Michele Caliendo & Maurizio Carlo v Sun Reef Limited, Di Ivita Giuseppe & Registrar Of Titles Mombasa [2013] KEHC 1709 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MALINDI

HCCC NO. 101 OF 2011

MICHELE CALIENDO.................................................1ST PLAINTIFF

MAURIZIO CARLO.....................................................2ND PLAINTIFF

=VERSUS=

SUN REEF LIMITED...............................................1ST DEFENDANT

DI IVITA GIUSEPPE...............................................2ND DEFENDANT

REGISTRAR OF TITLES MOMBASA................3RD DEFENDANT

J U D G M E N

Introduction

The Plaintiffs moved this court by way of a Plaint dated 27th July, 2013.

In the Plaint, the Plaintiffs  averred  that they are the bona fine owners of land  known as plot number 29144 (original number 514/53); that the 1st Plaintiff left the country on 11th November 2007 and came back on 20th November 2009 while the 2nd Plaintiff left the country on 1st November 2007 and came back on 20th July 2011.

The Plaintiffs further averred that they developed the suit property with a residential house, servant quarters, swimming pool and a garden and furnished it with all the essentials commodities and facilities necessary for occupancy.

On 13th July 2009, the 1st Defendant, with an intention of defrauding the Plaintiffs prepared an instrument, namely, an indenture, purporting to transfer the suit property; that the suit property was transferred to the 1st Defendant on 15th July 2009 and that the Plaintiffs only discovered all these developments when they came back from Italy on 20th July 2011 and found strangers in their house who denied them access.

The Plaintiffs pray for a declaratory order that the registration and transfer of the suit premises in favour of the 1st Defendant is null and void and for an order of cancellation of the 1st Defendant's title.

The 1st and 2nd Defendants were served with the Summons to Enter Appearance and Plaint by way of advertisement in the Nation Newspaper of 15th December 2011.  The Defendants, including the Registrar of Titles did not enter appearance.  The matter proceeded for formal proof on 30th July 2013.

2nd Plaintiff's evidence

The 2nd Plaintiff, PW1, informed the court that he stays in Milan, Italy where he works as an auditor.  He further stated that before the year 2006, he acquired a plot in Kenya from two Italians being plot number 914.

PW1 stated that he paid 19000 Euros for the property and was issued with a title. He produced as exhibit number 1 the indenture dated 2nd March 2006.

It was PW1 evidence that he acquired the property with the 1st Plaintiff who is his friend whereafter they prepared the plan for the construction of a residential house.  The plan was approved by the Municipal Council of Malindi which he produced as exhibit number 2.  The witness also produced photographs showing the different phases of the construction of the house of the suit property as exhibit numbers 3 a-f.

PW1 testified that they build the house to completion and took possession after furnishing it.  According to the witness, the furniture was sold to them by Kibiribiri furnitures. He produced as exhibit 6 the invoice from Kibiribiri and exhibit 7 being photographs of the said furniture.

PW1 finally stated that when he came back to the country, he found strangers in his house and yet he had never sold the house. He obtained a search which showed that the 1st Defendant was the registered owner of the suit property which he produced as exhibit number 7.

The Plaintiffs' advocate filed his written submissions on 3rd October 2013 and reiterated the evidence given by PW1. I have considered the said submissions.

The 1st Defendant, who is the purported registered owner of the suit property was served with the Summons to Enter Appearance and Plaint but never entered appearance.

Analysis

The Plaintiffs' averments and evidence that they bought the suit property by way of an indenture dated 2nd March 2006 has not been rebutted. The indenture was registered at lands office on 20th March 2006 in file number LT 21 folio 652 file 4940, which is the same number indicated in the search that shows that the registered owner of the suit property is the 1st Defendant.

In view of the fact that the Plaintiffs have denied ever selling the suit property to the 1st Defendant, and in the absence of evidence to the contrary, I find and hold that the transfer of the suit property to the 1st Defendant was fraudulently done and the same is null and void.

In the circumstances, and for the reasons I have given above, I allow the Plaintiffs' plaint dated 27th July 2011 in the following terms:

(a)     A declaration be and is hereby issued that the registration and transfer of the suit premises in favour of the 1st Defendant is null and void and consequently the 1st Defendant's title be cancelled and the suit property be registered in the names of the Plaintiffs.

(b)    A permanent injunction be and is hereby issued restraining the 1st Defendant, its agents, legal representatives, servants, or any one claiming interest through it from entering, remaining and or dealing with the suit premises in any manner whatsoever.

(c)     The 1st Defendant to pay to the Plaintiffs the costs of the suit.

Dated and Delivered in Malindi this 18th day of October,2013

O. A. Angote

Judge