ERASTUS MUNENE WANJOHI v PETER KARANI KABIRU,DANSON MURIUKI KIHARA & (THE ATTORNEY GENERAL for & on behalf of LAND REGISTRAR KIRINYAGA [2011] KEHC 2089 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

CIVIL CASE NO. 89 OF 2010

ERASTUS MUNENE WANJOHI ………………………. PLAINITFF

VERSUS

PETER KARANI KABIRU …………………………1STDEFENDANT

DANSON MURIUKI KIHARA …………………… 2ND DEFENDANT

(THE ATTORNEY GENERAL for & on behalf of

LAND REGISTRAR KIRINYAGA ………….………3RD DEFENDANT

J U D G M E N T

The 1st and 2nd Defendants were served with summons but did not enter appearance or file any defence to the claim. The evidence of the Plaintiff was therefore not controverted.

The Plaintiff testified that by the sale agreement dated 19th July 2002 (exhibit 1) he bought land parcel No. KABARE/GACHIGI/1033 measuring about 0. 4875 Ha. from one MICHAEL MURINGI KIBUI for kshs.320,000/= which he paid.   The suit land was subsequently transferred to him and he obtained the title deed (exhibit 2). It was issued on 27th August 2003. He began to utilize the suit land. In 2005 some people came to the land saying they wanted to buy it from the 1st Defendant. This alarmed the Plaintiff who went to the lands office and found that the suit land was now in the name of the 1st Defendant. He found a Gazette Notice No.852 of 11th February 2005 (exhibit 3) indicating that the High Court in Nairobi inCivil Case No. 295 of 2002had issued a decree to transfer the suit land from him to the 1st Defendant. The Notice indicated that he had refused to produce the original title deed and the land registrar Kirinyaga District was going to dispense with the production of the title deed. The Plaintiff was unaware of either the Notice or the suit. He went to High Court in Nairobi and obtained a copy of the Plaint (exhibit 4) and a copy of the decree (exhibit 5) in the suit. They referred to different parties and claim.

The Plaintiff subsequently filed the present suit seeking a declaration that he was the lawful owner of the suit land. He sought rectification of the register to cancel the entries in favour of the Defendants and also the cancellation of the title deed issued to the 1st Defendant and subsequently to the 2nd Defendant. Lastly, he asked for a permanent injunction. What had happened was that 1st Defendant had subsequently transferred the suit land to the 2nd Defendant. The Plaintiff had not dealt with either of them over the suit land, or at all.

I accept the evidence of the Plaintiff and find that the suit land was fraudulently transferred to the 1st Defendant and to the 2nd Defendant. The suit land legally and rightly belongs to the Plaintiff. The Land Registrar, Kirinyaga is directed to rectify the register in regard to the suit land by canceling all entries relating to the 1st and 2nd Defendants and to reinstate the Plaintiff as the registered proprietor. There shall be permanent injunction restraining the Defendants from dealing with the suit land in any manner. The two Defendants will pay the costs of this case.

DATED, SIGNED AND DELIVERED AT EMBU THIS 28TH DAY OF JULY 2011

A.O. MUCHELULE

JUDGE