[2010] KEHC 1714 (KLR)
The court found that the Plaintiff had proved, on a balance of probabilities, that he is the registered and bona fide proprietor of the suit property. The title deed produced in evidence established his ownership. The Defendants, having failed to enter appearance or file a defence, were deemed to have admitted the...
Source-derived case information.
- Citation
- [2010] KEHC 1714 (KLR)
- Parties
- Plaintiff: Amos Wamunyu; Defendant: Nyae Kadungo Nyae & 16 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 392 of 2009
- Procedural Posture
- Civil Case / Formal Proof After Interlocutory Judgment
- Outcome
- Plaintiff's suit allowed in part; prayers (a), (b), (d), and (e) granted; prayer for general damages declined; costs awarded to Plaintiff.
- Legal Topics
- Trespass to Land, Eviction Orders, Title Deeds, Default Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Amos Wamunyu
Plaintiff
Nyae Kadungo Nyae & 16 Others
Defendant
Procedural Posture
Civil Case / Formal Proof After Interlocutory Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful proprietor of the suit property and entitled to exclusive possession.
- 2 Whether the Defendants trespassed onto the Plaintiff's land without consent.
- 3 Whether the Plaintiff is entitled to eviction orders and permanent injunction against the Defendants.
Ratio Decidendi
The court found that the Plaintiff had proved, on a balance of probabilities, that he is the registered and bona fide proprietor of the suit property. The title deed produced in evidence established his ownership. The Defendants, having failed to enter appearance or file a defence, were deemed to have admitted the Plaintiff's claim. Their occupation of the land was unauthorized and amounted to trespass. The Plaintiff was therefore entitled to the declaratory and injunctive reliefs sought, including eviction of the Defendants. However, the claim for general damages for trespass was declined as it was not substantiated by evidence.
Court Disposition
Plaintiff's suit allowed in part; prayers (a), (b), (d), and (e) granted; prayer for general damages declined; costs awarded to Plaintiff.
Orders
- Declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit property.
- Declaration that the Defendants are not entitled to remain on the suit property.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Case 392 of 2009
AMOS WAMUNYU ……….………………..…..PLAINTIFF
VERSUS
NYAE KADUNGO NYAE & 16 OTHERS ………………………………... DEFENDANTS
***************************
JUDGEMENT
By this plaint filed in court on 10th November 2009 the Plaintiff AMOS WAMUNYU seeks inter alia the following orders
”(a)A declaration that the Plaintiff is entitled to exclusive and unimpeded right of possession and occupation of the suit property.
(b)A declaration that the Defendants whether by themselves, or their servants or agents or otherwise howsoever, are not entitled to remainon the suit property.
(d)A permanent injunction restraining the Defendants, whether by themselves or their servants or agents howsoever from remaining onor continuing in occupation of the suit property.
(e)Vacant possession of the suit property.
(f)General damages for trespass
(g)Costs of this suit together with interest therein at such rate and for such period of time as this Honourable Court may deem fit to grant.
(h)Any such order that this Honourable court may deem appropriate”
The Defendants NYAE KADUNGO NYAE and sixteen others were each duly served with notices to enter appearance but all failed to comply within the specified time.On 10th March 2010 the court entered interlocutory judgement as against all seventeen (17) Defendants.The matter came up before me for formal proof on 26th April 2010.
The Plaintiff told the court in his evidence that he is the registered proprietor of all that piece of land known as KWALE/KIWEGU/JEGO/47 measuring approximately 162. 0 hectares located in Kwale District, Coast Province(hereinafter referred to as the ‘suit property’).The Plaintiff avails to court the Title Deed for the suit property as an exhibit to prove his ownership of the same Pexb1. He states that in the year 2006 the 17 Defendants illegally entered the suit property and began to live thereon.The Plaintiff’s attempts to get the Defendants to leave were futile as they turned hostile.He has therefore been deprived of quiet enjoyment of his property leading him to file this present suit.He now asks for eviction orders to compel the 17 Defendants to leave the land.
As stated earlier this matter came up merely for formal proof.The 17 Defendants had failed to either enter appearance or file their defences within the required time and thus interlocutory judgement was entered against them.The Plaintiff has satisfied this court that he is the legal and bona fide proprietor of the suit property.The Title Deed availed in court clearly indicates that he is the registered proprietor.The Defendants invaded the suit property without the authority or consent of the Plaintiff.His efforts to get them to leave turned to nought.I am satisfied that the Plaintiff herein has proved his claim on a balance of probability.This suit succeeds and I do grant prayers (a), (b), (d) and (e) of the same.The Plaintiff made a claim for general damages for trespass but he did not advance this claim in his evidence.I therefore decline to grant any orders on this prayer (f).costs are awarded to the Plaintiff.
Dated and Delivered atMombasathis 26th day of May 2010.
M. ODERO
JUDGE
Read in open court in the presence of:
Mr. Oduor holding brief for Mr. Kanyi for Plaintiff
No appearance by Defendants
M. ODERO
JUDGE
26/05/2010