[2018] KEELC 1790 (KLR)
The court found that the plaintiff had entered into a valid sale agreement with the defendant for a portion of land, paid the agreed consideration, and completed all necessary legal and administrative steps, including obtaining land board consent and survey for subdivision. The defendant, despite being served,...
Source-derived case information.
- Citation
- [2018] KEELC 1790 (KLR)
- Parties
- Plaintiff: Stanley Kimanyano Kikuyu; Defendant: Zibeon Makonge
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 317 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- NA Matheka
- Legal Topics
- Land Sale Agreement, Specific Performance, Title Transfer, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Kimanyano Kikuyu
Plaintiff
Zibeon Makonge
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a declaration as a bona fide beneficiary of 0.03 Ha from L.R. No. S/Maragoli/Lugovo/166.
- 2 Whether the defendant's refusal to surrender the title deed and effect transfer is unlawful.
Ratio Decidendi
The court found that the plaintiff had entered into a valid sale agreement with the defendant for a portion of land, paid the agreed consideration, and completed all necessary legal and administrative steps, including obtaining land board consent and survey for subdivision. The defendant, despite being served, failed to appear or contest the proceedings. The plaintiff's evidence, including the sale agreement, consent application, mutation form, and search certificate, was unchallenged. On a balance of probabilities, the court held that the plaintiff had proved his entitlement to the 0.03 Ha portion and was therefore entitled to a declaration as a bona fide beneficiary and to costs.
Court Disposition
judgment for the plaintiff
Orders
- A declaration that the plaintiff is a bona fide beneficiary of a portion of land measuring 0.03 Ha from L.R. No. S/Maragoli/Lugovo/166.
- Costs to the plaintiff.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAKAMEGA
ELC CASE NO. 317 OF 2017
STANLEY KIMANYANO KIKUYU............................PLAINTIFF
VERSUS
ZIBEON MAKONGE.................................................DEFENDANT
JUDGEMENT
Briefly this case is that, on or about 28th October, 2005, the plaintiff entered into a land sale agreement with the defendant for sale of a portion of the L.R. No. S/Maragoli/Lugovo/166 measuring 0. 03 Ha at a consideration of Ksh. 160,000/= (one hundred and sixty thousand only). That plaintiff states upon his payment of Ksh. 160,000/= land board forms were filled and he attended land board together with the defendant and thereafter survey process was carried out where sub-divisions of L.R. No. S/Maragoli/Lugovo/166 into L.R. No. S/Maragoli/Lugovo/1802 and 1803. That L.R. No. S/Maragoli/Lugovo/1802 measuring 1. 28 ha belongs to the defendant and L.R. No. S/Maragoli/Lugovo/1803 measuring 0. 03 Ha belongs to the plaintiff.The plaintiff states that the defendant blatantly/deliberately refused to surrender the old title Deed at the lands office in order to issue him with his title which is L.R. No. S/Maragoli/Lugovo/1803. The plaintiff further avers that the defendant is the registered as the owner of the remaining L.R. No. S/Maragoli/Lugovo/166 and he does not see any reason for denying him his share of land.The plaintiff states that the defendant’s action ab initio frustrate his efforts to demand his 0. 03 ha of land from the L.R. No. S/Maragoli/Lugovo/166. That on or about the year 2008, the plaintiff avers that he filed a civil suit at the Senior principal Magistrate’s court at Hamisi whereby the matter has pending for nine years since the defendant never appeared to court and is claiming that he has lost his site.That the plaintiff that was directed by the Resident Magistrate Hamisi Law Court that the law Court has no power to determine this matter and therefore he should take the matter to the High Court of Kenya at Kakamega which has jurisdiction to determine this matter.The plaintiff further states that the defendant hitherto refused to effect transfer of his 0. 03 Ha of land from L.R No. S/Maragoli/Lugovo/166. The plaintiff’s prayer to court against, the defendant is for a declaration that he is a bonafide beneficiary of 0. 03 Ha of land from the L.R. No. S/Maragoli/Lugovo/166. The plaintiff prays for judgment to be entered against the defendant for.
1. A declaration that the plaintiff is a bonafide beneficiary of a portion of land measuring 0. 03 Ha from the L.P. No. S/Maragoli/Lugovo/166.
2. Costs.
3. Relief/Remedy this Hon. Court shall deem just and expedient to grant.
This court has considered the plaintiff’s case and submissions herein. Despite the defendant being served he never attended court or file and documents in opposition. On 28th October, 2005, the plaintiff entered into a land sale agreement with the defendant for sale of a portion of the L.R. No. S/Maragoli/Lugovo/166 measuring 0. 03 Ha at a consideration of Ksh. 160,000/= (one hundred and sixty thousand only). That plaintiff states upon his payment of Ksh. 160,000/= land board forms were filled and he attended land board together with the defendant and thereafter survey process was carried out where sub-divisions of L.R. No. S/Maragoli/Lugovo/166 into L.R. No. S/Maragoli/Lugovo/1802 and 1803. That L.R. No. S/Maragoli/Lugovo/1802 measuring 1. 28 ha belongs to the defendant and L.R. No. S/Maragoli/Lugovo/1803 measuring 0. 03 Ha belongs to the plaintiff. The plaintiff has produced the sale agreement, application for consent, mutation form, and search certificate as exhibits. His evidence has not been challenged. I find that the plaintiff has proved his case on a balance of probabilities and I grant the following orders;
1. A declaration that the plaintiff is a bonafide beneficiary of a portion of land measuring 0. 03 Ha from the L.P. No. S/Maragoli/Lugovo/166.
2. Costs to the plaintiff.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 20TH DAY OF SEPTEMBER 2018.
N.A. MATHEKA
JUDGE