[2019] KEELC 1998 (KLR)
The court found that the Plaintiff had produced sufficient documentary evidence, including conveyance and indenture documents, rates demand notes, and official land registry searches, establishing him as the registered proprietor of the suit properties. The 1st Defendant's records erroneously reflecting the 2nd...
Source-derived case information.
- Citation
- [2019] KEELC 1998 (KLR)
- Parties
- Plaintiff: Timothy Mwangi; Defendant: City County of Nairobi; Defendant: Kennedy Wainaina Ngenga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 981 of 2012
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's case allowed. Declarations granted. Costs awarded to Plaintiff against 1st Defendant.
- Legal Topics
- Land Ownership, Rectification of Records, Rates Demands, Title Registration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Mwangi
Plaintiff
City County of Nairobi
Defendant
Kennedy Wainaina Ngenga
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful owner of plot number 258 Eastleigh Section 7 and plot number 120 Section 1, Nairobi.
- 2 Whether the 1st Defendant should rectify its records to reflect the Plaintiff as the proprietor of the suit properties.
- 3 Whether the 2nd Defendant has any lawful claim to the suit properties.
Ratio Decidendi
The court found that the Plaintiff had produced sufficient documentary evidence, including conveyance and indenture documents, rates demand notes, and official land registry searches, establishing him as the registered proprietor of the suit properties. The 1st Defendant's records erroneously reflecting the 2nd Defendant as owner were not supported by any evidence of transfer or sale. The absence of any defence or contrary evidence from the Defendants further strengthened the Plaintiff's case. The court concluded that the Plaintiff had proved his case on a balance of probabilities and was entitled to the declarations sought and rectification of the 1st Defendant's records.
Court Disposition
Plaintiff's case allowed. Declarations granted. Costs awarded to Plaintiff against 1st Defendant.
Orders
- A declaration is issued that the Plaintiff is the lawful owner of plot number 258 Eastleigh Section 7 (L.R. No. 36/VII/258) and plot number 120 Section 1 (L.R. No. 367/AXI/1913).
- The 1st Defendant is ordered to rectify its records to reflect the Plaintiff as the proprietor of the two parcels of land.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT NAIROBI
ELC CASE NO. 981 OF 2012
TIMOTHY MWANGI....................................................PLAINTIFF
VERSUS
CITY COUNTY OF NAIROBI..........................1ST DEFENDANT
KENNEDY WAINAINA NGENGA..................2ND DEFENDANT
JUDGEMENT
1. Following the discovery by the Plaintiff in January 2011 that the 2nd Defendant was reflected in the records of the 1st Defendant as the owner of his properties known as plot number 258 Eastleigh Section 7 being land reference number 36/VII/258 (original number 63/6) and plot number 120 of Section 1 being land reference number 367/AXI/1913 which he acquired in 1970 and 1967 respectively, the Plaintiff filed this suit after the 1st Defendant failed to correct its rates payment records to reflect the Plaintiff as the owner of the two parcels of land. The Plaintiff seeks declarations that these two plots on which he has erected rental houses belong to him and that the 1st Defendant should rectify its records to reflect his name as the proprietor.
2. Summons to enter appearance expired before they were served on the 2nd Defendant. The Plaintiff made an application to extend the validity of summons which was allowed on 7/2/2019. The 1st Defendant appointed W. S. Ogola to act for him on 6/2/2013. Musyoki Mogaka and Company Advocates filed a notice of change of advocates on 29/8/2014. Neither the 1st nor the 2nd Defendant filed a defence in this case.
3. The Plaintiff gave evidence. He produced copies of the conveyance dated 17/12/1944 together with the indenture made on 3/7/1967 in respect of plot number 120 Eastleigh Section One showing the Plaintiff purchased this piece of land in 1967. He also produced the indenture in respect of land reference number 36/VII/258 dated 15/10/1970 as evidence of his ownership of the land. The Plaintiff mortgaged L.R. No. 36/1/120 to Barclays Bank of Kenya on 12/5/1999.
4. The rates demand notes issued by the 1st Defendant in 2007 and 2010 were addressed to the Plaintiff. However, the rates demand dated 27/4/2011, May 2014, and 21/4/2017 reflected the 2nd Defendant as the owner of land reference number 36/1/120 yet the Plaintiff claims he never sold this parcel of land. The rates demand notes for L.R. No. 36/VII/258 dated 27/4/2011, 12/5/2014 and 21/4/2017 also reflect the 2nd Defendant as the owner of land.
5. The Plaintiff produced a copy of his advocates’ letter dated 8/7/2011 pointing out the anomaly to the 1st Defendant’s Chief Valuer regarding the parallel rates demand notices over the same pieces of land. The Chief Valuer requested the Plaintiff in his letter of 19/5/2011 to give details of the registered owners after lodging a complaint in the 1st Defendant’s valuation section. The official searches done on L.R. No. 36/VII/258 on 16/6/2011 and on L.R. No. 36/1/120 on 15/6/2011 confirmed that the Plaintiff was still registered as proprietor of the two parcels of land. The Plaintiff also exhibited the decision made in David Mutisya Mukumbi v Kennedy Wainaina Njenga [2014] eKLRchallenging the registration of the 2nd Defendant as proprietor of L.R. No. 36/VII/260, which is also situated in Eastleigh, Nairobi. The court held that the 1st Defendant’s predecessor, the City Council of Nairobi had no interest to transfer in the suit land.
6. The court has considered the Plaintiff’s written submissions together with the evidence adduced and is satisfied that the Plaintiff has proved his case on a balance of probabilities.
7. The court grants prayers (a), (b) and (c) of the plaint dated 11/12/2012. The Plaintiff is awarded the costs of the suit to be borne by the 1st Defendant.
Dated and delivered at Nairobi this 23rd day of July 2019
K.BOR
JUDGE
In the presence of: -
Mr. J. Mituga for the Plaintiff
Mr. V. Owuor- Court Assistant
No appearance for the Defendants