[2018] KEELC 4071 (KLR)
The court found that the plaintiff had produced unchallenged evidence, including a valid certificate of title, establishing him as the absolute owner of the suit property. The defendant, having failed to appear or file a defence, did not provide any lawful justification for her occupation of the land. The court held...
Source-derived case information.
- Citation
- [2018] KEELC 4071 (KLR)
- Parties
- Plaintiff: Antonio Musyoka David; Defendant: Mumbi Kusuania
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 49 of 2017
- Procedural Posture
- Land and Property Suit / Ex Parte Judgment
- Outcome
- Judgment for the plaintiff; eviction order granted.
- Legal Topics
- Trespass to Land, Vacant Possession, Mesne Profits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Antonio Musyoka David
Plaintiff
Mumbi Kusuania
Defendant
Procedural Posture
Land and Property Suit / Ex Parte Judgment
Legal Issues
- 1 Whether the plaintiff is the registered and rightful owner of L.R NO. Mwingi/Mwingi/1729.
- 2 Whether the defendant has trespassed and unlawfully occupied the plaintiff's land since 2010.
- 3 Whether the plaintiff is entitled to vacant possession and mesne profits from the defendant.
Ratio Decidendi
The court found that the plaintiff had produced unchallenged evidence, including a valid certificate of title, establishing him as the absolute owner of the suit property. The defendant, having failed to appear or file a defence, did not provide any lawful justification for her occupation of the land. The court held that the plaintiff had proved his case on a balance of probabilities and was entitled to the reliefs sought, including eviction of the defendant and costs of the suit.
Court Disposition
Judgment for the plaintiff; eviction order granted.
Orders
- The defendant is hereby evicted from the plaintiff's land Reference Number MWINGI/MWINGI/1729.
- The Officer Commanding Mwingi Police Station (OCS) to ensure compliance with this order.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
THE ENVIRONMENT & LAND COURT
AT GARISSA
ELC CASE NO. 49 OF 2017
ANTONIO MUSYOKA DAVID…….……………………….…PLAINTIFF
VERSUS
MUMBI KUSUANIA…………….…………………….…….DEFENDANT
JUDGEMENT
The plaintiff Antonio Musyoka David has instituted this suit against Mumbi Kusuania, the defendant herein for vacant possession and mesue profits at the rate of Kshs.5000/= per month with effect from 2010 to date. In a plaint dated 4th July 2017, the defendant avers that he is the registered owner of all that parcel of land known as L.R NO. Mwingi/Mwingi/1729 measuring approximately 0. 02 Ha. The plaintiff further avers that the defendant has since the year 2010 without any colour of right or justification trespassed into the said land and has continued to occupy the same without his consent.
When the summons and suit papers were served upon the defendant, she failed to Enter Appearance or file defence. Upon being satisfied that the defendant was indeed served with summons, plaint and the verifying affidavit, the court decided the suit to proceed Ex-parte.
The plaintiff gave sworn testimony and stated that his full name is David Mulandi and Antonio Musyoka David is his son. He produced a power of Attorney dated 6th July, 2012 giving him power and authority to commence, prosecute defend any action or actions suit or suits at law or equity in any of the courts of Kenya on his behalf. The witness also produced his witness statement which was adopted in his evidence. He also produced a list of documents dated 6th March 2017. That list of documents is a copy of title deed for the suit property Land Reference Number Mwingi/Mwingi/1729, a demand letter dated 5/8/14, an application for consent of Land Control Board and a letter of consent. The list also contains a police abstract from Eldoret Police Station dated 18th March, 2015. The testimony of the plaintiff and the documents produced in evidence are not challenged as no defence was filed by the defendant.
The certificate of title produced in evidence is a prima farcie evidence that the person named as proprietor of the land is the absolute and indefeasible owner except on grounds of fraud or misrepresentation. The plaintiff has stated in his suit papers that the defendant trespassed into the suit property sometime in the year 2010.
In the absence of any explanation or any legal right into the plaintiffs land, I find that the plaintiff has proved his claim against the defendant on a balance of probabilities. In the upshot, I hereby enter judgement for the plaintiff against the defendant in the following terms:-
1. The defendant be and is hereby evicted from the plaintiffs land Reference Number MWINGI/MWINGI/1729.
2. That the Officer Commanding Mwingi Police Station (OCS) to ensure compliance of this order.
3. The costs of the suit to be borne by the defendant.
Read and delivered in the open court this 17th day of January, 2018
Hon. E.C Cherono (Mr.)
ELC Judge
In the presence of
1. Ijabo – Court clerk
2. Plaintiff/Advocate (Absent)
3. Defendant/Advocate (absent)