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ELCAllowedELC 372 of 2015 (O.S.)· [2018] KEELC 699 (KLR)

Derrick Kamau Wamatu v Felistus Nungari Njoroge [2018] KEELC 699 (KLR)

Environment and Land Court
26 November 2018
1,821 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed that a registered landowner's title wins, removing a baseless caution and ordering eviction with 45 days' notice.

What this practically means

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Executive summary

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This was an undefended suit in which the Plaintiff, a beneficiary under the Will of the late Martin Wamatu Njoroge, sought removal of a caution registered by the Defendant's son and eviction of the Defendant from land parcel Ngenda/Githunguchu/T.401. The Plaintiff pleaded that probate of the Will was granted on 13th October 2006, the grant was confirmed on 28th November 2007, and he was subsequently registered as proprietor of the suit property. He alleged that the Defendant, formerly married to his father but divorced, trespassed on and occupied the property from about 2006 and refused to vacate despite demands. The Defendant neither entered appearance nor filed a defence. Two witnesses testified for the Plaintiff, including the Plaintiff himself, and the Grant of Probate and confirmation were produced. The Plaintiff relied on Order 2 Rule 11 (deemed admission of untraversed facts) and Sections 24 to 29 of the Land Registration Act on the rights of registered proprietors, together with case law on indefeasibility of title and removal of cautions. The court, L. Gacheru J, framed the issues around the Plaintiff's registered proprietorship, the removal of the caution, and the Plaintiff's entitlement to the prayers. It found the Plaintiff's title prima facie and indefeasible under Section 26(1), held the caution served no purpose since the cautioner's application for revocation of the grant in the succession cause had been dismissed, and held the Plaintiff's uncontroverted averments admitted. Judgment was entered for the Plaintiff in terms of prayers (a), (b) and (c), with 45 days' notice for vacant possession before eviction, plus costs.

Key legal issues

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01

Whether the Plaintiff is the registered proprietor of the suit property entitled to the rights of a proprietor

Holding

Yes - the Plaintiff was registered on 7th May 2008 after the Grant of Probate and his title is protected under Sections 24, 25 and 26(1) of the Land Registration Act.

Reasoning

The court found the Plaintiff was registered as proprietor on 7th May 2008 following confirmation of the grant of probate. Section 26(1) of the Land Registration Act renders his title prima facie and indefeasible, subject only to fraud, misrepresentation, illegality, unprocedural acquisition or corrupt scheme. No such challenge was made as the Defendant never entered appearance. His rights include exclusive use, possession and enjoyment without interference.

p. 2
02

Whether the caution registered by the Defendant's son should be removed

Holding

Yes - the cautioner's application for revocation of the grant in the succession matter was dismissed, so the caution serves no purpose and must be removed.

Reasoning

Under Section 71 of the Land Registration Act only a person claiming a right or interest capable of registration may lodge a caution. The cautioner had lodged it pending an application for revocation of the grant in the succession cause, which was dismissed and the Plaintiff's entitlement upheld. Since neither the cautioner nor the Registrar removed the caution, the Court directed its removal under Section 73(1), as the Defendant did not appear to justify it.

p. 3
03

Whether the averments in the Plaint were admitted by the Defendant for failure to file a defence

Holding

Yes - under Order 2 Rule 11, allegations of fact not traversed are deemed admitted, entitling the Plaintiff to all prayers sought.

Reasoning

The Defendant neither entered appearance nor filed a statement of defence and did not participate in the proceedings. Relying on Order 2 Rule 11 of the Civil Procedure Rules, the court held that untraversed allegations of fact are deemed admitted. The Plaintiff's evidence, including the Grant of Probate and confirmation of grant, went uncontroverted, and his case was proved on a balance of probabilities.

p. 3

Legal principles established

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  • A registered proprietor is the absolute and indefeasible owner of the land, subject only to challenge on grounds of fraud, misrepresentation, or illegally, unprocedurally or corruptly acquired title.
  • Registration of a person as proprietor vests absolute ownership of the land together with all rights and privileges appurtenant thereto.
  • A caution can only be lodged and maintained on a parcel of land by a party who can demonstrate a right or interest in the land, lease or charge; otherwise it should be removed.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendant in terms of prayer No.(a), (b) & (c) of the Plaint
  2. 2.Removal of the caution registered against land parcel Ngenda/Githunguchu/T.401
  3. 3.Eviction of the Defendant, her agents, servants, dependants and tenants from the suit property
  4. 4.Plaintiff to give the Defendant notice of 45 days from the date of judgment for vacant possession, in default eviction to issue
  5. 5.Costs of the suit to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 2 Rule 11
  • Land Registration ActSections 24 to 29; Section 24(a); Section 25(1); Section 26(1); Section 71; Section 73(1)
  • Constitution of KenyaArticle 47

Cases cited (4)

  • Wamwea v Catholic Dioces of Muranga Registered Trustees
    (2003) KLR 389
  • Paul Audi Ochuodho v Joshia Ombura Orwa
    (2014) eKLR
  • Simon Njage Njoka v Simon Gatimu Kanyi
    (2007) eKLR
  • Milkah Muthoni Wagoco v County Council of Kirinyaga & 2 Others
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Ngenda/Githunguchu/T.401 (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Derrick Kamau Wamatu v Felistus Nungari Njoroge [2018] KEELC 699 (KLR)", Case Analysis (2018). ELC 372 of 2015 (O.S.). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/699/eng@2018-11-26

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