Leonard Wafula Shikuku v Mark Juma Wafula & 1 other

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA LAND AND ENVIRONMEMNT CASE NO. 190 OF 2014 LEONARD WAFULA SHIKUKU ……...PLAINTIFF/APPLICANT VERSUS MARK JUMA WAFULA……….....DEFENDANT/RESPONDENT JUDGEMENT [1] The plaintiff brought this case against his own father. His claim is that his father promised to give him one acre out of Kimilili/Kibingei/4425. The plaintiff avers that his father took him to the Land Control and consented to give him one acre thereof as a gift. He says the transaction was approved by the Land Control Board. [2] However, after that consent the defendant changed his mind. He had land parcel Kimilili/Kibingei/4425 subdivided and he created Kimilili/Kibingei/4813-15 with the sole aim of denying the plaintiff the alleged land. The plaintiff says that the defendant has started to sell the resultant subdivisions. [3] The plaintiff now wants the said sub divisions in Kimilili/Kibingei 4813 to Kimilili/Kibingei/15 be cancelled and that the land do revert to the Original Kimilili/Kibingei/4425. He relied on his statement filed herein and the list of exhibits filed herein. He called no witnesses. The defendant did not opt to file any defence though served. [4] The plaintiff produced an application for land control consent, a consent to transfer Kimilili/Kibingei/4425 from Mark Juma Wafula to Leonard Shikuli Wafula for the whole of the land. Also enclosed was receipt No. 1256137 from Kenya Revenue Authority dated 13/5/2013. There was also a transfer from Mark Juma Wafula to Leonard Shikuku Wafula I/D No. 8783247 dated 2 nd May 2013 duly executed by the parties before Simiyu A. Makokha advocate. [5] All these documents were not disputed by the defendant. Once the land control consent was granted for the sale of Kimilili/Kibingei/4425 and a transfer signed by the vendor the beneficial interest in the property passed from the defendant to the plaintiff. The defendant had therefore no capacity to deal with Kimilili/Kibingei/4425. His attempt to sub divide the same and /or sell the resultant parcels was misconceived. He had no interest in the land he subdivided and/or sold. [6]As a result the parcels created by defendant as Kimilili/Kibingei/4813-15 must be cancelled. They were created by a person whose legal interest on the same had ceased. Those sub divisions shall be cancelled and the land shall revert to Kimilili/Kibingei/4425. The same shall be registered in the name of the plaintiff.

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