[2018] KEELC 2214 (KLR)

REPUBLI C OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT ELDORET

ELC NO. 396 OF 2012

AIBU WANJECHE SIKULU......................................................THE PLAINTIFF

VERSUS

DANIEL WANJALA.................................................................1ST DEFENDANT

DAVID KHAEMBA..................................................................2ND DEFENDANT

JUDGMENT

By a plaint dated 15th November, 2007 the plaintiff herein sued the defendants seeking for the following orders:-

l) For eviction and injunction

2) Costs of the suit

3) Any other relief that this court may deem fit to grant.

The Plaintiff filed an amended Plaint on the 6th February 2018 with the leave of the court whereby he pleaded that he is the sole owner of all that parcel of land known as KAKAMEGA/SANGO/191measuring 15 acres. He also pleaded to the effect that the Defendants are his nephews whom he accommodated on humanitarian ground on his parcel of land after their late mother was chased away from her matrimonial home by her husband sometime in 1987.

The Plaintiff further pleaded that he tried all means to have the Defendants move out of his land KAKAMEGA/SANGO/191but they adamantly refused necessitating the filing of this suit. The defendants were served with summons to enter appearance and only filed a memorandum of appearance and failed to file a defence. They were later served with an amended plaint but failed to file an amended defence.

Plaintiff’s Case

The plaintiff at the hearing adopted his statement and list of documents filed in court. It was his evidence that he is the sole owner of all that parcel of land known as KAKAMEGA/SANGO/191 measuring 15 acres which he bought in the year 1974 from one Arap Kamar (now Deceased). The plaintiff produced a copy of the title as an exhibit.

The plaintiff testified that around the year 1987 his late sister one Tina Nderema was chased away from her husband's home and together with her children who are the defendants came to stay with him. He stated that the sister died in 1991 leaving the defendants behind and that the community decided that the defendants go back to their father who has two parcels of land in Moi’s Bridge and Soy Sambu in Tongaren.

It was the plaintiff’s further evidence that the defendants have refused to move necessitating the filing of this suit. He therefore urged the court to grant orders for eviction and a permanent injunction against the defendants restraining them from interfering with the suit land . He also urged the court to grant costs of the suit.

Counsel’s Submission

Counsel for the plaintiff listed the following issues for determination by the court:

1. Whether the Defendants should be evicted from the Plaintiffs land?

2. Whether the Plaintiff has satisfied the tenets of the law for grant of an injunction against the Defendants?

3. Who should bear the costs of this suit?

In response to the 1st issue whether the defendants should be evicted from the suit land, Counsel submitted that the Plaintiff as the registered proprietor of the suit property has absolute rights over the suit property which includes a right to exclusive possession and use thereof. Counsel relied on the provisions of section 25 (l) and 26 (1) of the Land Registration Act, 2012 which provides as follows:

"25(1) The rights of a proprietor whether acquired on first registration or subsequent for valuable consideration or by an order of court shall not beliable to be defeated expect as provided in this Act and shall be held by the proprietor together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever but subject:

l. To leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and

2. To such liabilities, rights and interests as affect the same and are declared by section 28 not to noting on the register unless the controversy is expressed in the register,"

Section 26 (l) provides that:-

"26(1) The certificate of title issued by the registrar upon registration or to a purchaser of land upon transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as the proprietor of the land is the absolute and indefeasible owner subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate and the title of that proprietor shall not be subject to challenge, except:

a) On the grounds of fraud or misrepresentation to which the person is proved to be a party; or

b) Where the certificate or title has been acquired illegally, unprocedurally or through a corrupt abuse."

Mr. Mutei Counsel for the plaintiff submitted that the Defendants became trespassers from the minute the Plaintiff asked them to vacate his parcel of land and that the Plaintiff has proved ownership of the suit property by attaching title thereof. He further stated that the Plaintiff has also adduced evidence to the effect that the Defendants have no lawful or any justifiable cause for entering and remaining on the suit property as they have alternative land that belongs to their father in Tongaren.

Counsel therefore urged the court to find that the plaintiff has proved his case against the defendants on a balance of probability as the evidence is not disputed. He also submitted that the plaintiff had met the threshold for grant of injunctions as he had established that he is the registered owner of the suit land. Counsel cited the case of David Ngoge Alfons v Joshua Monyancha Kiyondi 2014] eKLR and Paul Cheruiyot Chepkonga v David Kimeto Kiptabus [2017] eKLR in support of the plaintiff’s case.

Analysis and determination

The issues for determination are as to whether the plaintiff has met the threshold for grant of a permanent injunction and whether he has proved his case against the defendants for grant of an eviction order. The plaintiff gave evidence and stated that he is the registered owner of the suit land measuring 15 acres or thereabout. He produced a copy of the title to the suit land to prove the same. The defendants were served with a hearing notice but failed to attend court hence the matter proceeded in their absence.

The registration of a person as a registered owner of land is prima facie evidence that he has absolute rights to the suit land unless it is proved that the same was acquired fraudulently as per section 26 of the Land Registration Act of 2012 which is not the case herein.

The defendants’ mother had been invited to stay on the suit land on humanitarian grounds but the defendants abused the hospitality after the death of their mother by refusing to move back to their biological father who has alternative land for them.

I find that the plaintiff has proved that the defendants are trespassers and have no legal claim on the suit land and should therefore be permanently restrained by way of an injunction from interfering with the Plaintiff’s peaceful enjoyment of the suit land.

I therefore order that the defendants do vacate parcel No. KAKAMEGA/SANGO/191 within 30 days failure of which eviction order to issue.

The defendants to pays costs of the suit.

Dated and delivered at Eldoret this 17th day of July, 2018.

M.A ODENY

JUDGE

Judgment read in open court in the presence of Miss Cheso holding brief for Mr. Juma for Plaintiff and in the absence of the defendants.

Mr. Koech: Court Assistant.