[2014] KEHC 3617 (KLR)
The court found that the plaintiff is the registered proprietor of the suit land, as evidenced by the title deed. The defendant, having failed to file a defence or appear, did not establish any right or interest under Section 28 of the Registered Land Act. The defendant's occupation was therefore unlawful and...
Source-derived case information.
- Citation
- [2014] KEHC 3617 (KLR)
- Parties
- Plaintiff: Anthony Wachira Gathirimu; Defendant: Peter Gikandi Mwita
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 411 of 2013
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff.
- Judges
- BN Olao
- Legal Topics
- Trespass to Land, Registered Land Title, Eviction Orders, Mesne Profits, Costs of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Wachira Gathirimu
Plaintiff
Peter Gikandi Mwita
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the defendant trespassed on land parcel MUTIRA/KAGUYU/200.
- 2 Whether the plaintiff is entitled to an order of eviction against the defendant.
- 3 Whether the plaintiff is entitled to mesne profits.
Ratio Decidendi
The court found that the plaintiff is the registered proprietor of the suit land, as evidenced by the title deed. The defendant, having failed to file a defence or appear, did not establish any right or interest under Section 28 of the Registered Land Act. The defendant's occupation was therefore unlawful and amounted to trespass. Since the defendant had vacated the land but left a structure, the court found an eviction order unnecessary but ordered the removal of the structure. The claim for mesne profits was denied due to lack of evidence. Costs were awarded to the plaintiff as the successful party.
Court Disposition
Judgment for the plaintiff.
Orders
- Declaration that the defendant has trespassed on land parcel No. MUTIRA/KAGUYU/200.
- Defendant to demolish and remove the structure left on the land within 30 days of service of the decree; failing which, the plaintiff is at liberty to demolish the same.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 411 OF 2013
ANTHONY WACHIRA GATHIRIMU …………………………………………. PLAINTIFF
VERSUS
PETER GIKANDI MWITA …………………………………………………… DEFENDANT
JUDGMENT
The plaintiff filed this suit on 8th April 2013 seeking the following orders against the defendant:-
A declaration that the defendant has trespassed on land parcel MUTIRA/KAGUYU/200
An order of eviction of defendant from the said land parcel
Mesne profit
Costs.
Though served with the plaint on 10th May 2013, the defendant did not enter appearance or file any defence and on 15th October 2013, interlocutory judgment was entered against him and the suit came up for formal proof on 26th June 2014.
The plaintiff testified that he is the registered proprietor of the land parcel
MUTIRA/KAGUYU/200 and produced the title deed (Exhibit 1). He clarified that although the defendant who is his nephew had initially refused to vacate the suit land notwithstanding receipt of a demand to vacate (Exhibit 2), he had since vacated as at the time of hearing. However, he had left behind a structure on the land and the plaintiff therefore seeks an order to demolish the same.
I have considered the plaintiff’s evidence, un-controverted as it is, as well as the documentary evidence produced.
It is clear from the title deed (Exhibit 1) that the plaintiff is the registered proprietor of the suit land. The title deed is issued under the Registered Land Act (now repealed) and under Section 28 of the said Act, the plaintiff’s right to the suit land is undefeasible and only subject to the rights, interests and other liabilities mentioned therein. There is no evidence before me that the defendant enjoins any of those rights mentioned in Section 28 of the Registered Land Act. His presence on the plaintiff’s land is therefore that of a trespasser. The plaintiff has however said that the defendant has since moved out of the land. An order of eviction is therefore not necessary. I however declare that the defendant has trespassed on the plaintiff’s land and should remove his structures thereon within 30 days of being served with a copy of this judgment and/or decree.
On the issue of mesne profits, there was no evidence led to justify the grant of the same. I therefore decline to make any orders in that regard.
The plaintiff is entitled to costs.
Ultimately therefore, having considered the evidence before me, I enter judgment for the plaintiff against the defendant in the following terms:-
A declaration that the defendant has trespassed on land parcel No. MUTIRA/KAGUYU/200
As the defendant has voluntarily moved out of the land leaving behind a structure, I further order that he demolishes the said structure within 30 days of being served with the decree herein failing which the plaintiff shall be at liberty to demolish the same.
Plaintiff shall have the costs of the suit.
B.N. OLAO
JUDGE
4TH JULY, 2014
4/7/2014
Before
B.N. Olao – Judge
Mwangi – CC
Mr. Magee for Plaintiff – present
No appearance for Defendant
COURT: Judgment delivered this 4th day of July 2014 in presence of
Mr. Magee for Plaintiff.
Defendant – absent
Right of appeal explained.
B.N. OLAO
JUDGE
4TH JULY, 2014