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ELCPartially AllowedNot stated in the judgment text· [2018] KEELC 2080 (KLR)

Silveria Muria Nkonge v Simon Murithi & 3 others [2018] KEELC 2080 (KLR)

Not stated in the judgment text (first-instance land suit, likely Environment and Land Court)
Invalid Date
NDNdegwa
9,558 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~38 min to read original · ~4 min brief

The bottom line

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A Chuka court cancelled a fraudulent transfer of a Chuka plot, restored the buyer's half-share, and ordered the land registered and subdivided accordingly.

What this practically means

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Executive summary

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In a plaint dated 31st July 2007, the plaintiff, Silveria Muria Nkonge, sought a declaration that the sale and transfer of the whole leasehold interest in land parcel CHUKA/TOWNSHIP/206 to the 3rd defendant was fraudulent and null and void ab initio, cancellation and rectification of the register to reflect her and the 3rd defendant as co-owners, a permanent injunction protecting her possession of Plot M7B, and costs. She testified that she bought Plot M7B from the 1st defendant in June 2001 for Kshs.250,000/=, paid in full, and was transferred the plot by the then Municipal Council of Chuka, developing it and collecting rent. In 2007 she discovered the entire parcel had been transferred to the 3rd defendant pursuant to an agreement dated 22nd August 2006 and a lease transfer allegedly signed in 2006. The 1st defendant admitted her claim, denying the 2006 agreement and transfer as forgeries; the 2nd defendant likewise denied selling his share to the 3rd or 4th defendants. The 3rd and 4th defendants denied the claim, alleging the plaintiff was a mere tenant, but the 3rd defendant shifted in oral evidence, conceding the plaintiff's entitlement if reimbursed Kshs.100,000/=. The court found the plaintiff's evidence uncontroverted and credible, held the 3rd and 4th defendants bound by their pleadings, and rejected the refund claim for lack of receipts and any counter-claim. Judgment was entered for the plaintiff: a declaration of fraud and nullity, cancellation and rectification of the register in favour of the plaintiff and the 3rd defendant, an order for subdivision with the Executive Officer empowered to sign documents on default, a permanent injunction, and costs to the plaintiff against the 3rd and 4th defendants only.

Key legal issues

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01

Whether the plaintiff proved that the transfer of the whole leasehold interest in CHUKA/TOWNSHIP/206 to the 3rd defendant was fraudulent

Holding

Yes. The plaintiff bought Plot M7B from the 1st defendant in 2001 and was registered; the 1st and 2nd defendants denied the 2006 agreement and transfer, calling them forgeries, and the 3rd defendant in effect admitted the plaintiff's entitlement to half the land. The transfer of the whole parcel to the 3rd defendant alone defrauded the plaintiff.

Reasoning

The plaintiff's uncontroverted evidence showed she purchased Plot M7B in 2001, paid the full price and was transferred the plot by the Municipal Council of Chuka. The 1st defendant admitted the sale and denied the 2006 agreement and transfer as forgeries. The 3rd defendant conceded in oral evidence that the plaintiff was entitled to her portion. The court found the plaintiff's evidence evinced integrity and was not controverted.

p. 14
02

Whether the 3rd and 4th defendants had a meritorious defence despite their denial of the claim in their pleadings

Holding

No. They were bound by their pleadings, in which they denied the claim and alleged the plaintiff was a tenant; they could not change tack at hearing, and the 4th defendant never testified.

Reasoning

Applying the KCB v Mwanzau Mbaluka authority, the court held parties to their pleadings. The 3rd defendant's oral evidence contradicted his defence, admitting the plaintiff's entitlement, and his claim for Kshs.100,000/= refund lacked receipts and any counter-claim. DW4 and DW5's evidence had no probative value, and the 4th defendant did not testify.

p. 15
03

Costs

Holding

Costs awarded to the plaintiff against the 3rd and 4th defendants as the deserving outcome of a meritorious claim, following the Margaret Rwamba authority; the 1st defendant expressly sought not to bear costs.

Reasoning

The plaintiff's claim was proved and her claim to costs supported by the Margaret Rwamba decision on awarding costs to the deserving party. The 1st and 2nd defendants admitted the claim, so costs were not awarded against them.

p. 15

Legal principles established

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  • A litigant is bound by his/her pleadings and cannot change or abandon their defence at the hearing
  • Costs should be awarded to the deserving party where the court finds a claim meritorious
  • A claim for reimbursement not pleaded by way of counter-claim and unsupported by documentary evidence cannot be granted

Court orders

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  1. 1.Declaration that the sale and subsequent transfer of the whole leasehold interest in land parcel No. CHUKA/TOWNSHIP/206 to the 3rd defendant is fraudulent and null ab initio
  2. 2.Cancellation of the name of the 3rd defendant from the register for land parcel No. CHUKA/TOWNSHIP/206
  3. 3.The Land Registrar is ordered to rectify the register for land parcel No. CHUKA/TOWNSHIP/206 to read that it belongs to Silveria Muria Nkonge (plaintiff) and Edward Mugo M'Mbauni (3rd defendant)
  4. 4.The plaintiff and the 3rd defendant are ordered to subdivide Plot No. CHUKA/TOWNSHIP/206 and share the costs thereof, and in default the Executive Officer of the court is empowered to sign all relevant transfer documents
  5. 5.Permanent injunction restraining the defendants, their servants, agents, assigns and employees from entering, alienating or interfering with the plaintiff's actual possession, use and ownership of half of Land Parcel No. CHUKA/TOWNSHIP/206 designated as Plot No. M7B
  6. 6.Costs awarded to the plaintiff against the 3rd and 4th defendants
Jurisdiction invoked
Not stated in the judgment text; original civil suit for declaration of fraud, cancellation of registration and rectification of land register

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, "Silveria Muria Nkonge v Simon Murithi & 3 others [2018] KEELC 2080 (KLR)", Case Analysis (). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2080/eng@2018-07-25

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