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ELCDismissedNot stated in judgment as extracted· [2019] KEELC 4524 (KLR)

Oscar Lulu Mwasambu & another v Harrison Dzengo Kenga [2019] KEELC 4524 (KLR)

Environment and Land Court
21 February 2019
1,493 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court confirmed a land buyer purchased six acres, not three, because the sellers never showed up to challenge his evidence.

What this practically means

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Executive summary

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The suit was originally filed at the Kilifi Resident Magistrates Court in September 2007 by Masumbuko Jambo Mwasambu seeking a declaration that the Defendant, Harrison Dzengo Kenga, was unlawfully demanding title to six acres of suit land, removal of a caution, injunction and damages. The Defendant filed a Defence and Counterclaim seeking a declaration that he had purchased six acres out of Plot No. Kilifi/Ngerenya/868 and that the documentation referring to Plot No. Kilifi/Ngerenya/898 was made in error, plus an order for surrender of title deeds for rectification. A preliminary objection that the suit was time barred under Section 7 of the Limitation of Actions Act succeeded before the Senior Resident Magistrate, who struck out the suit with each party bearing their own costs. On appeal, Justice Oscar Angote of the High Court at Malindi reinstated the suit on 20th June 2014, and it was transferred to this Court. On 4th April 2018 the Plaintiffs and their Advocate failed to attend, and the suit was dismissed for want of prosecution, the Defendant being allowed to proceed with his Counterclaim. The Defendant testified that he bought six acres in 1989 for Kshs 40,000/-, later adjusted to Kshs 70,000/-, with Land Control Board consent obtained. The parcel number 898 in the documents was shown to be an error; the vendor in fact owned Plot 868. The court found the Defendant's uncontroverted evidence proved the purchase of six acres and the documentary error, entered judgment for the Defendant on the Counterclaim, and awarded him costs of both the suit and the Counterclaim.

Key legal issues

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01

Whether the sale was of six acres or three acres

Holding

The Defendant proved he bought six acres out of Plot No. Kilifi/Ngerenya/868, as corroborated by the Land Control Board consent dated 21st January 1993 and the adjusted sale agreement of 23rd October 1993

Reasoning

The court relied on the Land Control Board consent letter of 21st January 1993 confirming the vendor held 12 acres and was selling six to the Defendant, and the written agreement of 23rd October 1993 adjusting the price to Kshs 70,000/-. The Plaintiffs, who contended only three acres were sold, led no evidence. The Defendant's testimony was corroborated by DW2 and DW3.

p. 2
02

Whether the documentation referencing Plot No. Kilifi/Ngerenya/898 was made in error

Holding

The court found the parties intended to transact over Plot No. Kilifi/Ngerenya/868 and the reference to 898 was a mistake warranting rectification

Reasoning

Both parcels were at one point registered in the vendor's name though he in fact owned only Plot 868, Plot 898 belonging to Kombe Nzai Lewa. A ground verification by the District Land Adjudication & Settlement Officer confirmed the Defendant occupied part of Plot 868. The parties themselves discovered the anomaly when preparing the agreements, and the Land Registrar summoned the Plaintiffs for rectification but they failed to attend.

p. 2
03

Whether the Defendant was entitled to judgment on the Counterclaim

Holding

Judgment was entered for the Defendant as prayed in the Counterclaim dated 17th October 2007

Reasoning

The Plaintiff's suit had been dismissed for want of prosecution on 4th April 2018, leaving only the Counterclaim. The Defendant and his two witnesses testified and their evidence was uncontroverted, as the Plaintiffs neither testified nor adduced rebuttal evidence. The court was satisfied the Counterclaim was proved and entered judgment as pleaded.

p. 3

Legal principles established

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  • A party who does not testify or adduce evidence in rebuttal of an opposing claim bears the consequence that the opposing testimony stands uncontroverted.

Court orders

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  1. 1.Judgment entered for the Defendant as pleaded in the Counterclaim dated 17th October 2007
  2. 2.A declaration that the Plaintiff sold to the Defendant six acres out of Plot No. Kilifi/Ngerenya/868 and that the documentation referring to Plot No. Kilifi/Ngerenya/898 was erroneous or made by mistake
  3. 3.An order that the Plaintiffs surrender to the Kilifi District Land Registrar the Title Deeds for Plot No. Kilifi/Ngerenya/868 and Plot No. Kilifi/Ngerenya/1012 for purposes of rectification
  4. 4.The Defendant to have the costs of both the Plaintiff's suit and the Counterclaim

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Registered Land Act (now repealed)Section 159

Cases cited (1)

  • Republic – vs- Oscar Mwasambu & Another
    Kilifi SRM Criminal Case No. 308 of 2009
On appeal from
Chief Magistrates Court at Kilifi (Senior Resident Magistrate's Court)
Suit first filed at Kilifi Resident Magistrates Court on 25th September 2007
Jurisdiction invoked
Original jurisdiction over transferred suit (transferred from the High Court at Malindi to the Environment and Land Court); no specific provision quoted

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, "Oscar Lulu Mwasambu & another v Harrison Dzengo Kenga [2019] KEELC 4524 (KLR)", Case Analysis (2019). Not stated in judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4524/eng@2019-02-21

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