[2013] KEHC 4804 (KLR)

REPUBLIC OF KENYA

High Court at Bungoma

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STEPHEN MUSUNGU KOKONYA ………….....…….……..…….... PLAINTIFF

VERSUS

HENRY WAKABILI BARASA

NICODEMUS WAKABILI KUNINIKA

BENSON KHAEMBA MBAISI

CATHERINE NABANGALA MBAISI............................................DEFENDANTS

JUDGMENT

The plaintiff filed his claim seeking orders for cancellation of land title deed comprised in East Bukusu/N. Kanduyi 4744 and revert it to the previous registered owner and/or trustee Nicodemus Wakabili Kuninika – the 2nd defendant. His alternative prayer is for this court to make an order authorizing the Executive Officer of court to sign all relevant forms transferring 0. 3 ha from title No. East Bukusu/N. Kanduyi 4744 to him. He also prayed for costs of the suit.

The 2nd defendant filed a statement of admission on 25th May 2011 admitting all the contents of the plaintiffs claim. He also entered/filed appearance. There was no appearance for the 1st, 3rd and 4th defendants. An interlocutory judgment was entered in favor of the plaintiff as against the 1st, 3rd & 4th defendants on 25th July 2011 and endorsed by the Deputy Registrar.

The plaintiff therefore set down his suit to hearing on a formal proof. There are two affidavits of service filed in court. One dated 22nd November 2010 filed by Winslaus Mureya who served the 4th and 3rd defendant in Nairobi at their place of work and the second dated 3rd May 2011 served in the 1st defendant.

During the hearing, the plaintiff adduced evidence that he bought the portion measuring 0. 3 ha of land from title E. Bukusu/N. Kanduyi/4744 from the 1st defendant and witnessed by the 2nd defendant. The 2nd defendant was/is the administrator of the land belonging to the Wakabili’s.

He produced a sale agreement in support of his case. He states that he began the process of sub-division and obtained consent to sub-divide produced as exhibit 2 and drawn mutation forms exhibit 3. The 2nd defendant also signed transfer forms in their favour. When he visited the lands office, he discovered the land had been transferred to the names of the 3rd & 4th defendants. The plaintiff produced a search marked as exhibit 4 to confirm this position. His further evidence is that he tried to persuade the 3rd & 4th defendant to surrender the title to enable him get his title but they failed thus necessitating this suit. His payer therefore is for cancellation of the title to enable him get his portion he had bought.

The sale agreement produced as exhibit 1 was entered into on 7th May 2008 while the 3rd & 4th defendants got registered as proprietors on 2nd February 2009.

Consent to subdivide is also dated 13th January 2009 prior to the 3rd & 4th defendants being registered. In the case of Job Muriithi Waweru vs. Patrick Mbatia (appl. No. 32 of 2007 high court at Nyeri) e KLR, Justice Makhandia quoted section 159 and 143 of the Registered Land Act (repealed). In section 143 which is equivalent to Sec. 80 of the Land Registration Act he held that the title cannot be cancelled/rectified for so long as the registered proprietor was not party to the omission, fraud or mistake in consequence of which the rectification is sought. In that case, the respondent did not cause the omission, fraud or mistake or subsequently contributed to it by his act, neglect or default. In paragraph 6 of the plaint, the plaintiff pleaded that the land transfer was done secretly and discreetly in collaboration and/or connivance of the defendants jointly and severally. It is clear to this court that order the 4th & 3rd defendants be cancelled and the register be rectified to read the 2nd defendant’s name to enable the plaintiff get a title to a portion of the suit land he bought. The defendants are thus be served with this decree. If 30 days service of the order upon the 3rd & 4th defendants they fail to surrender their title for cancellation, the Registrar is hereby ordered to cancel it and rectify register in respect of E. Bukusu/N. Kanduyi/4744 to read the names of Nickodemus Wakabili Kuninika. Thereafter admission filed by the 2nd defendant confirms the statement in paragraph 6 of the plaint. The 3rd & 4th defendants in spite of being served with the pleadings chose not to defend it. At the time of transfer of title to 3rd & 4th defendants, the 2nd defendant knew he was doing a mistake. He had already obtained consent to sub-divide the land and signed the transfer in favour of the plaintiff. This court finds the 2nd defendant guilty of fraud/mistake in transferring the land to 3rd & 4th defendant and he has admitted as much. I do allow the plaintiff to proceed and register the mutations. If he fails to obtain signature of the 2nd defendant where required, the Executive Officer shall then sign those documents that will facilitate him attain the title for portion of the suit land measuring 0. 3 ha.

I make no order as to costs as the suit was undefended.

JUDGMENT DATED, SIGNED, READ and DELIVERED in open court this 12th day of March 2013.

A.OMOLLO

JUDGE