[2013] KEHC 1914 (KLR)
The court found that the plaintiff, as the registered proprietor of the suit land, is entitled to exercise her rights of ownership, including determining who occupies which portion of the land. The defendant, having been served but failing to enter appearance or file a defence, did not challenge the plaintiff's...
Source-derived case information.
- Citation
- [2013] KEHC 1914 (KLR)
- Parties
- Plaintiff: Bianca Kabura Mwangi; Defendant: James Kinuthia Mwangi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 112 of 2013
- Procedural Posture
- Land and Property Suit / Formal Proof Judgment
- Outcome
- judgment_for_plaintiff
- Judges
- A Ombwayo
- Legal Topics
- Proprietorship Rights, Eviction, Land Registration, Family Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bianca Kabura Mwangi
Plaintiff
James Kinuthia Mwangi
Defendant
Procedural Posture
Land and Property Suit / Formal Proof Judgment
Legal Issues
- 1 Whether the plaintiff, as the registered proprietor, is entitled to evict the defendant from the disputed portion of land.
- 2 Whether the defendant has any legal right to remain on the portion of land contrary to the plaintiff's wishes.
Ratio Decidendi
The court found that the plaintiff, as the registered proprietor of the suit land, is entitled to exercise her rights of ownership, including determining who occupies which portion of the land. The defendant, having been served but failing to enter appearance or file a defence, did not challenge the plaintiff's claim. The evidence, including the certificate of official search, established the plaintiff's absolute proprietorship. The Land Registration Act vests absolute ownership and rights in the registered proprietor, and there was no evidence of any overriding interest or encumbrance in favour of the defendant. The court was satisfied that the plaintiff had proved her case on a balance...
Court Disposition
judgment_for_plaintiff
Orders
- The defendant is to be evicted from the portion he is occupying in land parcel LOC.8/YAMUGWE/1246 to the defined portion set aside for him by the plaintiff.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
ENVIRONMENT & LAND COURT
E.L.C. NO.112 OF 2013
BIANCA KABURA MWANGI.....................PLAINTIFF
VERSUS
JAMES KINUTHIA MWANGI................DEFENDANT
J U D G M E N T
The plaintiff avers that she is the registered proprietor of land parcel No.LOC.8/YAMUGWE/1246. She is the mother of the defendant. The defendant occupies a portion of the suit land.
The plaintiff avers that she gave the defendant a defined portion of the suit land to occupy and cultivate but the defendant has adamantly refused to vacate the said portion which the plaintiff intends to give to another person. . The intention of the plaintiff is not to disinherit the defendant but to relocate him to the defined portion. The plaintiff prays for an order to evict the defendant from the portion he is occupying in land parcel number Yamugwe/1246 to the defined portion set aside for him by the plaintiff. She is also praying for costs and interest of the suit.
The defendant was served with summons to enter appearance together with plaint and failed to enter appearance or file defence within the stipulated time and upon request for judgment against the defendant filed by J.M. Njoroge Advocate for the plaintiff, interlocutory judgment was entered on 12th July 2013.
The matter came up for formal proof on 23/9/2013. The plaintiff Bianca Kabura Mwangi stated that she is the registered proprietor of the parcel of land LOC.8/YAMUGWE/1246. The defendant is her son who stays and works in Nairobi as a painter and resides on the suit land. She intends to give him a different portion of the land. The two are not in good term as the defendant has even assaulted her. She is ready to give him another portion of land near Mugoini Girls High School.
The plaintiff produced a certificate of official search in respect of LOC.8/YAMUGWE/1246 issued on the 5th of June 2013 that indicates that she is the absolute proprietor of the parcel of land and was issued with the title on the 22/2/2001.
Section 24 of the Land Registration Act No.3 of 2012 vests in a person registered as a proprietor of land to absolute ownership of that land together with all rights and privileges appurtenant thereto.
Section 25 protects the rights of a proprietor and that the same are not liable to be defeated except as provided by the Act and shall be held by the proprietor, together with all priviledges and appurtenances belonging thereto free from all other interests and claiming whatsoever but subject to the leases charges and other encumbrances and to the condition and restriction if any show in the register and to such liabilities and interest as affect the same and are declared by Section 28 not to require nothing on the register unless the contrary is exposed in the register.
The defendant was served but neither entered appearance nor filed defence.
I do find that the plaintiff has proved his case on a balance of probabilities and do grant prayers a of the plaint. There will be no orders as to costs.
Dated and Delivered at Nyeri this 11th day of October 2013
A. OMBWAYO
JUDGE