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ELCAllowedELC Case No. 317 of 2017· [2018] KEELC 1790 (KLR)

Stanley Kimanyano Kikuyu v Zibeon Makonge [2018] KEELC 1790 (KLR)

Environment and Land Court
20 September 2018
NMN.A. Matheka
631 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that a land buyer who keeps proper documents can win a declaration of ownership even when the seller boycotts the case.

What this practically means

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Executive summary

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This was an Environment and Land Court suit at Kakamega in which the plaintiff, Stanley Kimanyano Kikuyu, sued the defendant, Zibeon Makonge, seeking a declaration that he is a bona fide beneficiary of 0.03 Ha carved out of L.R. No. S/Maragoli/Lugovo/166. The plaintiff's case was that on 28th October 2005 he entered into a land sale agreement with the defendant for that portion at a consideration of Ksh. 160,000/=, which he paid in full. Land board forms were completed, he attended the land board with the defendant, and a survey was conducted subdividing the parcel into L.R. No. S/Maragoli/Lugovo/1802 (1.28 ha, belonging to the defendant) and L.R. No. S/Maragoli/Lugovo/1803 (0.03 ha, belonging to the plaintiff). The defendant, however, refused to surrender the old title deed at the lands office so that the plaintiff could be issued with his title, and also refused to effect the transfer. The plaintiff had earlier filed a suit in the Senior Principal Magistrate's Court at Hamisi which remained pending for nine years, and was directed by the Resident Magistrate to take the matter to the High Court at Kakamega, which has jurisdiction. The defendant was served but neither attended court nor filed any documents in opposition. The court found the plaintiff's evidence unchallenged, noting that he produced the sale agreement, application for consent, mutation form and search certificate as exhibits. The court held that the plaintiff had proved his case on a balance of probabilities and entered judgment with costs against the defendant.

Key legal issues

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01

Proof of the land sale and the plaintiff's beneficial entitlement

Holding

The plaintiff proved on a balance of probabilities that he bought 0.03 Ha of L.R. No. S/Maragoli/Lugovo/166 for Ksh. 160,000/=, that the land was surveyed and subdivided with the parcel L.R. No. S/Maragoli/Lugovo/1803 corresponding to his share, and that the defendant refused to surrender the old title to enable issuance of his title.

Reasoning

The plaintiff produced the sale agreement, application for consent, mutation form and search certificate as exhibits. The defendant, though served, neither attended court nor filed documents in opposition, so the plaintiff's evidence stood unchallenged. The court found the case proved on a balance of probabilities and granted the declaration sought, with costs.

p. 2

Legal principles established

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  • An unchallenged plaintiff's case supported by documentary evidence of a land sale, consent, mutation and search, proved on a balance of probabilities, entitles the purchaser to a declaration of beneficial ownership of the agreed portion.

Court orders

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  1. 1.A declaration that the plaintiff is a bonafide beneficiary of a portion of land measuring 0.03 Ha from the L.P. No. S/Maragoli/Lugovo/166
  2. 2.Costs to the plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction under Article 162(2) of the Constitution (land disputes transferred from the Magistrate's Court at Hamisi as directed)

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, "Stanley Kimanyano Kikuyu v Zibeon Makonge [2018] KEELC 1790 (KLR)", Case Analysis (2018). ELC Case No. 317 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1790/eng@2018-09-20

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