated how they obtained their joint title. The plaintiffs prayers are not opposed. They produced the original title in their names issued on 8th July 1988, a search certificate dated 18th December, 2013 dully signed by the Land Registrar Bungoma District Land Registry.
I believe the plaintiffs. I grant them their prayers with costs of the suit.
Judgement read in open Court in the presence of Mr. Bw’ Onchiri.
DATED at BUNGOMA this 11thday of May2017.
S. MUKUNYA
JUDGE
In the presence of:
Coram: Hon. S. Mukunya (Judge)
Gladys: Court Assistant
Mr. Bw’ Onchiri for Plaintiff
Defendant never appeared