[2016] KEELC 212 (KLR)
The court found that the plaintiff, as the legal administrator of the estate of the late Mukambe Shomi Mwangaya, had established ownership of the suit property through uncontroverted evidence. The defendants, having failed to enter appearance or file a defence, did not challenge the plaintiff's claim. The evidence...
Source-derived case information.
- Citation
- [2016] KEELC 212 (KLR)
- Parties
- Plaintiff: Changawa Shomi Mwanganya; Defendant: Mary Kengo Mweleka; Defendant: Sidi Katana Kambi; Defendant: Geotham Ngui Kumi Muthuri; Defendant: Kahindi Katana Kambi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 125 of 2015
- Procedural Posture
- Civil Case / Judgment
- Outcome
- Plaintiff's case allowed as prayed.
- Judges
- OA Angote
- Legal Topics
- Adverse Possession, Succession and Inheritance, Trespass to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Changawa Shomi Mwanganya
Plaintiff
Mary Kengo Mweleka
Defendant
Sidi Katana Kambi
Defendant
Geotham Ngui Kumi Muthuri
Defendant
Kahindi Katana Kambi
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff, as legal administrator, is entitled to possession of the suit land.
- 2 Whether the defendants unlawfully trespassed on the suit land after the death of the registered owner.
Ratio Decidendi
The court found that the plaintiff, as the legal administrator of the estate of the late Mukambe Shomi Mwangaya, had established ownership of the suit property through uncontroverted evidence. The defendants, having failed to enter appearance or file a defence, did not challenge the plaintiff's claim. The evidence from both the plaintiff and the area chief confirmed that the deceased was the lawful owner and that the plaintiff and another were the legal heirs. The court held that the plaintiff had proved his case on a balance of probabilities and was entitled to the reliefs sought in the plaint, including possession of the land and removal of the defendants as trespassers.
Court Disposition
Plaintiff's case allowed as prayed.
Orders
- Plaint dated 27th July, 2015 is allowed as prayed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO.125 OF 2015
CHANGAWA SHOMI MWANGANYA..................................................PLAINTIFF
=VERSUS=
1. MARY KENGO MWELEKA
2. SIDI KATANA KAMBI
3. GEOTHAM NGUI KUMI MUTHURI
4. KAHINDI KATANA KAMBI.........................................................DEFENDANTS
J U D G M E NT
1. In the Plaint dated 27th July, 2015, the Plaintiff averred that he is the brother of the late Mukambe Shomi Mwangaya; that the deceased was the lawful owner of land measuring 200 acres situated in Marafa location and that the deceased had developed the land by growing pineapples, mangoes, cashewnuts and other cereal crops.
2. After the death of her sister, the Plaintiff pleaded that the Defendants trespassed on the suit land.
3. Although the Defendants were served with the Summons to Enter Appearance and the Plaint, they neither entered appearance nor filed a Defence. The matter proceeded for formal proof.
4. The Plaintiff, PW1, informed the court that the suit property was owned by his late sister; that he is the legal administrator to the Estate of his late sister and that when she died, the Defendants, who are a mother and sons, invaded the said land.
5. The Chief of the area, PW2, informed the court that indeed the suit property belonged to the late Mukambe Shomi Mwangaya who lived on the land since 1979 until the year 2000 when she died.
6. It was the evidence of the Chief that the legal heirs to the estate of the late Mukambe Shomi are Chanawa Shomi Mwagaya and Jumwa Shomi.
7. The evidence of PW1 and PW2 that the deceased was the owner of the suit property was uncontroverted.
8. In the circumstances, I find that the Plaintiff has proved his case an a balance of probabilities and I allow the Plaint dated 27th July, 2015 as prayed.
Dated, signed and delivered in Malindi this 4th day of November, 2016.
O. A. Angote
Judge