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ELCAllowedELC No. 197 of 2017· [2019] KEELC 1814 (KLR)

George Stephen Macharia v Issa Nyawiri Jabiri & 2 others [2019] KEELC 1814 (KLR)

Environment and Land Court
31 July 2019
AOA. Omollo
727 words in judgment
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The bottom line

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A Mombasa court cancelled a fraudulently obtained Diani land title and ordered the plot returned to its rightful 1978 allottee.

What this practically means

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Executive summary

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The plaintiff sued the three defendants by plaint dated 5th June 2017 seeking a declaration that the title issued to the 1st defendant over parcel Kwale/Diani Settlement Scheme 397 was null and void, that the title held by the 2nd defendant be cancelled or expunged from the 3rd defendant's records, that the plot be transferred to him, and costs. The defendants, served by substituted service through a Daily Nation notice of 24th October 2018, did not enter appearance. Interlocutory judgment was requested and the suit set down for formal proof on 25th April 2019. In uncontroverted evidence, the plaintiff testified that he was allotted the plot in 1978, paid commitment fees, and obtained a certificate of outright purchase in 1997. In March 2015, while following up his title, he discovered the 1st defendant had obtained a title deed in 2002 and transferred it to the 2nd defendant. He complained to the police and village elders, who summoned the defendants without response. His documentary trail included the letter of offer, certificate of outright purchase, receipts, green card, transfer documents and letters from the Director of Land Adjudication and Settlement confirming him as the genuine allottee and requesting recall of the defendants' documents. A village elder's statement confirmed only the plaintiff as owner. Holding the plaintiff's evidence proved his case, the court entered judgment in his favour as prayed, with costs as claimed in the plaint. Judgment was delivered at Mombasa on 31st July 2019 by A. Omollo J.

Key legal issues

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01

Whether the plaintiff proved his claim of ownership and fraudulent acquisition of title by the 1st and 2nd defendants

Holding

The plaintiff proved he was the genuine allottee and legal owner of the suit plot; judgment was entered for him as prayed

Reasoning

The plaintiff's evidence was uncontroverted, the defendants having been served by substituted service and not appearing. His documentary evidence, including the letter of offer of 14th February 1978 and certificate of outright purchase of 9th September 1997, established his allotment. The Director of Land Adjudication and Settlement confirmed him as the genuine allottee and requested recall of the defendants' documents, and a village elder's statement confirmed only the plaintiff as owner.

p. 2

Legal principles established

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  • Uncontroverted evidence that satisfies the court on allotment and outright purchase of a settlement scheme plot grounds the entry of judgment as prayed

Court orders

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  1. 1.Judgment entered in favour of the plaintiff as prayed in the plaint
  2. 2.Declaration that the title issued to the 1st defendant in respect of Kwale/Diani Settlement Scheme 397 is null and void as regards the title held by the 2nd defendant
  3. 3.The 3rd defendant to cancel or expunge from its records the title held by the 2nd defendant
  4. 4.The 3rd defendant to transfer the said parcel of land to the plaintiff
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act (uncontested suit for declaration and cancellation of title to land)

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, "George Stephen Macharia v Issa Nyawiri Jabiri & 2 others [2019] KEELC 1814 (KLR)", Case Analysis (2019). ELC No. 197 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1814/eng@2019-07-31

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