[2018] KEELC 4813 (KLR)
The court found that the plaintiff had proved, on a balance of probabilities, that he is the registered owner of the suit land Bokoli/Chwele/2018 and that the defendant had unlawfully encroached upon approximately one acre of this land. The defendant, having been duly served, failed to enter appearance or file a...
Source-derived case information.
- Citation
- [2018] KEELC 4813 (KLR)
- Parties
- Plaintiff: Diphas Wafula Wanyonyi; Defendant: Richard Kituyi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case Case31 of 2017
- Procedural Posture
- Land and Property Suit / Judgment
- Outcome
- judgment for the plaintiff
- Judges
- SN Mukunya
- Legal Topics
- Land Ownership, Trespass, Eviction, Title Deeds
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Diphas Wafula Wanyonyi
Plaintiff
Richard Kituyi
Defendant
Procedural Posture
Land and Property Suit / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered owner of Bokoli/Chwele/2018.
- 2 Whether the defendant has unlawfully occupied part of the plaintiff's land.
- 3 Whether the plaintiff is entitled to an order for eviction of the defendant.
Ratio Decidendi
The court found that the plaintiff had proved, on a balance of probabilities, that he is the registered owner of the suit land Bokoli/Chwele/2018 and that the defendant had unlawfully encroached upon approximately one acre of this land. The defendant, having been duly served, failed to enter appearance or file a defence, and thus the plaintiff's evidence was uncontroverted. The court accepted the plaintiff's documentary evidence, including the title deed and search certificate, as proof of ownership. Consequently, the court held that the plaintiff was entitled to an order for the defendant's eviction from the encroached portion of the land.
Court Disposition
judgment for the plaintiff
Orders
- The defendant is ordered to move out and vacate the suit land forthwith.
- If the defendant fails to vacate, the court broker with the assistance of the O.C.S. Chwele Police Station shall evict the defendant at the defendant's cost.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA.
IN TH HIGH COURT OF KENYA AT BUNGOMA.
ELC. CASE NO. 31 OF 2017.
DIPHAS WAFULA WANYONYI…….PLAINTIFF
VERSUS.
RICHARD KITUYI……………..…..DEFENDANT
JUDGMENT.
[1] The Plaintiff filed this suit and stated that he is the registered owner of Bokoli/Chwele/2018 located in Chwele in Bungoma County comprising of 2½ acres. That the defendant is his neighbour and that he has unlawfully occupied part of his land approximately one acre. That despite his attempts to have the defendant move and vacate out of the same, the defendant has completely refused to do so.
[2] The defendant was duly served with copies of the Plaint together with the summons to enter appearance on 8/3/2017. He never filed any appearance or defence whereupon the plaintiff filed a request of Judgment on 30/3/2017 and paid for it on 31/3/2017. The Deputy Registrar of this court ordered that the case be fixed for formal proof under order 10 rule 9 of the Civil Procedure Rules.
[3] The case came up for formal proof on 10/10/2017. The Plaintiff proved his case. He produced the documents to wit that, his statement dated 28/2/2017, a copy of his title deed for Bokoli/Chwele/2028 dated 18th October, 2013. The Mutations dated 07/12/2000 and a search certificate dated 27/2/2017.
[4] I am satisfied that the plaintiff is the owner of the suit land. I am equally satisfied that the defendant has encroached on the same to the extent of one acre on balance of probabilities.
[5] I do order that the defendant to move out and vacate the suit land forthwith. Failing which the court broker of this court will evict him out with the assistant of the O.C.S. Chwele Police Station at the defendants cost. The plaintiff shall have the costs of this suit.
Judgment read in Open Court in the presence of the parties.
Dated at Bungoma this 10thday of January, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Chemutai - Court Assistant
Plaintiff - Present
Defendant - Present