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ELCAllowedE.L.C. Case No. 145 of 2014 (Formerly Kerugoya ELC 54 of 2012)· [2018] KEELC 1383 (KLR)

Raphael Njeru Njiru v Gerald Njeru Njiru [2018] KEELC 1383 (KLR)

Environment and Land Court of Kenya at Embu
4 October 2018
YAY.M. Angima
607 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Land Court cancelled a relative's title obtained through impersonation and confirmed the rightful owner's claim after 45 years.

What this practically means

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Executive summary

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The Plaintiff sued the Defendant by plaint dated 29th November 2012, seeking cancellation of the Defendant's name from the register for land parcel Embu/Gangara/46, a declaration that the Defendant's title deed was void, the registration of the Plaintiff as proprietor, and costs. The Plaintiff pleaded that the suit property was allocated to him in 1973 by his Gekara clan when he was a minor known as Njeru Njiru, and that upon attaining majority he discovered the Defendant had obtained a title deed for the same property by fraudulently misleading the Land Control Board into believing he was the Njeru Njiru who had been allocated the land. The Defendant could not be traced for personal service; substituted service by advertisement in the Daily Nation of 21st May 2014 was ordered, but the Defendant never entered appearance, and the suit proceeded undefended. At trial the Plaintiff testified that the Defendant was not yet born at the time of allocation, having been born in 1975, and called four supporting witnesses - two relatives and two neighbours. The court considered the oral and documentary evidence, including the application form for correction of name and the Defendant's statutory declaration of 30th April 2007, and found the Plaintiff's unchallenged evidence sufficient to prove the case to the required standard. Judgment was entered for the Plaintiff as prayed: the Defendant's name was ordered cancelled from the land register, his title declared null and void, the Plaintiff to be registered as proprietor and issued a title deed, with costs of the suit awarded to the Plaintiff.

Key legal issues

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01

Proof of fraudulent acquisition of title where the defendant does not defend the suit

Holding

The Plaintiff proved, on the evidence including the application form for correction of name and the Defendant's statutory declaration of 30th April 2007, that the Defendant fraudulently obtained title by impersonating the allocated owner; judgment was entered as prayed.

Reasoning

The Plaintiff testified he was allocated the suit property by his Gekara clan in 1973 while he was a minor known as Njeru Njiru; the Defendant, born in 1975, could not have been the person allocated the land. The Plaintiff produced the Defendant's application for correction of name and statutory declaration. With five witnesses and no contrary evidence, the court found the claim proved to the required standard and granted the reliefs sought in the plaint.

p. 2

Legal principles established

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  • Where a defendant fails to enter appearance or defend, unchallenged plaintiff evidence that satisfies the court on a balance of probability suffices to prove the claim to the required standard.

Court orders

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  1. 1.The name of the Defendant GERALD NJERU NJIRU be cancelled from the land register as proprietor of Title No. Embu/Gangara/46 by the Land Registrar Siakago
  2. 2.The title deed issued to the Defendant, Gerald Njeru Njiru, is declared null and void
  3. 3.The Land Registrar, Siakago shall register the Plaintiff as the proprietor of Title No. Embu/Gangara/46 and issue him with a title deed
  4. 4.The Plaintiff is awarded costs of the suit
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (land ownership and title dispute)

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, "Raphael Njeru Njiru v Gerald Njeru Njiru [2018] KEELC 1383 (KLR)", Case Analysis (2018). E.L.C. Case No. 145 of 2014 (Formerly Kerugoya ELC 54 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1383/eng@2018-10-04

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