[2013] KEHC 2969 (KLR)
The court found that the plaintiff had demonstrated, on a balance of probabilities, that he was the registered owner of parcel No. SIAYA/MAHAYA/247 and that the defendant had unlawfully entered, occupied, and developed the land without consent. The defendant's failure to respond or contest the claim, despite proper...
Source-derived case information.
- Citation
- [2013] KEHC 2969 (KLR)
- Parties
- Plaintiff: Domnic Akumu Nyajure; Defendant: Robert Owuor Ojalla
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 51 of 2011
- Procedural Posture
- Civil Suit / Final Judgment After Formal Proof
- Outcome
- Judgment for the plaintiff as prayed in the plaint.
- Legal Topics
- Illegal Entry, Eviction, Permanent Injunction, Proprietary Rights, Land Ownership, Trespass
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Domnic Akumu Nyajure
Plaintiff
Robert Owuor Ojalla
Defendant
Procedural Posture
Civil Suit / Final Judgment After Formal Proof
Legal Issues
- 1 Whether the defendant illegally entered and occupied the plaintiff's parcel of land No. SIAYA/MAHAYA/247.
- 2 Whether the plaintiff is entitled to an order of eviction, permanent injunction, and costs against the defendant.
Ratio Decidendi
The court found that the plaintiff had demonstrated, on a balance of probabilities, that he was the registered owner of parcel No. SIAYA/MAHAYA/247 and that the defendant had unlawfully entered, occupied, and developed the land without consent. The defendant's failure to respond or contest the claim, despite proper service, left the plaintiff's evidence uncontroverted. The court held that the plaintiff was entitled to the reliefs sought, including eviction, a permanent injunction restraining the defendant from further interference, and costs of the suit, as the defendant's actions constituted a clear violation of the plaintiff's proprietary rights.
Court Disposition
Judgment for the plaintiff as prayed in the plaint.
Orders
- The defendant is ordered to vacate parcel No. SIAYA/MAHAYA/247 forthwith.
- A permanent injunction is issued restraining the defendant, his servants, agents, and/or assignees from entering, remaining on, or interfering with parcel No. SIAYA/MAHAYA/247.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL SUIT 51 OF 2011
DOMNIC AKUMU NYAJURE............................................PLAINTIFF
VERSUS
ROBERT OWUOR OJALLA..........................................DEFENDANT
J U D G M E N T
The suit was filed here on 13/5/2011 vide a plaint dated 9/3/2011. The plaintiff – DOMINIC AKUMU NYANJURE– claims that the defendant – ROBERT OWUOR OJALLA – has illegally entered his parcel of land NO.SIAYA/MAHAYA/247 and commenced developments. It was pleaded that the defendant together with his servants, agents and/or assignees did so in August 2010. The defendant is said to have constructed a home on the land. He has also ploughed the land and planted various crops. He is also excavating murrum for sale.
The plaintiffs asks for an order of eviction, permanent injunction and costs against the defendant.
It appears clear that the defendant was served but he didn't enter appearance and/or file defence. Record shows – see affidavit of service filed on 14/9/2011 and dated the same – that the defendant was served by one DANIEL RORO OCHIENG NYANGWARA on 31/8/2011 at 7. 24A.m at his house in presence of his wife DORINE AUMA OWUOR. DANIEL did not know the defendant and was led to his house by the plaintiff who pointed out the defendant to him.
Interlocutory judgment was requested for vide a letter filed on 14/9/2011 and dated the same. The Court entered that judgment on 23/9/2011. The matter was therefore fixed for formal proof, which the court entertained on 20/5/2013:
Only the plaintiff testified and he reiterated much that is already in the plaint. In addition the plaintiff said he got information about the defendants entry into his land while in Eldoret. It was around 14/8/2010 and he travelled and went to defendants home. The defendant chased him away with a panga.
During hearing, the title deed (Plf EX No.1) and a search at Lands office as to ownership of the land (plf EX NO.2) were availed as exhibits.
This matter is not controverted. Interlocutory judgment has already been entered and this is the final judgment. On balance, the plaintiff has demonstrated well that the defendant has illegally entered his parcel of land No. SIAYA/MAHAYA/247and has not only constructed a home but also cultivated various crops like maize and cassava. He is also excavating murram for sale.
This seems to be in flagrant violation of the plaintiffs proprietary rights and this is why the plaintiff has come to court for redress.
Without much ado, the court finds the plaintiffs case well proved on balance and the plaintiff is granted prayers (a) (b) and (c) as prayed for in the plaint.
A.K. KANIARU – JUDGE
31/7/2013
31/7/13
A.K. Kaniaru – Judge
Roseline O. - Court clerk
No party present
Interpretation – English/Kiswahili
Onyango P.D. For Kowino for Plaintiff
COURT: Judgment read and delivered in open COURT.
Right of Appeal – 30 days.
A.K. KANIARU – JUDGE
31/7/2013