[2021] KEELC 1058 (KLR)
The court found that the plaintiff is the registered owner of the suit property, having acquired it through due process from the estate administrator. The defendant, despite alleging fraud and trust, failed to appear or provide any evidence to support his claims. The burden of proof for trust or fraud rested on the...
Source-derived case information.
- Citation
- [2021] KEELC 1058 (KLR)
- Parties
- Plaintiff: Christopher Okwii Ijirmani; Defendant: Alfred Sokoni Ekirusut
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 131 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- Judgment for the plaintiff as prayed in the plaint.
- Judges
- AA Omollo
- Legal Topics
- Eviction, Title to Land, Burden of Proof, Trusts in Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Christopher Okwii Ijirmani
Plaintiff
Alfred Sokoni Ekirusut
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the lawful owner of LR. Bukhayo/Lupida/182 entitled to possession.
- 2 Whether the defendant has established a valid claim of trust or fraud against the plaintiff's title.
- 3 Whether the plaintiff is entitled to an order of eviction against the defendant.
Ratio Decidendi
The court found that the plaintiff is the registered owner of the suit property, having acquired it through due process from the estate administrator. The defendant, despite alleging fraud and trust, failed to appear or provide any evidence to support his claims. The burden of proof for trust or fraud rested on the defendant, and in the absence of such evidence, the plaintiff's title stands protected under the Land Registration Act. The court therefore held that the plaintiff is entitled to possession and granted the orders sought, including eviction of the defendant if he fails to vacate within 60 days.
Court Disposition
Judgment for the plaintiff as prayed in the plaint.
Orders
- The defendant is granted 60 days from the date of service of the decree to surrender vacant possession of Bukhayo/Lupida/182.
- In default, the plaintiff is at liberty to evict the defendant using lawful means.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BUSIA
ELC CASE NO. 131 OF 2017
CHRISTOPHER OKWII IJIRIMANI............................................PLAINTIFF
= VERSUS =
ALFRED SOKONI EKIRUSUT.................................................. DEFENDANT
J U D G M E N T
1. The plaintiff filed a suit against the defendant via a plaint dated 11th July 2017 seeking the following orders against the defendant;
a) Eviction compelling the defendant to forcefully be removed on LR. BUKHAYO/LUPIDA/182.
b) Any other relief that this Honourable Court may deem fit and expedient to grant.
c) Costs and interests of this suit.
2. The defendant was duly served with summons to enter appearance in this suit but he entered appearance and filed a defence to the claim. He was again served with today’s date on 7th October 2021 and he has not shown up. Essentially, the plaintiff’s claim is undefended as there is no evidence presented to give the status of the application commenced by the defendant to revoke the certificate of grant issued to Margaret Ajiliti Odionyi who sold the land to the plaintiff herein.
3. The plaintiff pleaded that he bought the land from the administrator of the estate of Busuru Kinusutu and followed due process in obtaining his title. Although the defendant pleaded that such acquisition was fraudulent, the particulars of the fraud pleaded were not proved since the defendant did not tender any evidence.
4. Currently, the plaintiff is the registered owner of the suit as shown in the copy of title produced in court by the list of documents filed on 11th July 2017. The defendant has also not appeared in court to tender evidence in support of his trusteeship claim.
5. Trust is a question of fact which must be proved by evidence and the burden was on the defendant who is challenging the plaintiff’s title to discharge. In the absence of evidence vitiating the plaintiff’s title, I hold that his rights bestowed under the provisions of section 24 and 25 should be preserved and protected.
6. Consequently, I enter judgment for the plaintiff as prayed in the plaint in the following terms;
a)The defendant is granted 60 (sixty) days from the date of service of this decree upon him to surrender vacant possession of the suit title Bukhayo/Lupida/182.
b)In default of complying with (a) above, the plaintiff is at liberty to evict the defendant using lawful means.
c) Each party to meet their respective costs of the suit.
DATED, SIGNED AND DELIVERED AT BUSIA THIS 10TH DAY OF NOVEMBER 2021.
A. OMOLLO
JUDGE