[2017] KEELC 3058 (KLR)
The court found that the plaintiffs had proved, on a balance of probabilities, that the defendant had unlawfully encroached upon their respective parcels of land in the Turima Adjudication Section. The plaintiffs produced documentary evidence, including the DLASO's consent and letters of administration, and their...
Source-derived case information.
- Citation
- [2017] KEELC 3058 (KLR)
- Parties
- Plaintiff: Charles Iguna Nduyo; Plaintiff: Kithetu Mugambi; Plaintiff: Agnes Karia Makanya; Defendant: Gituri Primary School (sued through Chairman, Secretary & Treasurer of School Management Committee)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 60 of 2017
- Procedural Posture
- Land and Property Suit / Judgment After Default of Defence
- Outcome
- Judgment for the plaintiffs; permanent injunction granted; costs awarded.
- Legal Topics
- Land Encroachment, Permanent Injunction, Adjudication Section Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Iguna Nduyo
Plaintiff
Kithetu Mugambi
Plaintiff
Agnes Karia Makanya
Plaintiff
Gituri Primary School (sued through Chairman, Secretary & Treasurer of School Management Committee)
Defendant
Procedural Posture
Land and Property Suit / Judgment After Default of Defence
Legal Issues
- 1 Whether the defendant unlawfully encroached upon the plaintiffs' parcels of land.
- 2 Whether the plaintiffs are entitled to a permanent injunction restraining the defendant from interfering with their land.
- 3 Whether the plaintiffs are entitled to costs of the suit.
Ratio Decidendi
The court found that the plaintiffs had proved, on a balance of probabilities, that the defendant had unlawfully encroached upon their respective parcels of land in the Turima Adjudication Section. The plaintiffs produced documentary evidence, including the DLASO's consent and letters of administration, and their oral testimony was unchallenged due to the defendant's failure to participate in the proceedings. The court held that the plaintiffs were entitled to a permanent injunction restraining the defendant, its officials, agents, or workmen from interfering with the specified parcels of land. Costs were also awarded to the plaintiffs as the successful parties.
Court Disposition
Judgment for the plaintiffs; permanent injunction granted; costs awarded.
Orders
- A permanent injunction is issued restraining the defendant, its officials, agents, or workmen from interfering with parcel Nos. TURIMA ADJUDICATION SECTION/1803, TURIMA ADJUDICATION SECTION/1804 and TURIMA ADJUDICATION SECTION/1805.
- Costs are awarded to the plaintiffs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT CHUKA
CHUKA ELC CASE NO 60 OF 2017
FORMERLY MERU ELC CASE NO.139 OF 2016
CHARLES IGUNA NDUYO…….……..………….……….....…..1ST PLAINTIFF
KITHETU MUGAMBI…………..……...……………..……..…...2ND PLAINTIFF
AGNES KARIA MAKANYA…....……..………………………....3RD PLAINTIFF
VERSUS
GITURI PRIMARY SCHOOL (SUED THRO’ CHAIRMAN,SECRETARY
& TREASURER OF SCHOOL MANAGEMENT COMMITTEE....DEFENDANT
JUDGMENT
1. In this matter the defendant had not entered an appearance or filed a defence within the stipulated time. The plaintiffs’, as a result, sought judgment in default of a defence.
2. The plaintiffs were heard on 7. 3.2017.
3. PW1, Charles Iguna Nduyo, the 1st plaintiff, gave evidence that he came from Turima Location, Tharaka South Sub County. He testified that he was a Senior Chief, in charge of Turima Location. He told the court that the defendant, through its management committee had encroached upon his land. He asked the court to adopt his witness statement dated 22. 8.2016 as his evidence in this suit and as exhibit 1. He also asked the court to admit his bundle of documents as exhibit 2.
4. PW1 also provided to court the consent of the District Lands and Settlement Officer (DLASO) allowing him to file this suit as required by the law. He also referred the court to a document in his bundle of documents which is a letter through which his advocates, Mwanzia & Co. Advocates, had warned the plaintiff not to interfere with his land failing which he and the other 2 plaintiffs would institute legal proceedings.
5. He asked the court to permanently restrain the defendant from interfering with his land as per the main prayer in the plaint.
6. PW2, Kithetu Mugambi, asked the court to adopt his statement dated 15. 8.2016 and filed on 22. 8.2016 as his evidence in this suit. He asked the court to make reference to the documents he had proffered and grant him orders as sought in the plaint.
7. PW3, Agnes Karia Makanya, asked the court to adopt her witness statement dated 15. 8.2016 and filed on 22. 8.2016 as her evidence in this suit. She asked the court to take into account the documents she had filed in this matter when making its determination. She particularly asked the court to look at document 2 which is a grant of letters of administration appointing her an administrator of her husband’s estate. She also brought to the attention of the court the DLASO’s consent for her to file this suit.
8. I have carefully considered the pleadings and the documents filed by the parties. I have also very carefully considered the oral evidence proffered by the parties.
9. I find that the plaintiffs have proved their case against the defendant.
10. Consequently, judgment is entered for the plaintiffs against the defendant as follows:
(a) An order of permanent injunction is issued restraining the defendant by itself, its officials, agents, or workmen form interfering with parcel Nos. TURIMA ADJUDICATION SECTION/1803, TURIMA ADJUDICATION SECTION/1804 and TURIMA ADJUDICATION SECTION/1805.
(b) Costs are awarded to the plaintiffs.
11. It is so ordered.
Delivered in open court at Chuka this 28th day of March, 2017 in the presence of:
CA: Ndegwa
Miss Kaaria h/b Murango Mwenda for the plaintiffs
P. M. NJOROGE,
JUDGE.