[2008] KEHC 1020 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he is the rightful registered owner of land parcel KAGAARI/KANJA/3239. The plaintiff produced documentary evidence of registration and title, and there was no evidence or defence from the defendant to challenge this. The defendant's...
Source-derived case information.
- Citation
- [2008] KEHC 1020 (KLR)
- Parties
- Plaintiff: Charles Njiru John; Defendant: Ndwiga Muruambui
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 76 of 2007
- Procedural Posture
- Civil Case / Judgment
- Outcome
- judgment for the plaintiff
- Legal Topics
- Trespass to Land, Vacant Possession, Eviction Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Njiru John
Plaintiff
Ndwiga Muruambui
Defendant
Procedural Posture
Civil Case / Judgment
Legal Issues
- 1 Whether the plaintiff is the rightful registered owner of land parcel KAGAARI/KANJA/3239.
- 2 Whether the defendant has any legal interest or right to remain on the suit land.
- 3 Whether the plaintiff is entitled to orders of eviction and vacant possession against the defendant.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he is the rightful registered owner of land parcel KAGAARI/KANJA/3239. The plaintiff produced documentary evidence of registration and title, and there was no evidence or defence from the defendant to challenge this. The defendant's continued occupation of the land was therefore unlawful, amounting to trespass. The absence of any defence or explanation from the defendant left the court with no alternative but to grant the orders sought by the plaintiff. The court ordered the eviction of the defendant after 90 days from the date of judgment and awarded costs and interest to the plaintiff.
Court Disposition
judgment for the plaintiff
Orders
- The defendant, his family, servants, and/or agents to vacate and give vacant possession of land parcel KAGAARI/KANJA/3239 to the plaintiff within 90 days from the date of judgment.
- In default, the defendant, his family, servants, and/or agents and their properties to be removed or evicted from land parcel KAGAARI/KANJA/3239 after 90 days from the date of judgment.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 76 of 2007
CHARLES NJIRU JOHN……………………………….….....PLAINTIFF
VERSUS
NDWIGA MURUAMBUI…………….……………………..DEFENDANT
JUDGMENT
The plaintiff through Duncan Muyodi & Co. Advocates filed this suit on 19/9/2008 against the defendant for the following prayers:-
(a) That the defendant himself, his family, servants and/or agents do remove themselves and his/their properties from land parcel number KAGAARI/KANJA/3239 and/or do give vacant possession of the said land to the plaintiff within 30 days from the date of Judgment and in default the defendant himself, his family, servants and/or agents and their properties be removed or evicted from land parcel No. KAGAARI/KANJA/3239 within 60 days from the date of this Judgment.
(b) Costs of the suit and interest.
The defendant was duly served with the plaint and summons. An appearance was entered on his behalf by RUGAITA&CO. ADVOCATES but no defence was filed. His counsel was later on 20/5/2008 allowed to cease acting for him. The defendant was therefore thereafter served with the hearing notice for today’s date in person on 7/8/2008 as is evidenced by the affidavit of service dated 27/10/2008. He did not show up for the hearing today and so the matter proceeded Ex-parte.
Upon hearing the plaintiff and perusing his exhibits, I have made a finding that this matter is very straight forward indeed. It is an open and shut case. The plaintiff has exhibited a copy of the Register (P.Exh.1) which clearly show that he bought the land in question and the same was transferred to him in 1999. He was issued with a Title Deed which he said he charged to the bank to secure a loan of 600,000/-. This abstract of the register does not reflect any interest whatsoever that can be linked to the defendant herein. In the absence of a statement of defence by the defendant, to explain his occupation of the land in question, the court cannot but find that the defendant is a trespasser on the plaintiffs land. The totality of the evidence on record shows that the plaintiff is the rightful registered owner of parcel No. KAGAARI/KANJA/3239, and further that the defendant is a trespasser thereon and he has no claim whatsoever or any color of right to remain on that land.
My finding therefore is that the plaintiff has proved his case against the defendant on a balance of probabilities. I enter Judgment for him as prayed in the plaintiff but direct that the plaintiff be evicted from the land after 90 days from the date of this Judgment. He should be served with the notice of this order immediately for compliance. The plaintiff is also awarded costs of the suit plus interest thereon on the lower scale since although a memorandum of appearance was filed, the defendant did not file any defence.
Orders accordingly.
W. KARANJA
JUDGE
Delivered, dated and signed at Embu this…29th .....day of October, 2008.
Presence of:-