WANJA KIRABA V AGNES W NGANGA & ANOTHER [2013] KEHC 3290 (KLR)

REPUBLIC OF KENYA

High Court at Nairobi (Nairobi Law Courts)

Environmental & Land Case 762 of 2012 [if gte mso 9]><![endif]

WANJA KIRABA ......................................................PLAINTIFF

=VERSUS=

AGNES W NGANGA........................................1ST DEFENDANT

LAND REGISTRAR KIAMBU............................2ND DEFENDANT

JUDGMENT.

The Plaintiff herein Wanja Kiraba has sued the Defendants Agnes Wanjiru Nganga and Land Registrar, Kiambu for various orders:-

a)The combination of LR Githunguri/Githiga/2172, 2173, and 2174 be declared null and void.

b)The 2nd Defendant be ordered to rectify the land register and the Plaintiff be issued with the Title Deed for LR. Githunguri/( Githiga/ 2172.

c)An order of eviction against the 1st Defendant from LR Githunguri/Githiga 2172.

d)Costs of this suit.

The Plaintiff averred in her Plaint and evidence in court that she is a sister to Agnes Wanjiru Nganga, the 1st Defendant herein. That their mother Phyllis Wambui Kiraba subdivided her land LR Githunguri/Githiga / 1091 among her three daughters. That the resultant parcels of land were Githunguri/Githiga 2172, Githunguri/Githiga 2173, Githunguri/Githiga 2174.

The Plaintiff herein Wanja Kiraba was given LR No. Githunguri/Githiga 2172. Felistus Njeri Kiraba was given Githunguri/Githiga 2174 and 2173 remained in the name of their mother but the same was later to be registered in the names of Agnes Wanjiru, the 1st Defendant.

Plaintiff further stated that LRNo. Githunguri/Githiga 2172 was registered in her name on 25/9/1997 as evidenced by Exhibit 1. She further testified that the 1st Defendant without colour of right has occupied a part of her land and the 2nd Defendant without any colour of right caused the closure of the Plaintiffs’ title deed without plaintiff’s knowledge or consent.

Thereafter, the Plaintiff issued notice of intention to sue to the 1st Defendant but the 1st Defendant has declined to honour it.

The Defendants herein were served with summons to Enter Appearance as evidenced by the Affidavit of service filed on 11/12/2012 by one Moses Njoroge. The Defendants failed to Enter Appearance nor file Defence. Interlocutory Judgement was entered against them on 11/12/2012.

On 12/3/2013, the case proceeded for formal proof whereby the plaintiff reiterated her averments in her statement and in the plaint. She further stated that after her mother sub- divided the land among the three sisters, Agnes, the 1st Defendant filed a claim at the Kiambu Land District Tribunal.

The Tribunal ruled in favour of the 1st Defendant. Their mother, Phyllis Wambui Kiraba appealed at Provincial Land Disputes Appeals Committee, Central Province as per exhibit IV. The Appeals Committee ruled in favour of their mother. However, Agnes continued to interfere with Plaintiff land and even dug a borehole. The Plaintiff reported the matter to the District Officer who sent Agnes, the 1st Defendant a warning as evidenced by exhibit No. III.

Furthermore, Agnes the 1st Defendant caused the three parcels of land i.e.  L R Githunguri / Githiga/ 2172, 2173, 2174 to be combines to produce land parcel No. Githunguri/ Githiga/ 2319.

That combination of the three parcels of land was without the knowledge and consents of the plaintiff and her other sisters. Plaintiff however still retains her title deed in her name as per exhibit1. That the Land Registrar was requested to combined the three Titles by Agnes the 1st Defendant. Later, Plaintiff requested 1st Defendant to move out of the land as evidenced by exhibit 6. The 1st Defendant has not done so and that is why Plaintiff moved to court.

Her evidence was supported by Felistus Njeri who is a sister to the Plaintiff and 1st Defendant. She confirmed that the land was divided among the three of them. However, Agnes the 1st Defendant objected and filed a claim at the Land Tribunal in Kiambu. The Provincial Land Committee later ruled in favour of their mother.

Felistus still has the title deed in her name but when she carried a search at the Lands Office, she found the three parcels had been consolidated without her consent or knowledge.

Veronicah Muthoni who is the other sister of Plaintiff, PW2 and 1st Defendant also confirmed that their mother distributed the land to the three sisters i.e Wanja, Wanjiru and Njeri. Agnes Wanjiru the 1st Defendant was not satisfied and she sued their mother.

1st Defendant has built on Wanja’s parcel of land and thus this suit.

The Court has considered the available evidence. There is an interlocutory judgement entered against the Defendants.

During the formal proof, the Plaintiff produced exhibits  in court. Exhibit No1 showed that LR No. Githunguri/Githiga/2172 is registered in her name. The same was a result of sub-division of LR No. Githunguri/Githiga/1091. Wanja was registered as the proprietor in 1997 ( 25/9/1997).

There is evidence that Plaintiff and 1st Defendant have had a conflict over the suit land. The same culminated in the District Officer, one Moranga  Morekwa writing Exhibit III to Agnes Wanjiru Nganga .

There is also evidence that one Phyllis Wambui Kiraba appealed at Provincial Land Disputes Appeals Committee as per exhibit No. IV . The Respondent was Agnes Wanjiru Nganga the Tribunal ruled in favour of Phyllis Wambui Kiraba.

There is no evidence at all that Agnes Wanjiru ever appealed that decision of the Provincial Land Disputes Appeals Committee. It is worth to note that through exhibit No. V, the three parcels of land 2172, 2173, and 2174 were combined to produce parcel No. 2319.

The Plaintiff and PW2 told the Court that was done without their knowledge. The 1st Defendant did not even Enter Appearance nor file defence to dispute that allegation. There was also no Defence filed by 2nd Defendant.

The Court finds that, there is sufficient evidence to proof that Plaintiff herein Wanja Kiraba was given the parcel of land LR Githunguri/Githiga/ 2172 by her mother. She did not consent to the same being combined to produce title 2319. Agnes Wanjiru Nganga has illegally occupied her land and has refused to move out and has even dug a borehole.

For the above reasons, the Plaintiff is justified in her claim. Plaintiff has proved her case on a balance of probabilities. Consequently, the Court allows the Plaintiff’s Claim as stated in the Plaint.

·Plaintiff also entitled to costs of this suit.

Dated, signed and delivered this 17th day of May 2013

28 days Right of Appeal.

L.N. GACHERU

JUDGE

In the Presence of:-

………………………………………For the Plaintiff/Respondent

……………………………………..For the 1st Defendant

……………………………………..For the 2nd Defendant

………………………………………Court Clerk

L.N. GACHERU

JUDGE

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