[2017] KEELC 2799 (KLR)
The court found that the plaintiff had produced documentary evidence, including sale agreements, transfer and mutation forms, Land Control Board consent, and a title deed, proving lawful acquisition of 4 acres (Kilifi/Vipingo/400) from the defendants' father. The defendants failed to attend the hearing or challenge...
Source-derived case information.
- Citation
- [2017] KEELC 2799 (KLR)
- Parties
- Plaintiff: Benjamin Charo Kenga; Defendant: Dama George Kazungu Kithi; Defendant: Mbaraka Kazungu Kithi; Defendant: Safari Kazungu Kithi; Defendant: Matano Kazungu Kithi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 151 of 2015
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's suit allowed as prayed.
- Judges
- OA Angote, JO Olola
- Legal Topics
- Land Sale Agreements, Title Registration, Vacant Possession, Permanent Injunction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Charo Kenga
Plaintiff
Dama George Kazungu Kithi
Defendant
Mbaraka Kazungu Kithi
Defendant
Safari Kazungu Kithi
Defendant
Matano Kazungu Kithi
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff lawfully purchased and acquired title to Kilifi/Vipingo/400.
- 2 Whether the plaintiff is entitled to vacant possession and a permanent injunction against the defendants.
- 3 Whether the defendants trespassed on the plaintiff's land.
Ratio Decidendi
The court found that the plaintiff had produced documentary evidence, including sale agreements, transfer and mutation forms, Land Control Board consent, and a title deed, proving lawful acquisition of 4 acres (Kilifi/Vipingo/400) from the defendants' father. The defendants failed to attend the hearing or challenge the evidence. The court held that the plaintiff is entitled to peaceful use and occupation of the land, vacant possession, and a permanent injunction against the defendants, as he is the registered proprietor and the defendants' actions amounted to trespass.
Court Disposition
Plaintiff's suit allowed as prayed.
Orders
- Plaintiff granted vacant possession of Kilifi/Vipingo/400.
- Permanent injunction issued restraining the defendants from interfering with the plaintiff's use and occupation of the land.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MALINDI
ELC CASE NO. 151 OF 2015
BENJAMIN CHARO KENGA ……….............................PLAINTIFF
VERSUS
DAMA GEORGE KAZUNGU KITHI .....................1ST DEFENDANT
MBARAKA KAZUNGU KITHI .............................2ND DEFENDANT
SAFARI KAZUNGU KITHI ...................................3RD DEFENDANT
MATANO KAZUNGU KITHI .................................4TH DEFENDANT
JUDGMENT
1. In his Plaint dated 9th September, 2015, the Plaintiff has averred that parcel of land known as Kilifi/Vipingo/375 was registered in the name of Kazungu Kithi Kombe, the 1st Defendant’s husband (deceased); that he bought a portion of the suit land in the year 2010 from the late Kazungu and that the said land was sub-divided and Plot No. 400 was registered in his name.
2. According to the Plaint, the Plaintiff has been in possession of the land since he bought it and that on 19th June, 2015, the Defendants trespassed on the said land.
3. The Plaintiff is claiming for vacant possession and for an order of permanent injunction.
4. In their Defence, the Defendants averred that the Plaintiff acquired parcel of land number Kilifi/Vipingo/400 illegally; that they have always believed that the Plaintiff is only in possession of 3 acres and not 4 acres and that they stopped him from using more than 3 acres.
5. Although the Defendant’s advocate was served with the hearing notice, neither the Defendants nor their advocate were in court when the matter came up for hearing on 3rd October, 2016. The matter proceeded in the absence of the Defendants and their advocate.
6. The Plaintiff, PW1, informed the court that he bought the first 3 acres of land from the Defendants father for Kshs. 300,000 vide an agreement dated 25th April, 2009.
7. It was the evidence of PW1 that on 7th January, 2010, he bought one acre of the land from the Defendants father and paid him Kshs. 200,000.
8. After paying for the 4 acres, Pw1 informed the court that the suit property was sub-divided and after getting the consent of the Land Control Board, a Title Deed was issued in his name.
9. The Plaintiff produced in evidence the Transfer forms for Plot No. 400, the Mutation forms, the Title Deed and the Official search.
10. Indeed, the documents produced by the Plaintiff shows that land measuring 1. 6Ha (approximately 4 acres) is what he purchased from the Defendants father.
11. In the circumstances, he is entitled to use and occupy the said land peacefully and without any interference from the Defendants or at all.
12. For those reasons, I allow the Plaintiff’s Plaint dated 9th September, 2015 as prayed.
DATED AND SIGNEDATMACHAKOSTHIS2NDDAY OFMAY, 2017.
O.A. ANGOTE
JUDGE
DATED, DELIVEREDANDSIGNEDATMALINDITHIS12THDAY OFMAY, 2017.
J.O. OLOLA
JUDGE