[2004] KEHC 115 (KLR)
The court found that the Plaintiff had established, on a balance of probabilities, that he was the lawful owner of Plot No. 111 'A', Narok Township, having acquired it through a valid transfer from his mother, the original allottee, with the approval and formal allotment by the Third Defendant. The Defendants'...
Source-derived case information.
- Citation
- [2004] KEHC 115 (KLR)
- Parties
- Plaintiff: Ben Nkurrunah; Defendant: Siloma Ole Partoip; Defendant: Isaac Leteila Partoip; Defendant: Narok Town Council
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 908 of 2003
- Procedural Posture
- Civil Suit / Formal Proof Judgment
- Outcome
- Judgment for the Plaintiff. All prayers (a)-(d) of the Plaint granted against the Defendants jointly and severally.
- Legal Topics
- Allotment Disputes, Trespass, Vacant Possession, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Nkurrunah
Plaintiff
Siloma Ole Partoip
Defendant
Isaac Leteila Partoip
Defendant
Narok Town Council
Defendant
Procedural Posture
Civil Suit / Formal Proof Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful owner of Plot No. 111 'A', Narok Township.
- 2 Whether the Defendants unlawfully encroached, trespassed, or constructed on the Plaintiff's property.
- 3 Whether the Plaintiff is entitled to a permanent injunction, vacant possession, and other reliefs sought.
Ratio Decidendi
The court found that the Plaintiff had established, on a balance of probabilities, that he was the lawful owner of Plot No. 111 'A', Narok Township, having acquired it through a valid transfer from his mother, the original allottee, with the approval and formal allotment by the Third Defendant. The Defendants' failure to file a defence or challenge the Plaintiff's evidence meant the Plaintiff's case was uncontroverted. The purported re-allocation of the plot to the First Defendant was unlawful, and the subsequent encroachment and construction by the Defendants amounted to trespass. The Plaintiff was therefore entitled to the reliefs sought, including a permanent injunction, revocation of...
Court Disposition
Judgment for the Plaintiff. All prayers (a)-(d) of the Plaint granted against the Defendants jointly and severally.
Orders
- A permanent injunction restraining the Defendants from encroaching, entering, trespassing onto, constructing or erecting any building or structure on the suit plot.
- The Third Defendant is ordered to revoke and annul the allotment of the suit plot to the First Defendant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Suit 908 of 2003
BEN NKURRUNAH ………………………..…….............................................……….. PLAINTIFF
VERSUS
1. SILOMA OLE PARTOIP ………..……......…….....................................…….1ST DEFENDANT
2. ISAAC LETEILA PARTOIP ……….........................................……………. 2ND DEFENDANT
3. NAROK TOWN COUNCIL ……........................................………………… 3RD DEFENDANT
J U D G M E N T
The Plaintiff, Ben Nkurrunah, instituted this suit by way of a Plaint dated and filed on the 28th August 2003 seeking judgment against the First, Second and Third Defendants jointly and severally for:-
a) a permanent injunction restraining the Defendants by themselves, their agents and or servants from encroaching, entering, trespassing onto, constructing or erecting any building or structure on the suit plot.
b) the 3rd Defendant is ordered to revoke and annul the allotment of the suit plot to the 1st Defendant.
c) Vacant possession of the suit plot and/eviction of the 1st and 2nd Defendants and demolition of any illegal structures.
d) Costs of this suit.
e) Any other or further orders as the court deems fit, just and expedient to grant.
The Defendants having failed to file their joint or respective statements of defence within the time prescribed by law, the Plaintiff requested for judgment which was entered on the 7th January 2004. The suit then proceeded for hearing by way of formal proof leading of this judgment.
In his evidence, which was unchallenged, the Plaintiff testified the suit property, namely Plot Number 111 “A” situate in Narok Township, had initially been allocated by the Third Defendant to the Plaintiff’s mother, one Mary Naanyu Nkurrunah, vide the Third Defendant’s Minute 15/70 dated the 8th November 1988. Subsequently, and pursuant to an agreement between the said allottee and the Plaintiff dated the 13th October 1993, the property was transferred to the Plaintiff by way of gift in consideration of his mother’s natural love and affection for the Plaintiff and such transfer was duly accorded the approval of the Third Defendant vide Minute 7/97 of its meeting held on the 22nd January 1997. The Third Defendant formalized the said transfer by issuing to the Plaintiff a Letter of Allotment Reference No. NTC/TR/P/Vol. 1/1/1/39 dated the 13th September 2000.
The Plaintiff, on payment to the Third Defendant of the requisite transfer fees of K.Shs. 3,750/-, took possession of the suit property and proceeded to erect thereon permanent stone buildings comprising a residential house, currently occupied by the Plaintiff’s brothers, and a shop which the Plaintiff has let.
It was the Plaintiff’s further evidence that in the year 2002, the First Defendant, a brother of the Second Defendant who at the material time was the Town Clerk to the Third Defendant, colluded and connived with the Second and Third Defendants with intent to defraud the Plaintiff of the suit property whereby the Third Defendant unlawfully purported to allocate the Plaintiff’s said Plot No. 111 “A” aforesaid to the First Defendant. Pursuant to such illegal purported allotment, the First Defendant unlawfully took possession of a portion of the suit property, fenced it off and erected thereon semi-permanent wooden buildings comprising low-income housing and a workshop which the First Defendant currently rents for commercial gain.
Despite the Plaintiff’s efforts through the Police and the local Provincial Administration to recover possession of his property, the Second Defendant’s considerable influence as Town Clerk to the Third Defendant thwarted the Plaintiff’s endeavours and the First Defendant continues to be unlawfully in possession thereof. The Plaintiff therefore filed this suit seeking, inter alia, vacant possession of the suit property.
In the absence of any evidence to the contrary, I find and hold that the Plaintiff is the legal owner of Plot No. 111 “A”, Narok, the same having been lawfully allocated to him by the Third Defendant pursuant to the transfer thereof to the Plaintiff by his mother, Mary Naanyu Nkurrunah, the original allottee.
Accordingly, and the Plaintiff having on a balance of probability proved his claim as in the Plaint more particularly set forth, and an interlocutory judgment having been entered against the First, Second and Third Defendants on the 7th January 2004, it is ordered that prayers a), b), c) and d) inclusive of the Plaint be and are hereby granted against the Defendants jointly and severally and orders accordingly in the terms thereof.
Dated and delivered at Nairobi this seventeenth day of December 2004
P Kihara Kariuki
Ag. Judge