[2011] KEHC 3905 (KLR)
The court found that the applicant is the registered proprietor of the suit land, having produced a valid title deed issued on 10th May, 1994. The respondent, despite alleging fraud and claiming the land as family property, failed to file any affidavit or evidence to substantiate her claims. The defence on record...
Source-derived case information.
- Citation
- [2011] KEHC 3905 (KLR)
- Parties
- Applicant: Dominic Ogeto Mokaya; Respondent: Mary Wamboi
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Case 41 of 2006
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
- Outcome
- Application allowed. Defence struck out. Eviction order granted.
- Legal Topics
- Summary Judgment, Striking Out Defence, Registered Land, Eviction, Trespass, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Ogeto Mokaya
Applicant
Mary Wamboi
Respondent
Procedural Posture
Civil Case / Ruling on Notice of Motion for Summary Judgment and Striking Out Defence
Legal Issues
- 1 Whether the applicant is entitled to summary judgment for eviction based on registered title to land.
- 2 Whether the respondent's defence discloses any triable issue or is merely intended to delay the proceedings.
- 3 Whether the respondent has provided any material evidence to support allegations of fraud regarding the applicant's title.
Ratio Decidendi
The court found that the applicant is the registered proprietor of the suit land, having produced a valid title deed issued on 10th May, 1994. The respondent, despite alleging fraud and claiming the land as family property, failed to file any affidavit or evidence to substantiate her claims. The defence on record was deemed a mere denial without triable issues and intended to delay the matter. In the absence of any material to support the allegations of fraud, and given the statutory protection accorded to registered proprietors under the Registered Land Act, the court concluded that the applicant was entitled to summary judgment and the striking out of the respondent's defence. The court...
Court Disposition
Application allowed. Defence struck out. Eviction order granted.
Orders
- The application dated 16th July, 2009 is allowed.
- The defence by the defendant dated 29th May, 2006 is struck out.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA
AT KITALE.
CIVIL CASE NO. 41 OF 2006.
DOMINIC OGETO MOKAYA ::::::::::::::::::::::::::::::::::::::::::::: APPLICANT.
VERSUS
MARY WAMBOI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT.
R U L I N G.
1. The Notice of Motion dated 16th July, 2009 as I understand it, it seeks for summary judgment against the defendant and also seeks for the defence by the defendant to be struck out. This application is brought under the provisions of Order XXXV Rule 1 (1) Order VI rule 13 (1) and ( c). This application is predicated on the grounds that the plaintiff is the registered proprietor of a parcel of land known as Trans Nzoia/Sitatunga/18. It is stated that the defendant is a trespasser on that parcel of land. She has no defence capable of proceeding to trial, the defence on record is merely meant to delay the effectual conclusion of the matter. This application is also supported by the plaintiff’s affidavit sworn on 14th August, 2009.
2. According to the applicant he purchased the suit premises on 10th May, 1994 from Francis Kabindio for Ksh. 130,000/= where upon the vendor transferred to him the property and he charged it to Kenya Commercial Bank. He enclosed a copy of the title which he claims is protected under section 27 and 28 of the Registered Land Act (Cap 300).
3. The applicant also claims that all his efforts to have the defendant vacate the suit premises had been unsuccessful, thus he filed the present suit seeking for an order of eviction. This application was filed and served upon the respondent. However, the respondent has not filed any replying affidavit or grounds of objection.
4. I have considered this application, the grounds in support as well as the defence filed by the respondent. The plaintiff has exhibited a copy of the title for the suit premises which was issued on 10th May, 1994. The plaintiff is the registered proprietor of the suit premises. The plaintiff claims to have bought the land from Francis Kabindio. The defendant claims that the plaintiff fraudulently obtained the title which was originally their family land. However there is no material to support the allegations of fraud as the respondent did not file any replying affidavit or grounds of opposition to support the contention that the suit premises belonged to her family.
5. Accordingly the application dated 16th July, 2009 which in any event is not opposed is hereby allowed. The defence by the defendant dated 29th May, 2006 is struck out and plaintiff is granted prayer No. (a) Of the plaint. The defendant is hereby given 60 days within which to vacate the plaintiff’s parcel of land no. Trans Nzoia/Sitatunga/18 and failure to do so, the plaintiff may evict the defendant.
Ruling read and signed this 17th day of Febrary, 2011.
M. K. KOOME.
JUDGE.