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ELCAllowed· [2017] KEELC 1449 (KLR)

Benjamin Charo Kenga v Dama George Kazungu Kithi & 3 others [2017] KEELC 1449 (KLR)

Environment and Land Court
12 May 2017
JOJ.O. Olola
413 words in judgment
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The bottom line

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A Kilifi land buyer with a title deed, Land Control Board consent, and proper sub-division papers won full possession of his 4 acres against the seller's family.

What this practically means

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Executive summary

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The Plaintiff sued over land parcel Kilifi/Vipingo/375, later sub-divided to create Kilifi/Vipingo/400, registered in his name. He pleaded that the suit land belonged to Kazungu Kithi Kombe, the 1st Defendant's deceased husband, from whom he bought 3 acres for Kshs. 300,000 by an agreement dated 25th April, 2009 and a further acre for Kshs. 200,000 on 7th January, 2010. He alleged that after obtaining Land Control Board consent and sub-division, a Title Deed issued in his name, and that on 19th June, 2015 the Defendants trespassed on the land. He sought vacant possession and a permanent injunction. The Defendants denied the acquisition as illegal, claiming they believed the Plaintiff held only 3 acres and had restrained him from using more. Although served with a hearing notice, neither the Defendants nor their advocate appeared when the matter came up for hearing on 3rd October, 2016, and it proceeded undefended. The Plaintiff testified as PW1 and produced the transfer forms, mutation forms, title deed and official search. The court found the documents proved purchase of 1.6Ha (approximately 4 acres) and that the Plaintiff was entitled to peaceful use and occupation without interference. The court allowed the Plaint dated 9th September, 2015 as prayed. No costs order appears on the face of the extract. Note an irregularity: the judgment is signed by O.A. Angote J at Machakos on 2nd May, 2017 and by J.O. Olola J at Malindi on 12th May, 2017, without explanation.

Key legal issues

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01

Validity of the Plaintiff's acquisition and title to Kilifi/Vipingo/400

Holding

The Plaintiff proved lawful purchase of 4 acres from the Defendants' father, due sub-division, Land Control Board consent, and issuance of a Title Deed in his name.

Reasoning

The Plaintiff testified to two transactions: 3 acres for Kshs. 300,000 by agreement dated 25th April, 2009 and 1 acre for Kshs. 200,000 on 7th January, 2010. He produced transfer forms, mutation forms, title deed and official search, and the documents confirmed purchase of 1.6Ha (approximately 4 acres). The Defendants, though served, did not attend or controvert this evidence.

p. 2
02

Entitlement to vacant possession and permanent injunction

Holding

Having proved title and possession, the Plaintiff was entitled to the relief claimed in the Plaint.

Reasoning

The Plaintiff alleged trespass on 19th June, 2015 by the Defendants, who claimed he was only entitled to 3 acres. The uncontroverted evidence established registered title to the whole 4 acres, so the Defendants' interference was unjustified and the Plaint was allowed as prayed.

p. 2

Legal principles established

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  • A purchaser who completes a land sale with Land Control Board consent, obtains sub-division and registration, is entitled to peaceful use and occupation of the land free of interference by the vendor's successors.

Court orders

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  1. 1.The Plaintiff's Plaint dated 9th September, 2015 is allowed as prayed
  2. 2.Vacant possession and permanent injunction as sought in the Plaint (allowed 'as prayed')
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benjamin Charo Kenga v Dama George Kazungu Kithi & 3 others [2017] KEELC 1449 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1449/eng@2017-05-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.