Koech v Langat

3. On 26th July, 2023 the case came up for hearing but the Plainti was absent. The court dismissed the Plainti’s case with costs and proceeded to hear the Defendant’s now Plainti’s Counter-claim. Plainti ’s Case 4. Andrew Johnson Kamau herein testied as PW1 where he produced his statement led on 14/7/2015 and the same was adopted as his evidence in chief. He stated that he had a lot of documents which he produced as PEX 1-PEX 6. PEX 2 - original title, PEX 3 -sale agreement dated 31/10/2014, PEX 4 authority to sell, PEX 5-ID, PEX – 6 – chief’s letter and PEX 7-Authority note as well as IDs PEX 9 (i)(VII). PW1 stated that he lives in Nyari and knows the Defendant as he sold him land at Olengurone. He further testied that David’s title is fake and should be cancelled. He testied that his mother did not give any title to anybody. He added that their mother is alive and is 105 years old. 5. William Ndii Itundu testied as PW2. He produced his statement led on 14/7/2015 and the same was adopted as his evidence in chief. He testied that he sold the land to the Defendant. Raymond Kibet Langat the Defendant testied ad PW3. He testied that he is a farmer and lives at Olenguruone. He produced his witness statement dated 14/7/2015 which was adopted as his evidence in chief. He testied that the Plainti does not live on the land as the land is in the name of Wambura. He testied that there is a caveat and he had seen the original title. That marked the close of the Plainti’s Counterclaim. Submissions 6. The Plainti did not le any submissions. Analysis and Determination 7. 8. I have considered the pleadings and the evidence on record and I am of the view that the following issues need to be determined: a. Whether the Plainti is entitled to the orders sought in the Counter-claim. b. Which party should bear the costs of the suit? The Plainti gave evidence as to how he acquired the suit property. He explained how he purchased the same from PW1. He produced copies of the sale agreements dated 12th March, 2014 and 31st October, 2014 respectively, authority to sell land from the proprietor Wambura Itundu Mukanda and the Certicate of Title. In the case of National Bank of Kenya Ltd Vs Pipeplastic Samkolit (K) Ltd & Another, Civil Appeal No.95 of 1999 (2001) KLR 112 (2002) EA 503, the Court held that: “ A Court of law cannot re-write a contract between the parties. The parties are bound by the terms of their contract unless coercion, fraud or undue inuence are pleased and proved”. 9. From the evidence produced, this court nds that the Plainti indeed purchased the suit land. The sale agreements dated 12th March, 2014 and 31st October, 2014 respectively as well as the authority note dated 6th March, 2014 by the proprietor of the suit land is sucient evidence that that the sale was valid. The sale agreement was never challenged and thus remains the only legal proof that the Plainti bought the suit property. 10. The Plainti now Defendant was given an opportunity to advance his case suit but he chose not to and therefore the Plainti’s Counter-claim remains uncontroverted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20666/eng@2023-10-12 2

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11. In the case of Shaneebal Limited Vs County Government of Machakos [2018] eKLR, the Learned Judge cited with approval the decision in Karuru Munyororo Vs Joseph Ndumia Murage & Another Nyeri HCCC No. 95 of 1988, wherein it was held that; “ The Plainti proved on a balance of probability that she was entitled to the orders sought in the plaint and in the absence of the Defendants and or their counsel to cross-examine her on the evidence, the Plainti’s evidence remained unchallenged and uncontroverted. It was thus credible and it is the kind of evidence that a court of law should be able to act upon”. 12. In the circumstance having established that the Plainti indeed purchased the suit property coupled with the fact that his evidence remained uncontroverted, nothing is easier than to declare that the Plainti having legally purchased the land known as Olenguruone/chepakundi/835 is now the legal owner. 13. Having then carefully considered the available evidence, this court nds that the Plainti has proved his case on the required standard of balance of probabilities and is therefore entitled to the orders sought. 14. Consequently, this court allows the Counter-claim and enters Judgment for the Plainti against the Defendant in the following terms:a. The Plainti is the legal owner of the suit property Olenguruone/chepakundi/835 b. An order for cancellation of the Plainti now Defendant’s title deed and rectication of the register to read the name of Wambura Itundu Mukanda. c. The Plainti is awarded costs of the suit. It is so ordered. JUDGMENT DATED SIGNED AND DELIVERED ON THE 12TH OF OCTOBER 2023. A.O. OMBWAYO JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20666/eng@2023-10-12 3

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