Esther Mutile Mutiso v Rose Mueni Schultz & Machakos District Land Registrar [2017] KEELC 1725 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC.  CASE NO.  272 OF 2012

ESTHER MUTILE MUTISO ...............................................PLAINTIFF

VERSUS

ROSE MUENI SCHULTZ ........................................1ST DEFENDANT

MACHAKOS DISTRICT LAND REGISTRAR .......2ND DEFENDANT

JUDGMENT

1. In the Plaint dated 25th July, 2012, the Plaintiff has averred that between 1976 and 2003, her deceased husband was the registered proprietor of parcel of land number Mbiuni/Mbuini/257 (the suit land); that the land is fully occupied by the Plaintiff and that on 23rd June, 2011, she received a demand letter from the Defendant alleging that she had entered the suit land unlawfully.

2. The Plaintiff has averred that when she conducted an official search, she discovered that the suit land had been transferred to the Defendant in the year 2003, six (6) years after the death of her husband.

3. The Plaintiff is seeking for an order cancelling the 1st Defendant’s title and directing the 2nd Defendant to rectify the register to reflect the name of her deceased husband.

4. Although the 1st Defendant was served with Summons to Enter Appearance, she neither entered appearance nor filed a Defence.

5. The Plaintiff, PW1, informed the court that her husband was the registered proprietor of the suit land; that she is the administrator of the Estate of her late husband and that she is the one who is occupying the suit land with her family.

6. The Plaintiff produced in evidence the original Certificate of Death of the late Joseph Mutiso Ngui which shows that he died on 13th April, 1997.

7. Although her late husband never sold the suit land, PW1, produced in evidence the certified copy of the register showing that the land was transferred to the 1st Defendant on 22nd December, 2003.

8. The uncontroverted evidence before me shows that the suit land was fraudulently registered in favour of the 1st Defendant on 22nd December, 2003.

9. In the circumstances, the said transfer to the 1st Defendant is null and void.

10. For those reasons, I allow the Plaintiff’s Plaint dated 25th July, 2012 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2017.

O. A. ANGOTE

JUDGE