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ELCPartially Allowed· [2022] KEELC 1382 (KLR)

Albert Kihianyu Gikaria v Mararui Farmers Company Limited & another [2022] KEELC 1382 (KLR)

Environment and Land Court
17 February 2022
3,871 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Nairobi confirmed a buyer's 1992 share-based claim to a Nairobi plot, ordered its transfer and vacant possession within sixty days, and awarded costs.

What this practically means

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Executive summary

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By a plaint dated 15th June 2005, the Plaintiff sought an order that the Defendants execute a transfer of the suit premises to him and give vacant possession, alternatively compensation at current market value, with costs and interest. The Plaintiff's case was that he bought 75 shares from Charles Nyambesa Ayora in the 1st Defendant company in 1992, was issued receipt No. 184, balloted for Plot No. 338 (later registered as Nairobi/Block 139/723), and was shown the beacons before discovering encroachment. The 1st Defendant, through its director Mary Wangui Mburu, conceded the plot belongs to the Plaintiff and produced its register to that effect. The 2nd Defendant, substituted after death by his widow Stella Muthoni Wanjau, claimed he bought the plot from John Thairu Ngugi in 1993 and pleaded fraud against the Plaintiff, alleging the Plaintiff's documents were fabricated. The court framed four issues: ownership, legality/fraud of the 2nd Defendant's acquisition, entitlement to relief, and costs. Finding the Plaintiff's documents more consistent and authentic, and noting the 2nd Defendant's documents referenced Plot No. 0338 which the 1st Defendant said did not exist, and that the 2nd Defendant could not explain how 0338 became 338, the court held the Plaintiff to be the rightful owner and the 2nd Defendant a trespasser. The particulars of fraud against the Plaintiff were not proved. Judgment was entered for the Plaintiff: the Defendants to execute the transfer within sixty days (default - Deputy Registrar to sign), vacant possession to be given up failing which lawful eviction may follow, with costs and interest to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff is the rightful owner of Plot No. 338 now registered as Nairobi/Block 139/723

Holding

Yes - the Plaintiff proved he bought shares from Charles Nyambesa Ayora, balloted for Plot No. 338 and the 1st Defendant's register confirmed his ownership.

Reasoning

The court found the Plaintiff's documentary chain (share transfer dated 18 October 1992, receipt, ballot No. 338, yellow card No. 751, and the 1st Defendant's register produced by its director) more consistent and authentic than the 2nd Defendant's documents. The 2nd Defendant's chain referenced Plot No. 0338, which the 1st Defendant's director said did not exist, and could not explain how 0338 became 338.

p. 5
02

Whether the 2nd Defendant's acquisition of the suit property was illegal and/or fraudulent

Holding

The 2nd Defendant failed to prove lawful acquisition and failed to prove the particulars of fraud pleaded against the Plaintiff; he was found to be a trespasser.

Reasoning

The court found the 2nd Defendant could not explain how he acquired registration of Nairobi/Block 139/723, observing that it could only have been by illegal means. However, the fraud particulars pleaded in paragraph 7 of the 2nd Defendant's defence against the Plaintiff were not proved. The 2nd Defendant's documentary trail (allocation to John Thairu Ngugi of 0338, unsighted sale agreement, unsigned council approvals, accountant's confirmation letter) was found deficient.

p. 5
03

Whether the Plaintiff is entitled to the reliefs sought

Holding

Yes - having proved ownership, the Plaintiff was entitled to an order for execution of transfer, vacant possession, and costs.

Reasoning

The court held that once ownership was established, the reliefs followed. The 1st Defendant had consistently maintained the property belonged to the Plaintiff but had not facilitated issuance of a title deed, so it was directed to execute the transfer, with a default provision for the Deputy Registrar to sign. Possession was to be given up, and the 2nd Defendant could be lawfully evicted. The alternative compensation claim was not pursued as primary relief was granted.

p. 5

Legal principles established

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  • The burden of proof lies on the party who alleges; a party claiming ownership of land must discharge the burden on a balance of probabilities.

Court orders

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  1. 1.An order directing the Defendants to execute the necessary transfer of the suit property being Nairobi/Block 129/723 to the Plaintiff within sixty (60) days from the date of the judgment, and in default the Deputy Registrar to sign the necessary documents to effect transfer in favour of the Plaintiff
  2. 2.An order directing the Defendants to give vacant possession of Nairobi/Block 129/723 to the Plaintiff, failing which the Plaintiff may use lawful measures to evict the 2nd Defendant
  3. 3.Costs of the suit and interest to the Plaintiff

Authorities

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Legislation

  • Evidence Act (Cap 80 Laws of Kenya)Section 107
  • Evidence Act (Cap 80 Laws of Kenya)Section 108

Cases cited (1)

  • Mbuthia Macharia v Anna Mutua Ndwiga & Another
    (2017) & KLR
Jurisdiction invoked
Original civil suit seeking transfer of land and vacant possession; constitutional/statutory basis not stated in the judgment

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, "Albert Kihianyu Gikaria v Mararui Farmers Company Limited & another [2022] KEELC 1382 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1382/eng@2022-02-17

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