[2018] KEELC 4313 (KLR)
The court found that the Plaintiff had established lawful ownership of Plot No. 757 through documentary evidence, including a sale agreement and membership card. The Defendant, having failed to appear or file a defence, did not controvert the Plaintiff's evidence. The court held that the Plaintiff had proved his...
Source-derived case information.
- Citation
- [2018] KEELC 4313 (KLR)
- Parties
- Plaintiff: Bosco Nthenge Nzioki; Defendant: Wayua Muema
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 204 of 2016
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Plaintiff's claim allowed; orders of eviction and permanent injunction granted; costs awarded to Plaintiff.
- Judges
- OA Angote
- Legal Topics
- Trespass to Land, Eviction Orders, Permanent Injunctions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bosco Nthenge Nzioki
Plaintiff
Wayua Muema
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the Plaintiff is the lawful owner of Plot No. 757, Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited.
- 2 Whether the Defendant unlawfully encroached and trespassed on the Plaintiff's land.
- 3 Whether the Plaintiff is entitled to an order of eviction and permanent injunction against the Defendant.
Ratio Decidendi
The court found that the Plaintiff had established lawful ownership of Plot No. 757 through documentary evidence, including a sale agreement and membership card. The Defendant, having failed to appear or file a defence, did not controvert the Plaintiff's evidence. The court held that the Plaintiff had proved his case on a balance of probabilities, entitling him to an order of eviction and a permanent injunction against the Defendant. The Defendant's continued occupation constituted trespass, and the Plaintiff was entitled to the reliefs sought, including costs.
Court Disposition
Plaintiff's claim allowed; orders of eviction and permanent injunction granted; costs awarded to Plaintiff.
Orders
- An order of eviction of the Defendant from Plot No. 757-Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited is issued.
- A permanent injunction restraining the Defendant, her servants and agents from entering or interfering with the Plaintiff’s Plot No. 757-Katelembo is issued.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 204 OF 2016
BOSCO NTHENGE NZIOKI.........................................PLAINTIFF
VERSUS
WAYUA MUEMA.....................................................DEFENDANT
JUDGMENT
1. In the Plaint dated 9th November, 2016, the Plaintiff averred that at all material times, he was the lawful and legal owner of Plot No. 757, Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited(the Society)which he bought from Peter Kivanga Mutiso.
2. The Plaintiff averred that the Defendant has now encroached on the said land and has erected a temporary structure on the land.
3. In his prayers, the Plaintiff is seeking for an order of eviction to issue as against the Defendant and for a permanent injunction restraining the Defendant from entering on the suit land. The Plaintiff is seeking for general damages for trespass.
4. Although the Defendant was served with the Plaint and the Summons to Enter Appearance, he neither entered appearance nor filed a Defence. The matter proceeded for hearing in the absence of the Defendant on 21st September, 2017.
5. The Plaintiff, PW1, informed the court that he purchased plot number 757 measuring ½ an acre from Peter Kivanga Mutiso; that on visiting the land, he found the Defendant had encroached on the land and erected a temporary structure and that the Defendant has refused to vacate the land.
6. The Plaintiff produced in evidence the membership card of Peter Kivanga and the Sale Agreement of 25th September, 2015. The said Agreement shows that the Plaintiff purchased the suit land for Kshs. 600,000 and paid the entire purchase.
7. Considering that the Defendant has not controverted the Plaintiff’s evidence that the suit land initially belonged to Peter Kivanga, who was a member of Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited, which land the Plaintiff purchased, I find that the Plaintiff has proved his claim on a balance of probabilities. I therefore allow the Plaint as follows:
a. An order of eviction of the Defendant from Plot No. 759-Katelembo Athiani Muputi Farming and Ranching Co-operative Society Limited be and is hereby issued.
b. An order of permanent injunction be and is hereby issued restraining the Defendant by herself, servants and or agents from entering and interfering with the Plaintiff’s Plot No. 757- Katelembo.
c. The Defendant to pay the costs of the suit.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 23RD DAY OF FEBRUARY, 2018.
O.A. ANGOTE
JUDGE