Fredrick Nzioka Musau v Willy Mutie, Drumvale Farmers Co-operative Society Ltd (In Liquidation) & District Land Registrar Machakos [2017] KEELC 1257 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO. 44 OF 2012

FREDRICK NZIOKA MUSAU.....................................................PLAINTIFF

VERSUS

WILLY MUTIE..................................................................1ST DEFENDANT

DRUMVALE FARMERS CO-OPERATIVE SOCIETY

LTD (IN LIQUIDATION)..................................................2ND DEFENDANT

THE DISTRICT LAND REGISTRAR MACHAKOS......3RD DEFENDANT

JUDGMENT

1. In the Plaint dated 20th February, 2012, the Plaintiff averred that Samson Musau, the deceased, was a registered member of the 2nd Defendant; that the deceased was allocated a parcel of land known as Mavoko Town Block 12/83 by the 2nd Defendant in 1989 and that in the year 2000, the Defendants fraudulently registered the suit land in favour of the 1st Defendant.

2. It is the Plaintiff’s case that it was not until 7th September, 2011 that he discovered that the suit land had been fraudulently registered in favour of the 1st Defendant.

3. The Plaintiff is seeking for a declaration that the deceased is the bona fide owner of the suit land and an order directing that the registration of the 1st Defendant as the proprietor of the suit land was obtained by fraud.

4. In its Defence, the 2nd Defendant admitted that it indeed allocated the deceased the suit land.

5. On his part, the 1st Defendant averred that it acquired the suit land legally and without any fraud, mistake or wrongdoing.

6. The matter proceeded for hearing on 16th May, 2017 when only the Plaintiff testified.  The Defendants did not adduce any evidence.

7. The Plaintiff, PW1, informed the court that he is the personal representative of the Estate of the deceased who died on 22nd June, 1989; that the deceased was a member of the 2nd Defendant and that he was allocated the suit land by the 2nd Defendant in 1989.

8. However, it was the evidence of PW1 that during the collection of the assets of the deceased, they discovered that the suit land had been fraudulently registered in the name of the 1st Defendant.

9. It was the evidence of PW1 that his family has always used the land and that indeed his son has his house on the suit land.

10. The Plaintiff produced in evidence the certificate from the 2nd Defendant showing that the deceased was registered as member 1047 with the 2nd Defendant on 17th June, 1978.

11. The Defendants did not adduce any evidence.

12. The Plaintiff’s advocate filed brief submissions which I have considered.

13. The evidence before me shows that the deceased we registered as member number 1047 in the 2nd Defendant’s organization on 17th June, 1978.

14. The 2nd Defendant has admitted in its Defence that by virtue of his membership, the deceased was allocated the suit land.

15. The 1st Defendant did not adduce any evidence to show how he was registered as the proprietor of parcel of land known as Mavoko Town Block 12/83.

16. Considering that the suit property was initially owned by the 2nd Defendant, who has admitted that it allocated it to the deceased and not the 1st Defendant, I find that the suit land was registered in favour of the 1st Defendant fraudulently.

17. For those reasons, I find that the Plaintiff has proved his case on a balance of probabilities.

18. I therefore allow the Plaint dated 20th February, 2012 as prayed.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 2ND DAY OF NOVEMBER, 2017.

O. A. ANGOTE

JUDGE