Wycliffe Lukase & another v Njiru Mihang’o Farmers Housing Scheme & another [2019] KEELC 1095 (KLR)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NAIROBI ELC CIVIL CASE NO. 1088 OF 2016 WYCLIFFE LUKASE…………………………………………...… 1ST PLANITIFF BETTY HABWE…………………………………………………….2ND PLAINTIFF VERSUS NJIRU MIHANG’O FARMERS HOUSING SCHEME………...1ST DEFENDANT LIYO CHANDO…………………………………………………..2ND DEFENDANT JUDGEMENT 1. The plaintiffs have filed this suit against the defendants jointly and severally seeking:(a) A mandatory order restraining the 1st and 2nd defendants, their agents and or servants from entering, trespassing, further dealings, development, registration and or transfer of Plot No. 633 within MIHINGO AREA to any person, body and or any unsuspecting buyers. (b) An order directing the 1 st and 2nd defendant to issue title in favour of the plaintiffs and/or in the alternative the plaintiffs be refunded the purchase price at current market rates upon valuation. (c) Costs of this suit and interest at the courts rate. 2. Upon being served with copies of plaint and summons to enter appearance the defendants neglected to enter appearance and or file defence within the prescribed period. This matter then proceeded for formal proof. 3. PW1, Wycliffe Lukase Ludeki the 1st plaintiff in this case adopted his witness statement dated 7 th September 2018. He told the court that he together with the 2nd plaintiff purchased Plot NO. 633 from the 1 st defendant on 7th October 2014. That upon purchasing the plot they were issued with plot certificate no. 914 and Ballot NO. 756 by the 1 st defendant. They paid Kshs.600,000 as consideration and a further Kshs.35,000 as fee for building plans. 4. He further told the court that they took possession of the said parcel of land. They were however surprised on 3 rd September 2016 when they met the 2nd defendant at the suit premises claiming to have purchased the said parcel of land. The 2 nd defendant had started developing the suit premises. 5. In support of their case the plaintiffs relied on the following documents which were produced as exhibit:- A sale agreement dated 7 th October 2014 exhibit P1, plot certificate no. 914 –Exhibit P2, plot ballot no 756 – Exhibit P3, receipt for building plans-Exhibit P4, Stephen Musila Kamulu’s ballot certificate-Exhibit P4, photographs exhibit P6, Bankers cheque for Kshs.500,000 Exhibit P7. 6. The plaintiffs’ case is uncontroverted. The issue for determination is whether the plaintiffs are entitled to and are bonafide purchasers for value of plot no. 633. From the exhibit produced by the plaintiffs, I am satisfied that they are the bonafide purchasers for value of the said parcel of land. I am satisfied that the 1 st defendant issued them with Plot Certificate NO. 914 upon payment of the full purchase price. It appears the 1st defendant later intentionally and fraudulently sold the same parcel of land to the 2 nd defendant without disclosing the initial sale to the plaintiffs. 7. As stated earlier, the plaintiffs’ case is uncontroverted. I find that they are entitled to the prayers sought. I find that the plaintiffs have

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