Kinoiyo Company Limited, Ibrahim Suraw Isaac, Abdi Mohammed Hassan, hereinafter referred to as the plaintiffs have come to court against Douglas Kamau Ngotho, Herman Nderi and Nakuru Land Registrar, hereinafter referred to as the defendants by way of plaint seeking orders that:-
1. There be a declaration that the plaintiffs are the beneficial and registered owners of parcel No. Nakuru Municipality Block 11/128.
2. A declaration that the registration of the 1st defendant as the absolute owner of Nakuru Municipality Block 12/290 and 291 is illegal and hence null and void.
3. A declaration that parcels No.Nakuru Municipality Block 12/290 and 291 are resultant of unauthorized, unprocedural and irregular subdivision of Nakuru Municipality Block 12/128 and. are thus non- existent, illegal , null and void and.
4. An order for revocation and/or cancellation of the titles in the names of the 1st defendant and consequently an order for rectification of the register.
5. An order for permanent injunction restraining the 1st and 2nd defendants either by themselves, servants, agents or anybody claiming under them howsoever from, selling, transferring/ disposing, alienating, constructing or continuing with Construction or in any way dealing with Nakuru Municipality Block 12/128 and the resultant subdivisions.
6. Orders of eviction.
7. Mesne profit.
8. Costs.
The plaintiff alleges that at all material times relevant to the suit, the 1st plaintiff was the registered and absolute owner of Nakuru Municipality Block 2/128 from 1997 until the 3rd October, 2017, when the same was transferred to the 2nd and 3rd Plaintiffs who are now the registered as absolute proprietors thereof. The suit property was allocated to the 1st Plaintiff on the 31st of March 1995 and he accepted the conditions stipulated in the allotment and made payment of all the required fees, rates, rent and premium. In the year 2001, the 1st Plaintiff applied for subdivision of the suit property into two plots resulting in the creation of plot Nos. 290 and 291. The subdivision scheme was approved vide letters of the 22nd August 2001.
The 1st Plaintiff was to pay a total of Kshs. 87,364 to be able to register the subdivisions and obtain titles which fees were forwarded to the company's Counsel, the registration of the proposed subdivisions, however, did not fall through because of political interference.
The 1st Plaintiff instituted Miscellaneous Civil Application No. 421 of 2004 against the Nakuru District works officer and Engineer C.M Mukuva and the application was decided in its favour. Vide an agreement for sale of the 11th September; 2017 the 1st plaintiff sold the suit land to the 2nd and 3rd Plaintiffs and on the 3rd October 2017, transferred to the same and they were consequently registered as the absolute proprietors thereof. Prior to the sale and transfer to the 2nd and the 3rd plaintiffs, the 1st plaintiff had never sold or transferred the property or resultant subdivision to any other person.
0n or about the 8th September, 2014, the 1st and 2nd defendants in collusion with the 3rd defendant, without any color of right, illegally and fraudulently caused the 1st Defendant to be registered as the proprietor of parcel Nos. Nakuru Municipality Block 12/290 and 291.
It is further the plaintiff's contention that parcel Nos. Nakuru Municipality Block 12/290 and 291 are resultants of illegal subdivisions by the defendants and are therefore illegal and hence null and void.
The plaintiffs further contend that the 1st and 2nd Defendants have illegally, without any color of right or authority of the plaintiff entered and/or trespassed into the suit property and have erected illegal structures thereon. The 1st plaintiff has sold and transferred the suit property to the 2nd and 3rd plaintiffs, but is unable to give vacant possession as a result of the 1st and 2nd defendants illegal occupation and registration thereof. The plaintiffs are bona fide holders of Title for value, of the suit property being Nakuru Municipality Block 2/128, whose rights to own and enjoy the property are now threatened by a fraudster being the 1st defendant and 2nd defendants. That as a result of the defendants' illegality, the plaintiffs have suffered immense loss.
The 1st and 2nd defendants filed a statement of defence and counter- claim. In the defence they deny that the 1st plaintiff is the registered owner of the suit property Nakuru /Municipality/2/128.
The defendants are strangers to the allegation that the 1st plaintiff was allocated the same on 31st March 1995 and that the same was sub-divided into plots No 290 and 291. They are strangers to all the allegations of proprietary interest of 1st plaintiff. They allege that they are strangers to any allegations of fraud made by the plaintiffs. They pray that the suit be dismissed with costs.
In the counter-claim the 1st defendant now plaintiff aver that he bought the suit properties Nakuru/Municipality/Block 12/290 and 291 for a consideration from Stephen Kiprono Chumo the registered owner of the property Nakuru/Municplaity12/128 vide a lease registered on 11th May 1995. The 1st Defendant now Plaintiff avers that he took possession of the suit lands immediately and has been in occupation thereof till the Plaintiffs now Defendants commenced laying unfounded claims over the same.
The Defendants now Plaintiffs contend that there is no property in existence known as Nakuru Municipality Block 12/128 as there was subdivision of the said property to give rise to Nakuru Municipality Block 12/290 and 291.
The Defendants aver that on the 6th day of Octover,2017, the 1st Plaintiff (now 1st Defendant) purported to advertise vide Kenya Gazette Notice No.9817 the loss of the Certificate of lease in respect of parcel Number Nakuru Municipality Block 12/280 which lease was sub-divided to give rise to Nakuru Municipality Block12/290 and 291,
The Defendants aver that the 1st Defendant sought to collude with the Nakuru Land Registrar to issue a Certificate of lease fraudulently to defeat or defraud the 1st Plaintiff of his rights to the parcels of land Nakuru Municipality Block 12/290 and 291. The Particulars of fraud are:-
(a) Purporting to issue a Certificate of lease as a replacement to the 1st Plaintiff.
(b)Purporting to issue a Certificate of lease in respect of Nakuru Municipality Block 12/128 whereas the property had been subdivided and lease certificates issued to the 1st Defendant.
(b) Purporting to advertise the loss of the Certificate in respect of Nakuru Municipality Block 12/280 whereas there had already been issued Certificates of lease in respect of the subdivisions in favour of the 1StDefendant.
The 1st Defendant (now 1st Plaintiff) avers that he has been in possession of the suit parcels since his registration as the absolute proprietor and has developed the same. The 1st Plaintiff contends that having acquired the property as aforesaid is in possession and occupation thereof, and have undertaken extensive developments thereon as the rightful proprietor. The 1st defendant now plaintiff in the counter claim prays for a declaration that the 1st Defendant now Plaintiff is the lawful proprietor of Nakuru Municipality Block 12/290 and 291.
He further prays for an order for rectification of the register by cancellation of the Certificate of Lease issued on the 31st day of October, 2017 in the name of Ibrahim Suraw Isaac and Abdi Mohamed Hassan in respect of Nakuru Municipality Block 12/128.
Moreover, he prays for an order that the 1st and 2nd Plaintiffs (now 2nd and 3rd Defendants) surrender to the Land Registrar, Nakuru the original Certificate of Lease issued to them in respect to Nakuru Municipality Block 12/128 for cancellation.
Lastly, an order of perpetual injunction restraining the Plaintiffs now Defendants by themselves, their servants, agents, employees, assigns and or persons claiming authority under them from trespassing upon, entering, remaining, dealing in or otherwise in any other manner whatsoever interfering with Nakuru Municipality Block 12/290 AND 291 arising from the subdivision of Nakuru Municipality Block 12/218.
The Land Registrar Nakuru filed defence which is a general denial and very evasive of the true facts of the matter. He denies any wrong doing but adds that if the transaction occurred, it was after due diligence by may be Nakuru Land Registrar and with utmost honest and in good faith. He states that if the transaction occurred, it was due to misrepresentation of the facts by the 1st defendant.
When the matter came up for hearing, the 2nd plaintiff came to court and gave evidence in the absence of the defendants. The 1st defendant was aware of the hearing date having been present on 12th March 2024 when the date was given. The 2nd plaintiff Ibrahim Suraw Isaac testified that based on the negotiations that he had with the 1st plaintiff, negotiations of which culminated in the sale agreement of the 11th day of September, 2017, and on the documents supplied to him thereafter, the 1st Plaintiff is the registered owner of all that parcel of land known and fully described as Nakuru Municipality Block 12/128 measuring approximately 0.6022 acres, and holds a certificate of title to that effect. The parcel of land was allocated to the 1st Plaintiff on the 31st of March 1995.
The 1st Plaintiff subsequently made payment of all the required fees, rates, rent and premium. The 1st plaintiff further informed him that in the year 2001 the 1st Plaintiff applied for subdivision of the suit property into two plots resulting in the creation of plot Nos.290 and 291. The subdivision scheme was approved vide letters of the 22nd August 2001. The 1st Plaintiff was to pay a total of Kshs,87,364 to be able to register the subdivisions and obtain titles which fee was forwarded to the company's Counsel.
The 1st plaintiff also informed him that in the year 2004, The Narc Government in guise that anybody owning a former Government property had corruptly or illegally acquired the same, attempted to take over the suit property vide eviction notices. This caused a stall in the registration of the proposed subdivisions.
In the Year 2016, when the company decided to sell the property, they found out that one Herman Nderi, a former Mayor of the defunct Municipal Council of Nakuru, who owns a neighboring plot had encroached into the property and started constructing some structures. He thereafter held discussions with Mr. Nderi who at some point requested to be compensated for the cost of the construction undertaken and on that understanding they agreed to proceed with the sale. Vide an agreement for sale of the 11th September, 2017 the company sold the suit to the 3rd plaintiff and himself. The 1st Plaintiff had supplied copies of the certificate of lease to the 2nd and 3rd plaintiffs, but they were unable to get certificate of official search.
The 1st plaintiff further informed them that its agents had met the Land Registrar over unavailability of the official search and that the Registrar did- inform them that the parcel file and the white card were missing and had thus requested that they submit the relevant documents for purposes of reconstruction of the same.
On the 3rd October, 2017, the suit property was transferred to the 3rd plaintiff and himself. The 1st plaintiff, prior to the safe, reliably informed him that it had never sold the property to any third party. It is on this basis that they together with the 1st plaintiff, a lodged a complaint with the Director of Criminal Investigations of the illegal registration of the 1st defendant herein as the owners of Plots No.290 and 291 and the investigation are ongoing.
The sale and transfer of the suit property to the 3rd plaintiff and I has already been completed, through the1st defendant has been a barrier to our peaceful possession and occupation thereof.
The defendants did not attend court though they were served.
I have considered the evidence on record and the submission by the plaintiff and do find that the evidence by the plaintiff is not controverted where the plaintiff gives evidence and the defendants do not attend to counter the same, the law is very clear that failure by the defence to call evidence impacts negatively on their case.
The issue of uncontroverted evidence was addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) -v-Thomas Ondiki Oduor & Another 2019 eKLR where he stated:-
“22. There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.
23. In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.
24. Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
25. In Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
26. In light of all these authorities, I am of the view that the position taken by the trial magistrate in dismissing the suit was not warranted. I would reverse the lower court’s determination and substitute with this court’s determination, that the plaintiffs proved their case on balance of probabilities, and are entitled to damages.
27. In this regard, no evidence of apportionment of liability being available, 100% liability is attributed to the defendants jointly and severally.”
In this case, I do find that the plaintiffs evidence was not controverted and therefore they have proved their case on a balance of probabilities that Douglas Kamau Ngotho fraudulently acquired title to Nakuru/Municipality/Block12/290 and 12/291 and has in-fact been found guilty of the offence of forgery contrary to section 350 (1) of the Penal code and was sentenced to 1 year each for 7 counts with an alternative of a fine of not less than 450,000/= . Apart from the conviction and sentence the land records show that the properties Nakuru /Municipality /12/128 was allocated to the 1st plaintiff from 1997 to 3rd October2017 when it was transferred to the 2nd and 3rd plaintiffs. I do find that the acquisition by the 1st and 2nd defendant on 8th September 2014 was fraudulent as they did not acquire the same from the plaintiffs but from an obscure individual known as Stephen Kiprono Chumo who they did not sue as a defendant. The upshot of the above is that the plaintiff succeeds in the suit and I do issue the following orders:-
1. A declaration that the registration of the 1st defendant as the absolute owner of Nakuru Municipality Block 12/290 and 291 is illegal and hence null and void.
2. A declaration that parcels No.Nakuru Municipality Block 12/290 and 291 are resultant of unauthorized, unprocedural and irregular subdivision of Nakuru Municipality Block 12/128 and. are thus non- existent, illegal , null and void and.
3. An order for revocation and/or cancellation of the titles in the names of the 1st defendant and consequently an order for rectification of the register.
4. An order for permanent injunction restraining the 1st and 2nd defendants either by themselves, servants, agents or anybody claiming under them howsoever from, selling, transferring/ disposing, alienating, constructing or continuing with Construction or in any way dealing with Nakuru Municipality Block 12/128 and the resultant subdivisions.
5. The defendants to vacate the suit property within 90 days failure of which they be evicted.
6. Costs of the suit to the plaintiff.
7. The defendant did not attend court to prove the counter- claim hence the same is dismissed with costs.
1. There be a declaration that the plaintiffs are the beneficial and registered owners of parcel No. Nakuru Municipality Block 11/128.
2. A declaration that the registration of the 1st defendant as the absolute owner of Nakuru Municipality Block 12/290 and 291 is illegal and hence null and void.
3. A declaration that parcels No.Nakuru Municipality Block 12/290 and 291 are resultant of unauthorized, unprocedural and irregular subdivision of Nakuru Municipality Block 12/128 and. are thus non- existent, illegal , null and void and.
4. An order for revocation and/or cancellation of the titles in the names of the 1st defendant and consequently an order for rectification of the register.
5. An order for permanent injunction restraining the 1st and 2nd defendants either by themselves, servants, agents or anybody claiming under them howsoever from, selling, transferring/ disposing, alienating, constructing or continuing with Construction or in any way dealing with Nakuru Municipality Block 12/128 and the resultant subdivisions.
6. Orders of eviction.
7. Mesne profit.
8. Costs.
The plaintiff alleges that at all material times relevant to the suit, the 1st plaintiff was the registered and absolute owner of Nakuru Municipality Block 2/128 from 1997 until the 3rd October, 2017, when the same was transferred to the 2nd and 3rd Plaintiffs who are now the registered as absolute proprietors thereof. The suit property was allocated to the 1st Plaintiff on the 31st of March 1995 and he accepted the conditions stipulated in the allotment and made payment of all the required fees, rates, rent and premium. In the year 2001, the 1st Plaintiff applied for subdivision of the suit property into two plots resulting in the creation of plot Nos. 290 and 291. The subdivision scheme was approved vide letters of the 22nd August 2001.
The 1st Plaintiff was to pay a total of Kshs. 87,364 to be able to register the subdivisions and obtain titles which fees were forwarded to the company's Counsel, the registration of the proposed subdivisions, however, did not fall through because of political interference.
The 1st Plaintiff instituted Miscellaneous Civil Application No. 421 of 2004 against the Nakuru District works officer and Engineer C.M Mukuva and the application was decided in its favour. Vide an agreement for sale of the 11th September; 2017 the 1st plaintiff sold the suit land to the 2nd and 3rd Plaintiffs and on the 3rd October 2017, transferred to the same and they were consequently registered as the absolute proprietors thereof. Prior to the sale and transfer to the 2nd and the 3rd plaintiffs, the 1st plaintiff had never sold or transferred the property or resultant subdivision to any other person.
0n or about the 8th September, 2014, the 1st and 2nd defendants in collusion with the 3rd defendant, without any color of right, illegally and fraudulently caused the 1st Defendant to be registered as the proprietor of parcel Nos. Nakuru Municipality Block 12/290 and 291.
It is further the plaintiff's contention that parcel Nos. Nakuru Municipality Block 12/290 and 291 are resultants of illegal subdivisions by the defendants and are therefore illegal and hence null and void.
The plaintiffs further contend that the 1st and 2nd Defendants have illegally, without any color of right or authority of the plaintiff entered and/or trespassed into the suit property and have erected illegal structures thereon. The 1st plaintiff has sold and transferred the suit property to the 2nd and 3rd plaintiffs, but is unable to give vacant possession as a result of the 1st and 2nd defendants illegal occupation and registration thereof. The plaintiffs are bona fide holders of Title for value, of the suit property being Nakuru Municipality Block 2/128, whose rights to own and enjoy the property are now threatened by a fraudster being the 1st defendant and 2nd defendants. That as a result of the defendants' illegality, the plaintiffs have suffered immense loss.
The 1st and 2nd defendants filed a statement of defence and counter- claim. In the defence they deny that the 1st plaintiff is the registered owner of the suit property Nakuru /Municipality/2/128.
The defendants are strangers to the allegation that the 1st plaintiff was allocated the same on 31st March 1995 and that the same was sub-divided into plots No 290 and 291. They are strangers to all the allegations of proprietary interest of 1st plaintiff. They allege that they are strangers to any allegations of fraud made by the plaintiffs. They pray that the suit be dismissed with costs.
In the counter-claim the 1st defendant now plaintiff aver that he bought the suit properties Nakuru/Municipality/Block 12/290 and 291 for a consideration from Stephen Kiprono Chumo the registered owner of the property Nakuru/Municplaity12/128 vide a lease registered on 11th May 1995. The 1st Defendant now Plaintiff avers that he took possession of the suit lands immediately and has been in occupation thereof till the Plaintiffs now Defendants commenced laying unfounded claims over the same.
The Defendants now Plaintiffs contend that there is no property in existence known as Nakuru Municipality Block 12/128 as there was subdivision of the said property to give rise to Nakuru Municipality Block 12/290 and 291.
The Defendants aver that on the 6th day of Octover,2017, the 1st Plaintiff (now 1st Defendant) purported to advertise vide Kenya Gazette Notice No.9817 the loss of the Certificate of lease in respect of parcel Number Nakuru Municipality Block 12/280 which lease was sub-divided to give rise to Nakuru Municipality Block12/290 and 291,
The Defendants aver that the 1st Defendant sought to collude with the Nakuru Land Registrar to issue a Certificate of lease fraudulently to defeat or defraud the 1st Plaintiff of his rights to the parcels of land Nakuru Municipality Block 12/290 and 291. The Particulars of fraud are:-
(a) Purporting to issue a Certificate of lease as a replacement to the 1st Plaintiff.
(b)Purporting to issue a Certificate of lease in respect of Nakuru Municipality Block 12/128 whereas the property had been subdivided and lease certificates issued to the 1st Defendant.
(b) Purporting to advertise the loss of the Certificate in respect of Nakuru Municipality Block 12/280 whereas there had already been issued Certificates of lease in respect of the subdivisions in favour of the 1StDefendant.
The 1st Defendant (now 1st Plaintiff) avers that he has been in possession of the suit parcels since his registration as the absolute proprietor and has developed the same. The 1st Plaintiff contends that having acquired the property as aforesaid is in possession and occupation thereof, and have undertaken extensive developments thereon as the rightful proprietor. The 1st defendant now plaintiff in the counter claim prays for a declaration that the 1st Defendant now Plaintiff is the lawful proprietor of Nakuru Municipality Block 12/290 and 291.
He further prays for an order for rectification of the register by cancellation of the Certificate of Lease issued on the 31st day of October, 2017 in the name of Ibrahim Suraw Isaac and Abdi Mohamed Hassan in respect of Nakuru Municipality Block 12/128.
Moreover, he prays for an order that the 1st and 2nd Plaintiffs (now 2nd and 3rd Defendants) surrender to the Land Registrar, Nakuru the original Certificate of Lease issued to them in respect to Nakuru Municipality Block 12/128 for cancellation.
Lastly, an order of perpetual injunction restraining the Plaintiffs now Defendants by themselves, their servants, agents, employees, assigns and or persons claiming authority under them from trespassing upon, entering, remaining, dealing in or otherwise in any other manner whatsoever interfering with Nakuru Municipality Block 12/290 AND 291 arising from the subdivision of Nakuru Municipality Block 12/218.
The Land Registrar Nakuru filed defence which is a general denial and very evasive of the true facts of the matter. He denies any wrong doing but adds that if the transaction occurred, it was after due diligence by may be Nakuru Land Registrar and with utmost honest and in good faith. He states that if the transaction occurred, it was due to misrepresentation of the facts by the 1st defendant.
When the matter came up for hearing, the 2nd plaintiff came to court and gave evidence in the absence of the defendants. The 1st defendant was aware of the hearing date having been present on 12th March 2024 when the date was given. The 2nd plaintiff Ibrahim Suraw Isaac testified that based on the negotiations that he had with the 1st plaintiff, negotiations of which culminated in the sale agreement of the 11th day of September, 2017, and on the documents supplied to him thereafter, the 1st Plaintiff is the registered owner of all that parcel of land known and fully described as Nakuru Municipality Block 12/128 measuring approximately 0.6022 acres, and holds a certificate of title to that effect. The parcel of land was allocated to the 1st Plaintiff on the 31st of March 1995.
The 1st Plaintiff subsequently made payment of all the required fees, rates, rent and premium. The 1st plaintiff further informed him that in the year 2001 the 1st Plaintiff applied for subdivision of the suit property into two plots resulting in the creation of plot Nos.290 and 291. The subdivision scheme was approved vide letters of the 22nd August 2001. The 1st Plaintiff was to pay a total of Kshs,87,364 to be able to register the subdivisions and obtain titles which fee was forwarded to the company's Counsel.
The 1st plaintiff also informed him that in the year 2004, The Narc Government in guise that anybody owning a former Government property had corruptly or illegally acquired the same, attempted to take over the suit property vide eviction notices. This caused a stall in the registration of the proposed subdivisions.
In the Year 2016, when the company decided to sell the property, they found out that one Herman Nderi, a former Mayor of the defunct Municipal Council of Nakuru, who owns a neighboring plot had encroached into the property and started constructing some structures. He thereafter held discussions with Mr. Nderi who at some point requested to be compensated for the cost of the construction undertaken and on that understanding they agreed to proceed with the sale. Vide an agreement for sale of the 11th September, 2017 the company sold the suit to the 3rd plaintiff and himself. The 1st Plaintiff had supplied copies of the certificate of lease to the 2nd and 3rd plaintiffs, but they were unable to get certificate of official search.
The 1st plaintiff further informed them that its agents had met the Land Registrar over unavailability of the official search and that the Registrar did- inform them that the parcel file and the white card were missing and had thus requested that they submit the relevant documents for purposes of reconstruction of the same.
On the 3rd October, 2017, the suit property was transferred to the 3rd plaintiff and himself. The 1st plaintiff, prior to the safe, reliably informed him that it had never sold the property to any third party. It is on this basis that they together with the 1st plaintiff, a lodged a complaint with the Director of Criminal Investigations of the illegal registration of the 1st defendant herein as the owners of Plots No.290 and 291 and the investigation are ongoing.
The sale and transfer of the suit property to the 3rd plaintiff and I has already been completed, through the1st defendant has been a barrier to our peaceful possession and occupation thereof.
The defendants did not attend court though they were served.
I have considered the evidence on record and the submission by the plaintiff and do find that the evidence by the plaintiff is not controverted where the plaintiff gives evidence and the defendants do not attend to counter the same, the law is very clear that failure by the defence to call evidence impacts negatively on their case.
The issue of uncontroverted evidence was addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) -v-Thomas Ondiki Oduor & Another 2019 eKLR where he stated:-
“22. There are any authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements.
23. In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that it is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.
24. Similarly, in Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.
25. In Interchemie EA Limited vs. Nakuru Veterinary Centre Limited Nairobi (Milimani) HCCC No. 165B of 2000, Mbaluto, J. held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. Mulwa J, however in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR stated:
“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.
26. In light of all these authorities, I am of the view that the position taken by the trial magistrate in dismissing the suit was not warranted. I would reverse the lower court’s determination and substitute with this court’s determination, that the plaintiffs proved their case on balance of probabilities, and are entitled to damages.
27. In this regard, no evidence of apportionment of liability being available, 100% liability is attributed to the defendants jointly and severally.”
In this case, I do find that the plaintiffs evidence was not controverted and therefore they have proved their case on a balance of probabilities that Douglas Kamau Ngotho fraudulently acquired title to Nakuru/Municipality/Block12/290 and 12/291 and has in-fact been found guilty of the offence of forgery contrary to section 350 (1) of the Penal code and was sentenced to 1 year each for 7 counts with an alternative of a fine of not less than 450,000/= . Apart from the conviction and sentence the land records show that the properties Nakuru /Municipality /12/128 was allocated to the 1st plaintiff from 1997 to 3rd October2017 when it was transferred to the 2nd and 3rd plaintiffs. I do find that the acquisition by the 1st and 2nd defendant on 8th September 2014 was fraudulent as they did not acquire the same from the plaintiffs but from an obscure individual known as Stephen Kiprono Chumo who they did not sue as a defendant. The upshot of the above is that the plaintiff succeeds in the suit and I do issue the following orders:-
1. A declaration that the registration of the 1st defendant as the absolute owner of Nakuru Municipality Block 12/290 and 291 is illegal and hence null and void.
2. A declaration that parcels No.Nakuru Municipality Block 12/290 and 291 are resultant of unauthorized, unprocedural and irregular subdivision of Nakuru Municipality Block 12/128 and. are thus non- existent, illegal , null and void and.
3. An order for revocation and/or cancellation of the titles in the names of the 1st defendant and consequently an order for rectification of the register.
4. An order for permanent injunction restraining the 1st and 2nd defendants either by themselves, servants, agents or anybody claiming under them howsoever from, selling, transferring/ disposing, alienating, constructing or continuing with Construction or in any way dealing with Nakuru Municipality Block 12/128 and the resultant subdivisions.
5. The defendants to vacate the suit property within 90 days failure of which they be evicted.
6. Costs of the suit to the plaintiff.
7. The defendant did not attend court to prove the counter- claim hence the same is dismissed with costs.