Charles Mutuku Musomba v Rhoda Katuku [2018] KEELC 4305 (KLR)

REPUBLIC OF KENYA

IN THE  ENVIRONMENT  AND LAND  COURT

AT MAKUENI

ELC CASE NO. 38 OF 2017

CHARLES MUTUKU MUSOMBA......................................PLAINTIFF

VERSUS

RHODA KATUKU.............................................................DEFENDANT

JUDGEMENT

1. The plaintiff  is a farmer and a resident of Enzai  in Makueni County.  He has sued the defendant  for acquiring title deed for plot number 1245 which plot the plaintiff occupies.

2. By his plaint dated 13th March, 2017 and filed in court on the 17th March, 2017 the plaintiff prays  for  judgement  against the defendant for;

a. An order for  cancellation  for  certificate of title  for land parcel no. 1245 at Maiani land  adjudication section and be registered in the names of the  plaintiff.

b. Costs of this suit.

3. On the 13th  February, 2017  the defendant was served with summons to enter appearance  and to file her defence as can be seen from the affidavit of service dated 2nd  May, 2017.  She neither entered  appearance  nor did she file her defence resulting in the matter proceeding as undefended suit.

4. During the hearing of the plaintiff’s case  on the 19th September, 2017, he told the court  that he had a land dispute with the defendant’s husband in Kilungu District Court vide  case number LC 72/78.  He said  that the District Court  in its judgement  fixed  the boundary between him and Mathembo Mukuva and Kamolo Masai.  The plaintiff produced  the judgement in question  as PEX no 3.  He said that pursuant   to the court’s  judgement, the adjudication officers  visited the ground where they allocated the disputed two parcel numbers to him. The plaintiff says he is in possession of the two plots which are  1245 and 1726.  He revealed that he was  born in 1940 in the said parcel number  1245. He went on to say that he lodged his claim with the adjudication committee in 1989. He produced the determination of the  committee as PEXno. 3 and pointed out the committee  visited the suit land and planted sisal plants after determining that plot numbers 1245 and 1726 were his.  He said that when he visited the land office in Makueni, he learnt that the defendant had acquired title deed for plot number 1245.  He added that the lands officers advised him to sue the defendant and hence this suit after his advocate wrote a demand letter (PEX no.1) to her.

5. Mr. Mwema for the plaintiff in his submissions told the court that this is a declaratory suit and that this court has jurisdiction to issue declaratory orders as is envisaged in section 7(b) of the Environment  and Land  Court Act.

6. The counsel relies on the persuasive case of in pyx granite Co. Ltd Vs Ministry of  Housing  & Local Government (1958) 1 OB 554  which authority the counsel never supplied to the court.

7. The counsel urged  the court to declare the plaintiff the lawful owner of parcel number Makueni/Maiani/1245 on the basis  of uncontroverted evidence.

8. I agree with the counsel that this court has jurisdiction to issue declaratory orders.  I have  looked at the plaint and I see  no prayer for  declaratory order save that the plaintiff seeks to have title deed issue to the defendant  in respective of land parcel number 1245 be cancelled.  Be that as it may,  the evidence by  the  plaintiff  is uncontroverted as was  submitted by the plaintiff’s counsel.  The evidence on record is that the judgement in Kilungu District Magistrate’s Court case Number L 72/78 and the proceedings of the Land Adjudication Committee held on 5th July, 1988 were never overturned on appeal. The two decisions were in favour of the plaintiff  in respect of plot number 1245.  That being  the case, I hold  that the defendant  was not justified to acquire  title deed  on 5th November, 2002 in her  name as can be  seen from the certificates of official search annexed to the plaintiff’s counsel’s submissions and which document ought to  have  been produced in evidence by the plaintiff   himself. The title deed must be cancelled and/or revoked. I am satisfied that the plaintiff, has on a balance of probabilities, a cause of action against the defendant. In the circumstances, I hereby proceed to enter judgement for him and against the defendant in terms of prayers (a) and (b) of the plaint.

Signed, dated and delivered at Makueni on this 21st Day of February, 2018

MBOGO CG

JUDGE

In the presence of;

Mr.  Kwemboi Court Assistant

No appearance for the plaintiff

Plaintiff present