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ELCAllowedNot stated in judgment (plaint dated 22nd July, 2013)· [2018] KEELC 1186 (KLR)

Jacob Makunyi Berece v Diego Nkambi [2018] KEELC 1186 (KLR)

Environment and Land Court (first-instance suit)
22 October 2018
PNP.M. Njoroge
506 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who bought land in 1988 got his title back after the court cancelled a fraudulent registration made in someone else's name.

What this practically means

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Executive summary

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The plaintiff sued by plaint dated 22nd July, 2013 seeking cancellation of the registration of L.R. No. Tharaka/Nkondi 'A'/248 in the defendant's name and rectification of the register so that the parcel is registered in his own name, plus costs. When the suit came up for hearing on 25th September, 2018, the plaintiff's advocate was ready to proceed but the defendant's advocate, Mr. Nyamu Nyaga, indicated he had lost touch with his client and was not ready to participate. Invoking Order 12 of the Civil Procedure Rules and noting the suit had been pending over five years, the court directed the suit to proceed exparte with the plaintiff proving his case. The plaintiff, testifying as PW1, adopted his witness statements dated 2nd July, 2013 and 27th July, 2018, averring that the registration in the defendant's name was fraudulent, and that he had extensively developed the land with a permanent house, exotic trees, bananas and mango trees. He produced a search certificate and a sale agreement dated 13th June, 1988 evidencing his purchase of the land. The court found the plaintiff had proved his case on a balance of probabilities and entered judgment for the plaintiff: it ordered cancellation of the defendant's registration and removal of his name from the register, directed the Land Registrar to rectify the register and register the parcel in the plaintiff's name forthwith, and awarded the plaintiff the costs of the suit. Judgment was delivered in open court at Chuka on 22nd October, 2018, the defendant and his advocate being absent.

Key legal issues

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01

Whether the plaintiff proved fraudulent registration of the suit land

Holding

The court found the plaintiff had proved his case on a balance of probabilities, warranting cancellation of the defendant's registration and rectification of the register in the plaintiff's favour.

Reasoning

The plaintiff testified and produced a search certificate for the suit land and a sale agreement dated 13th June, 1988 through which he bought the land. He averred that the registration in the defendant's name was fraudulent and that he had extensively developed the land, with a permanent house, exotic trees, bananas and mango trees. On this evidence, uncontroverted as the suit proceeded exparte, the court was satisfied the claim was proved.

p. 1

Legal principles established

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  • A party claiming cancellation of registration and rectification of the register on grounds of fraud must prove the claim on a balance of probabilities

Court orders

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  1. 1.An order of cancellation of the registration of L.R. No. Tharaka/Nkondi 'A'/248 issued to the Land Registrar so that the name of the defendant Diego Nkambi Mugambi is forthwith removed from the register
  2. 2.An order to the Land Registrar to rectify the register and register L.R. No. Tharaka/Nkondi 'A'/248 in the name of the plaintiff, Jacob Makunyi Berece, forthwith
  3. 3.Costs of the suit awarded to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 12
Jurisdiction invoked
Original civil suit under the Civil Procedure Rules (Order 12 invoked); not stated by specific provision

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, "Jacob Makunyi Berece v Diego Nkambi [2018] KEELC 1186 (KLR)", Case Analysis (2018). Not stated in judgment (plaint dated 22nd July, 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1186/eng@2018-10-22

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