[2017] KEELC 3529 (KLR)
The court found that the Plaintiff had established her case on a balance of probabilities by producing an unchallenged Certificate of Lease and an official search confirming her ownership of Mavoko Town Block 13/105. The Defendant failed to attend the hearing or provide any evidence to support his claim of ownership...
Source-derived case information.
- Citation
- [2017] KEELC 3529 (KLR)
- Parties
- Plaintiff: Anne Wachuka Ndei; Defendant: Daniel Wamalwa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 403 of 2012
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's suit allowed in full.
- Judges
- OA Angote
- Legal Topics
- Ownership Disputes, Injunctions, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anne Wachuka Ndei
Plaintiff
Daniel Wamalwa
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful owner of Mavoko Town Block 13/105.
- 2 Whether the Defendant has any legal right or interest in the suit property.
- 3 Whether the Plaintiff is entitled to a permanent injunction and eviction orders against the Defendant.
Ratio Decidendi
The court found that the Plaintiff had established her case on a balance of probabilities by producing an unchallenged Certificate of Lease and an official search confirming her ownership of Mavoko Town Block 13/105. The Defendant failed to attend the hearing or provide any evidence to support his claim of ownership or possession of the suit property. The court applied Section 27(b) of the Registered Land Act (repealed), which vests leasehold interest in the registered proprietor, and concluded that the Plaintiff is entitled to the reliefs sought, including a declaration of ownership, a permanent injunction, and eviction of the Defendant from the suit property.
Court Disposition
Plaintiff's suit allowed in full.
Orders
- Declaration that the Plaintiff is the owner of Mavoko Town Block 13/105.
- Permanent injunction restraining the Defendant, his servants, agents, representatives or assigns from trespassing on Mavoko Town Block 13/105.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC CASE NO. 403 OF 2012
ANNE WACHUKA NDEI …..…………….…….PLAINTIFF
VERSUS
DANIEL WAMALWA ……….……………….DEFENDANT
JUDGMENT
1. In his Plaint dated 18th October, 2012, the Plaintiff is seeking for a permanent injunction restraining the Defendant or his servants from ingressing or engressing into a parcel of land known as Mavoko Town Block 13/105 (the suit property).
2. The Plaintiff’s claim is premised on the ground that he is the registered proprietor of the suit property having been allocated the land by the Commissioner of Lands.
3. The Defendant’s advocate filed a Defence in which he averred that he purchased a parcel of land known as Mavoko Town Block 20/105 from one Mary Kerubo Monda; that he has been in actual possession of the land since the year 2002 and that he is a stranger to the allegations raised in the Plaint.
4. Although the Defendant’s advocate was notified about the hearing of 16th February, 2017, neither the Defendant nor his advocate was in court on that day. The matter proceeded for hearing in their absence.
5. The Plaintiff, PW1, informed the court that she is the registered proprietor of parcel of land number Mavoko Town Block 13/105.
6. According to PW1, she acquired the land in 1995 and was later on issued with the Certificate of Lease. PW1 produced in evidence the Certificate of Lease which was issued to her on 5th December, 1995. PW1 also produced an official search which shows that she is the registered owner.
7. It was the evidence of PW1 that although the Defendant promised to vacate the suit property, he has refused to do so; that the Defendant is on the suit land illegally and that he should be evicted from the land.
8. Although the Defendant averred in the Defence that he purchased land known as Mavoko Town Block 20/105, he has not put before the court any evidence to prove that allegation.
9. The Defendant did not also produce any evidence to show the connection between the suit land property and land known as Mavoko Town Block 20/105.
10. Considering that the Plaintiff is in possession of a Certificate of Lease which has not been challenged by the Defendant, and in view of the provisions of Section 27(b) of the Registered Land Act (repealed)which provides that the registration of a person as the proprietor of a lease shall vest in that person the leasehold interest, I find and hold that the Plaintiff has proved her case on a balance of probabilities.
11. For those reasons, I allow the Plaintiff’s Plaint dated 18th October, 2012 in the following terms;
a) A declaration be and is hereby issued that the Plaintiff is the owner of parcel of land known as Mavoko Town Block 13/105.
b) A permanent injunction be and is hereby issued restraining the Defendant, his servants, agents, representatives or assigns from trespassing on parcel of land known as Mavoko Town Block 13/105.
c) An order of eviction against the Defendant be and is hereby granted.
d) An order that the Defendant demolishes all the structures that he has constructed on the parcel of land known as Mavoko Town Block 13/105 be and is hereby granted.
e) The Officer Commanding Station, Athi River Station to supervise the enforcement of the orders herein.
f) The Defendant to pay the costs of the suit.
DATED AND DELIVERED AT MACHAKOS THIS 3RDDAY OF MARCH, 2017.
OSCAR A. ANGOTE
JUDGE