[2004] KEHC 701 (KLR)
The court found that the plaintiff was the exclusive registered owner of the suit land, having received it from her late husband prior to his death. The defendant, though also a widow of the deceased, had been allocated different land and had no legal right to occupy or bury a body on the plaintiff's land. The...
Source-derived case information.
- Citation
- [2004] KEHC 701 (KLR)
- Parties
- Plaintiff: Anna Kwamboka Masese; Defendant: Mabera Nyamwaya
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 450 of 1993
- Procedural Posture
- Civil Case / Judgment After Formal Proof; Defence Struck Out
- Outcome
- Judgment for the plaintiff; eviction order granted; costs awarded to plaintiff.
- Judges
- K Bauni
- Legal Topics
- Trespass to Land, Illegal Burial, Eviction, Widows Land Rights
- 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
Anna Kwamboka Masese
Plaintiff
Mabera Nyamwaya
Defendant
Procedural Posture
Civil Case / Judgment After Formal Proof; Defence Struck Out
Legal Issues
- 1 Whether the defendant's occupation and burial of a body on the plaintiff's land was unlawful.
- 2 Whether the plaintiff is entitled to an order of eviction against the defendant from the suit land.
- 3 Whether the plaintiff is entitled to costs of the suit.
Ratio Decidendi
The court found that the plaintiff was the exclusive registered owner of the suit land, having received it from her late husband prior to his death. The defendant, though also a widow of the deceased, had been allocated different land and had no legal right to occupy or bury a body on the plaintiff's land. The defendant's actions constituted trespass. The court held that the transfer of land to the plaintiff was clear and exclusive, and there was no evidence or indication that the deceased intended the plaintiff to share the land with the defendant. The defendant's continued occupation was therefore unlawful, and the plaintiff was entitled to an order of eviction and costs.
Court Disposition
Judgment for the plaintiff; eviction order granted; costs awarded to plaintiff.
Orders
- The defendant, her servants or agents be evicted from the suit land.
- Plaintiff will have the costs of the suit.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA AT NAIROBI (MILIMANI LAW COURTS)
CIVIL CASE 450 OF 1993
ANNA KWAMBOKA MASESE ………………………………………. PLAINTIFF
VERSUS
MABERA NYAMWAYA …………………………………….. DEFENDANT.
JUDGMENT
Plaintiff in his plaint filed on 3/9/1993 sought for a declaration that the defendant acts of trespass and illegal burial of a body on her land NO.NORTH MUGIRANGO/MOKOMONI/1055 are illegal, for an order to evict the defendant, her agents and servants from the said land and also for exhumation of the body of a child buried on that land. She also prays for costs.
The defendants defence was struck out on 1/8/03 and the suit therefore provided for formal proof. The plaintiff (PW1) told court that she and the defendants are widows of the late ZEPHANIA MASESE who died in 1987. The deceased Masese had four wives. The plaintiff was the 3rd wife and the defendant the fourth wife. In 1976 the deceased moved with the defendant to his land in Molo where they were living. Later the defendant abandoned the husband to go and live with another man. The husband while still alive transferred land No. NORTH MUGIRANGO/MOKOMONI/1055 to the plaintiff. That was in 1986. The first two wives also got their portions of land. Defendant was to remain with land NO.MOLO SOUTH/KUROSOI BLOCK 5/345. She however had moved in with another man. In September 1993 the defendant’s child died.
She forcibly buried the child in the plaintiff’s land. She also built in the said land and started to live there and hence this suit. During the hearing the plaintiff abandoned her prayer for exhumation of the body buried on the land. The defendant was in court and though her defence had been struck out court allowed her to cross examines the plaintiff. The evidence of the plaintiff was very candid. Her husband transferred the land to her in1986 when he was still alive. From 1976 the defendant had moved to Molo where there is land belonging to the deceased. The first two wives also were given land by their deceased husband. It is clear therefore that the husband gave the land to the plaintiff exclusively. If he had wanted her to share it with the defendant he would have indicated so. There is no reason why the defendant chose to go into the plaintiffs land when all along she had lived in the land in Molo. She did not go into occupation of the lands of the 1st and 2nd widows. Thus though the two were widows of the same man, he had clearly transferred his lands before he died. The defendant therefore is living in the land of the plaintiff illegally. Plaintiff filed this suit in 1993 immediately she trespassed into the land.
I therefore enter judgment for the plaintiff as prayed and order that the defendant, her servants or agents be evicted from the suit land. Plaintiff will also have the costs of the suit.
Dated and delivered at Kisii on 26th November, 2004
KABURU BAUNI
JUDGE
Mr. Mogire for Mr. Masese for plaintiff.
KABURU BAUNI
JUDGE