[2015] KEHC 2872 (KLR)
The court found that the plaintiff had established ownership of the suit property through production of the certificate of lease and evidence of payment of rates and rents. The defendants, having been duly served by substituted service and failing to appear or defend the suit, did not challenge the plaintiff's title...
Source-derived case information.
- Citation
- [2015] KEHC 2872 (KLR)
- Parties
- Plaintiff: Doshicom Developers Limited; Defendant: Abdalla Bakari & 41 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 162 of 2012
- Procedural Posture
- Formal Proof / Judgment
- Outcome
- Plaintiff's suit allowed as prayed. Orders (a) to (f) of the plaint granted.
- Legal Topics
- Ownership Disputes, Eviction, Trespass, Injunctive Relief
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Doshicom Developers Limited
Plaintiff
Abdalla Bakari & 41 Others
Defendant
Procedural Posture
Formal Proof / Judgment
Legal Issues
- 1 Whether the plaintiff is the registered owner of the suit property and entitled to possession and enjoyment of it.
- 2 Whether the defendants are trespassers on the suit property and liable to eviction and demolition of their structures.
- 3 Whether the plaintiff is entitled to a permanent injunction restraining the defendants from interfering with the suit property.
Ratio Decidendi
The court found that the plaintiff had established ownership of the suit property through production of the certificate of lease and evidence of payment of rates and rents. The defendants, having been duly served by substituted service and failing to appear or defend the suit, did not challenge the plaintiff's title or assert any interest in the property. The court held that the plaintiff is entitled to possession, enjoyment, and protection of its property rights as provided under the Land Registration Act. The plaintiff's evidence of trespass and loss was uncontroverted. Consequently, the court granted the orders sought, including a declaration of ownership, eviction of the defendants,...
Court Disposition
Plaintiff's suit allowed as prayed. Orders (a) to (f) of the plaint granted.
Orders
- Declaration that the plaintiff is entitled to access, possession, and enjoyment of Mombasa/Mainland South/block 1/1817.
- Eviction of the defendants from the suit property.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC No. 162 OF 2012
DOSHICOM DEVELOPERS LIMITED.......................PLAINTIFF/APPLICANT
VERSUS
ABDALLA BAKARI & 41 OTHERS.....................RESPONDENT/DEFENDANT
J U D G M E N T
The plaintiff Doshicom Developers Ltd sued forty two (42) defendants for the following orders:
A declaration that the plaintiff as the registered owner of the suit property is entitled to access to, possession and enjoyment of the suit property Mombasa/Mainland South/block 1/1817.
An order for the eviction of the defendants from the suit property.
An order for the demolition of the illegal structures on the suit property
A permanent injunction to restrain the defendants whether by themselves, servants or agents or otherwise howsoever from entering upon, remaining on, carrying out any construction or activity or having any adverse dealing with the suit property.
The O.C.S Likoni police station to provide necessary assistance in enforcing orders (b) (c) and (d) herein.
Costs of and incidental to this suit.
Such other order or fur the orders as the justice of this case may necessitate.
The defendants were served by way of substituted service following an order of the court issued on 14th October, 2013. Subsequent to this order an advertisement was placed by the plaintiff in the daily nation newspaper of 16th October, 2013 and a cutting of the said newspaper annexed to the affidavit of service was filed in court on 13th November, 2013 alongside the request for judgment. The defendants failed to enter appearance or to defend this suit therefore it was fixed for formal proof.
The case proceeded to formal proof on 16th April, 2015 with the plaintiff calling one witness P W 1 is Ashok Labhshanker Doshi who said he is a director with the plaintiff. The plaintiff is engaged in business of hardware and property development. His evidence is that property title No. MNS/BLOCK1/1817 belongs to the plaintiff and proceeded to produce a copy of lease document and certificate of lease in evidence. P W 1 continued that the plaintiff was in possession of and he had even built a wall around the suit premises.
P W 1's further evidence is that the defendants entered the plot and built up structures, some permanent others temporary upon which he made a complaint to the O C S Likoni on 14. 5.2012 for the offence of trespass. The complaint was made via a letter which he also produced in evidence but the police did not respond. It is the plaintiff's case that they pay rates and rents as documented by the receipts filed in court. The people living on the land have demolished the walls. P W 1 concluded this case by saying the plaintiff has suffered loss as he had been denied access to use the land and he is the rightful owner. The plaintiff's manager had asked the defendants to move out to no avail thus necessitating this suit. He urged the court to grant the orders sought.
The plaintiff has laid evidence before this court that he is the owner of the land in dispute by presenting certificate of lease and rates and rents receipts. It has also shown that before filing this suit he issued notice of complaint to the O C S to assist it access his land which complaint was not acted upon. The plaintiff's title has not been challenged by any of the defendants and therefore he is entitled to enjoy the use of this land as set out in section 247(b) of the Land Registration Act - which gives a proprietor ``leasehold interest described in that lease together with all implied and expressed right as and privileges belonging or appurtenant thereto subject only to implied or expressed agreements, liabilities or incidentals to the lease''
The title/certificate of lease shows the property is not encumbered. The defendants did not come to court to establish their interests if any. This court finds the plaintiff's case as established within the standard set in law. I find no reason not to grant the orders sought and consequently I do allow the orders contained in prayer (a) -(f) of the plaint as prayed.
Dated and delivered in open court at Mombasa this 16th day of June, 2015.
A OMOLLOann
JUDGE