Oscar Lulu Mwasambu & another v Harrison Dzengo Kenga [2019] KEELC 4524 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the sale was of six acres or three acres
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
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.
Whether the documentation referencing Plot No. Kilifi/Ngerenya/898 was made in error
The court found the parties intended to transact over Plot No. Kilifi/Ngerenya/868 and the reference to 898 was a mistake warranting rectification
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.
Whether the Defendant was entitled to judgment on the Counterclaim
Judgment was entered for the Defendant as prayed in the Counterclaim dated 17th October 2007
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.
Legal principles established
#- 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
#- 1.Judgment entered for the Defendant as pleaded in the Counterclaim dated 17th October 2007
- 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.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.The Defendant to have the costs of both the Plaintiff's suit and the Counterclaim
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.